Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
.Jul;11, 1986
JIM MATTOX
Attorney General
Supreme Court Suildlng Mr. Ron Jackson Opinion No. JM-520
P. 0. Box 12548
Austin, TX. 78711.2548
Executive Director
51214752501 Texas Youth Comiss:ion Re: Whether Acts 1985, 69th Leg.,
Telex 9101874.1367 P. 0. Box 9999 ch. 596, at 4559, impliedly repealed
Telecopier 512/47502S6 Austin, Texas ?87ti6 section 51.03(b)(5) of the Family
Code, which defines, inhalation of
714 Jackson, Suite 700
paint fumes or glue as "conduct
Dallas, TX. 75202.4508 indicating a need for supervision"
214~742-8944
Dear Mr. Jackson:
4824 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793
The Family Co&c provides for court proceedings in regard to
915/533-344 delinquent children. Family Code 9951.01-54.10. The code creates two
different categories of conduct over which juvenile courts exercise
jurisdiction: "delktquent conduct" and "conduct indicating a need for
.- 1 Texas, Suite 700 supervision." Secthn 51.03 of the code defines those terms:
.uston, TX. 77002.3111
;13/2236BS8
(a) Delinquent conduct is conduct, other than a
traffic olifense,that violates:
806 Broadway. Suite 312
Lubbock, TX. 794013479
(1) a ,penal law of this state punishable by
SW747-5238
impsisonmmt or by confinement in jail; or
4309 N. Tenth, Suite B (2) a reasonable and lawful order of a
McAllen, TX. 7SWl-1685 juvenile court entered under Section 54.04 or
5121682.4547
54.05 of 1:hiscode, including an order prohibiting
conduct r,z:Eerred
to in Subsection (b)(4) of this
200 Main Plaza, Suite 400 section.
San Antonio, TX. 782052797
512/2254191 (b) --
Conduct indicating a need for supervision is:
An Equal Opportunity/
(1) curtduct, other than a traffic offense or
Affirmative Action Employer other than an offense included in Subdivision (5)
of this subsection, that on three or more
occasions violates either of the following:
(A) the penal laws of this state of the
grade of misdemeanor that are punishable by
fine 0113.~;
or
p. 2387
Mr. Ron Jackson - Page 2 (JM-520)
(B) the penal ordinances of any political
subdivision of this state;
(2) the unexcused voluntary absence of a child
on 10 or more days or parts of days within a six-
month period or three ol: more days or parts of
days within a four-week period from school;
(3) the volur,taryabsence of a child from his
home without the consent of his parent or guardian
for a substantial length of time or without intent
to return;
'(4) conduct which violates the laws of this
state prohibiting driving while intoxicated or
under the influenc:eof intoxicating liquor (first
or subsequent offense) or driving while under the
influence of any narcotic drug or of any other
drug to a degree! which renders him incapable of
safely driving ,I vehicle (first or subsequent
offense); or
(5) conduct Frohibited by city ordinance or by
state law involv1;g the inhalation of the fumes or
vapors of paint and other protective coatings or
glue and other ad&Ives. (Emphasis added).
Legislation enacted IT.1985 has created uncertaitityabout whether
paint and glue sniffing new constitute delinquent conduct or whether
such acts still constitute conduct indicating a need for supervision.
Acts 1985, 69th Leg., ch. 5!)6,at 4559. That legislation amended two
statutes that deal with abrse of paint and glue, articles 4476-13a and
4476-15, V.T.C.S.
Article 4476-13a, sectton 3, makes the inhalation of substances
containing certain "volatj.le chemicals" a penal offense. See art.
4476-13a. §2 (listing chemicals that are "volatile chemicals" for
purposes of article 4476-Ha). Paint or glue may contain a '!volatile
chemical." The 1985 legislation made a violation of article 4476-13a,
section 3, a Class B misd~!meanor. Previously it had been a Class C
misdemeanor. Thus, paint or glue sniffing may now constitute a Class
B misdemeanor under article.13a, section 3.
Article 4476-15 dea:ls with abuse of controlled substances
generally. The 1985 legislation amended article 4476-15 to add a
provision that specif~icall],
makes the inhalation of certain paints and
glues a Class B misdemeanor. Art. 4476-15, 554.13(j), (k). Previously
article 4476-15 had not contained a provision prohibiting inhalation
of such substances. In sh2rt. the effect of the 1985 legislation was ?
p. 2388
.
Mr. Ron Jackson - Page 3 (JM-520)
h
to wake paint or glue sniifing, which was previously punishable only
as a Class C misdemeanor. lpunishableas a Class B misdemeanor under
two different penal statutrs.
The Family Code speciiically provides that paint or glue sniffing
constitutes conduct .indicating a need‘for supervision. Family Code
§51.03(b)(51.. It also provides, however, that conduct that violates
a state penal law and i,s punishable by imprisonment constitutes
delinquent conduct. Family Code 151.03(a)(l). A Class B misdemeanor
is punishable by imprisomdent. Penal Code 412.22. A Class C
misdemeanor is not. Penal 'Code512.23. Thus, the effect of the 1985
legislation was to.make paint or glue sniffing, which had previously
been punishable by fine only, punishable by imprisonment.
Consequently, the literal language of section 51.03 now wakes paint or
glue sniffing both delinquent conduct and also conduct indicating a
need for supervision. The::efore,you ask whether the 1985 legislation
impliedly repealed section 51.03(b)(5), which makes paint or glue
sniffing conduct indicatin;3a need for supervision.
