Untitled Texas Attorney General Opinion ( 1961 )

Honorable Weldon Holcomb Opinion No, WW-1171
Criminal District Attorney
Smith County Re: Whether Article
Tyler, Texas 666-17, Vernon's
Penal Code, which
makes the purchase
of alcoholic bev-
erages, etc. by
persons under 21
years of age,
supersedes Sections
12 and 13 of-Ar-
Dear Sir: title 2338-1, V.C.S.
Your request for an opinion reads in part:
"The pertinent problem for which we are askin$
an opinion from your office involves the follow-
ing:
"Article 2338-1, Revised Civil Statutes of
Texas, Section 12, in part reads as follows:
"'If during the pendency of a criminal charge
or indictment against any person in any court
other than a Juvenile Court, it shall be ascer-
tained that said person is a female over the age
of ten (10) years and unde~rthe age of eighteen
(18) years, or is a male person over the age of
ten (10) years and under the age of seventeen
(17) years at the time of the trial for the al-
leged offense, it shall be the duty of such court
to transfer such case immediately together with
all papers, documents and testimony connected
ther;ewithto the Juvenile Court of said county
000
"Section 13, reads in part as follows:
Hon. Weldon Ho:lcomb,'Pa,ge
2 (wwn7:1, )
II ,
No adjudication upon the status of any
child'i~ ihe jurisdiction of'the court shall
operate to impose any of the civil disabilities
ordinarily imposed by conviction, n,orshall any
child be deemed a criminal by reason of such ad-
judication, nor shall such adjud,icationbe deemed
a conviction, nor shall any child be charged with
or convicted of a crime In any court e e .,'
"The above quoted law is a part of that which
was passed by the Legislature in the Acts of 1943,
48th Legislature, Page 313, Chapter 2a.
"Article 666-17, Vernon's Annotated Penal Code,
Volume lA, Section 14(a), reads as follows:
"(It shall be unlawful for any person under the
age of twenty-one (21) years to purchase any alco-
holic beverage, and upon conviction thereof shall
be fined in a sum of not less than Ten Dollars
($10) or more than One Hundred Dollars ($100). It
shall further be unlawful for any person under the
age of twenty-one (21) years to possess, unless
such person under the age of twenty-one (21) years
be a bona fide employee, as permitted elsewhere in
this Act, on the licensed premises where such alco-
holic beverage is possessed, or consume any alco-
holic beverage in any public place unless at the
time of such possession or consumption such person
under the age of twenty-one (21) years is accompanied
by his or her parent, guardian, adult husband or
adult wife, or othe:r adult person into whose custody
he o:rshe has been committed for the time by some
C3Llrt,who is actually, visibly and pe~rsonally
present at the time such alcoholic beverage is
possessed or consumed by such person under the age
of twenty-one (21) years, and upon convi.ctionthere-
of shall be fined in a sum of not less than Ten
Dollars ($10) or Moorethan One Hundred Dollars
($1003*.'
"This statute was passed by the Legislature in
the Acts of 19551 54th Legislature, Page 1149,
Chapter 433, Paragraph 1,
. ,
Hon. Weldon Polcomb, Page 3 (WW-1171)
"Our problem is this: There i.san apparent
direct conflict between the t,woabove quoted
statutes. The Juvenile Statute above quoted,
assed in 1943, states that females under eighteen
P18) and males under seventeen (17) shall not be
charged with or convicted of a cr.ime'inany
court. The latter statute, 666-17, Section 14(a),
states, in substance, that any person under the
age of twenty-one (21) shall be fined upon con-
viction not less than Ten nor more than
One Hundred ($100) Dollars.