Two statutes relating to the same subject will stand unless there
is an irreconcilable conflict. Long v. City of Fort Worth, 333 S.W.Zd
644. 646-47 (Tex. Civ. App. - Fort Worth 1960. no writ). We think
that in this case the 1985 change in the penal laws created a conflict
within section 51.03 of ttieFamily Code because we do not think that
the categories of "delinquent conduct" and "conduct'indicating a need
for supervision" were intended to overlap, but we believe that the
provisions can be harmonis,zd.
A juvenile court nay comnit a child to the Texas Youth Council
for delinquent conduct but not for conduct indicating a need for
supervision. Family Code: 554.04. Because different consequences
follow from delinquent con'iuctthan from conduct indicating a need for
supervision, we must conclude that the categories were intended to be
mutually exclusive. Therefore, since paint and glue sniffing cannot
be both delinquent conduc.:and conduct indicating a need for super-
vision, we must determine the current status of paint and glue
sniffing under section 51.13 of the Family Code.
The goal of statutory construction is to ascertain legislative
intent. Kn1gh.tv. InternaLtonal Harvester Credit Co., 627 S.W.2d 382,
384 (Tex. 1982). In 1977 the legislature amended section 51.03 to add
subsection (b)(5,x .which specifically designated paint and glue
sniffing conduct indicat1r.ga need for supervision. Acts 1977, 65th
Leg. t ch. 340, at 906. The 1977 legislation was an explicit determina-
tion that paint and glue sniffing should not be treated as seriously
as delinquent conduct bu,: that paint and glue sniffing should be
treated more seriously than conduct within the category of mis-
demeanors punishable by f:.neonly. (Any single incidence of glue or
paint.sniffing constitutes conduct indicating a need for supervision,
p. 2389
,
Mr. Ron Jackson - Page 4 :JM-520)
?
whereas three incidences oE conduct in the category of misdemeanors
punishable by fine are neczessary to constitute conduct indicating a
need for supervision. FaxiVy Code 0051.03(b)(l)(A), 51.03(b)(5).) We
think that the legislature's enactment of a bill that dealt specifi-
cally with the treatment of.paint and glue sniffing for purposes of
section 51.03 indicates that the legislature carefully considered how
such conduct should be treated for purposes of the law governing
delinquent children.
We find nothing in the 1985~legislation discussed above that
indicates that the 1985 legislature reconsidered the issue of how
paint and glue sniffing slould be treated for purposes of the law
governing delinquent children. The 1985 legislation deals exclusively
with penal statutes. It makes no reference to delinquency statutes.
However, because section 51.03(a)(l) of the Family Code relies on the
gradation of Cl-illliIld conduct under penal statutes to define
"delinquent conduct," the 1085 legislation had at least the apparent
effect of including paint and glue sniffing in the category of
"delinquent conduct" for purposes of the law governing delinquent
children. We find no indication, however, that the legislature
specifically intended that effect or that the legislature even
considered the effect that a change in the penal law might have on
statutes dealing with delinquent children. Therefore, we do not think
that the legislature intended to repeal.section 51.03(b)(5) when it -,
increased the penalty for paint and glue sniffing under the criminal
law.
Also, implied repeals iarenot favored. Standard v. Sadler, 383
S.W.2d 391 (Tex. 1964). A general law does not ordinarily repeal a
more particular law on the: same subject. Flowers v. Pecos River R.
Co.. 156 S.W.2d 260. 263, s:Tex.1941). Rather, the particular law is
--
considered an exception to the general law. Id. We think the rule of
Flowers provides help in construing the current.meaning of section
51.03. In defining "delinquent conduct" the legislature relied on the
general category of penal offenses.punishable by imprisonment, which
only later came to include paint and glue sniffing. In defining
"conduct indicating a need for supervision," the legislature spoke
specifically to the matte!: of paint and glue sniffing. We do not
think that a change in the criminal law that enlarges the conduct
included in the general c.ategory of penal offenses punishable by
imprisonment should be construed to nullify a provision specifically
governing. the treatment of paint and glue sniffing for purposes of
juvenile adjudication.
In addition, since statutes governing the conduct of juveniles
have quasi-penal consequenxs, they should be construed in favor of
the individual who is accused of their violation.
p. 2390
Mr. Ron Jackson - Page 5 (JM-520)
Therefore, we conclud,?that the 1985 change in the treatment of
paint and glue sniffing for purpose of criminal law did not impliedly
repeal the legislature's sI,eci.fic
treatment of the matter of paint and
glue sniffing for purposes of juvenile law. Section 51.03(b)(5)
should be read as an except,ionto section 51.03(a)(l).
SUMMARY
Section 51.031:b)(5)of the Family Code has not
been impliedly repealed. Section 51.03(b)(5),
which provides that paint and glue sniffing
constitute coriuct indicating a need for
supervision for purposes of court proceedings
against delinquent children, is an exception to
section 51.03(a)(l), which provides that conduct
that violates ,a penal law punishable by
imprisonment ir: delinquent conduct against
delinquent childl,en.
-Jz&
JIM MATTOX
Attorney General of Texas
JACK RIGHTOWER
First Assistant Attorney Gmeral
MARY KELLER
Executive Assistant Attormy General
RICK GILPIN
Chairman, Opinion Committee:
Prepared by Sarah Woelk
Assistant Attorney General
p. 2391