"Does the latter statute passed in 1955,
supersede the Juvenile Statute (19431, because
Section 14 of the Act, passed in 1955, states
that all conflicting laws and parts of laws to
the extent of such conflict are repealed, au-
thorize the corporation or justice courts to
assess a fine in accordance with the ~instant
statute and en~forcesuch judgment aga~inst
females under the age of eighteen (18) and
above the age of ten (lo), and males under the
age of seventeen (171 and over the age of ten
(lO)?ll
Prior'to the passage of Article&6-17 in 1955, the
sale of alcoholic beverages to a "delinquent child" (fe-
males over 10 years of age and under 18 years of age and
males over 10 years of age and under 17 years of age) was
illegal and imposed certain penalties upon the seller, but
no effecti~vesanction was provided against t.hechild. The
individu~alsale to or possession of alcoholic beverages by
a child apparently d~idnotsonfer jurisdiction upon the
juvenile court in and of itself to support juvenile action.
However, hab,itualuse o:rpossession by a chi~lddid confer
jurisdiction under the juvenile la,wsand ft stlli-does. See
Art, 2338-1, Sec:3(~fl,V,C,S,
In this situation the ~Legis:Lature
was ron.frontedwith
the problem and decided to i~mposean enforceable sanction
upon a child for a one-time use or possession of alcoholic
beverages, We have concluded that the Leg:islatureelected
to use a cr,iminalsanctl~onIanadd:itionto all of the present
Hon. Weldon Holcomb, Page 4 (WW-1171)
remedies now existing under the juvenile laws and passed
the act as a special exception to the general proposition
that children cannot be convicted of a criminal offense.
Thus the situation came about that after the passage
of this act the juvenile authorities had all of the power
and authority they formerly had but that there has been
added the power to impose a fine and criminal proceeding
upon a child for the possession and use of alcoholic
beverages. We arrive at this conclusion because of the
following cases:
In Ellis v. Holcombe,'69 S.W.2d 449 (Civ. App., 1934,
Error Ref. May 2 1934) the court states the general rule
covering apparenily conflicting statutes as follows:
"In support of their proposition above
stated, appellees cite and rely upon the
well-settled statutory rule of decision that
repeal of an existing statute by implica-
tion is never favored, and a repeal should
only be implied when the conflict between
the latter and former statutes is so
positive that the purpose to repeal is
manifest. The antagonism must be so
pronounced that both statutes cannot stand.
'Though they seem to be repugnant, if it
is possible to fairly reconcile them such
is the duty of the court. A construction
will be sought which harmonizes them and
leaves both in concurrent operation
rather than destroys one of them. If the
later statute reasonably admits of a
construction which will allow effect to
the older law and still leave an ample
field for its own operation, a total re-
pugnance cannot be said to exist, and
therefore, an implied'repeal does not
result, since in such cases both may
stand and perform a distinct *** office."'
Article 2338-1 is taken from the Juvenile Cow& Act.
The purpose of which article was to substitute entirely new
. .
Hon. Weldon Hoicomb, Page 5 (ww-1171)
proceedings in the nature of civil proceedings covering
juvenile offenders and as such it would be classed as a
"general" law. The Texas Liquor Control Act, Article 666-1,
etc.. Vernon's Penal Code. has been classed bv our courts
as a-"special" act. Hall&n V* Texas Liouor Control Board,
166 S.W.2d 175 (Civ. App., Error Ref. Dec. 16, 1942). The
question therefore is whether the special act, (Texas
Liquor Control Act), can be reconciled with the general
statute (Juvenile Court Act). Our Supreme Court in the
case of Sam Bassett Lumber Co. v. Citv of Houston, 145 Tex.
492, 198 S.W.2d 879 (19471, pronounced the general rule at
Page 888 when it said:
"The general rule is that when the law
makes a general provision, apparently for all
cases, and a special provision for a particu-
lar class, the general must yield to the
special insofar as a particular class is con-
cerned. P,e_re,z.
,v,.
Pe,r,e&59 Tex. 322. This
rule is based upon the principle that all
acts and parts thereof must stand if possible,
each occupying its proper place, and that the
intention of the Legislature is more clearly
reflected by a particular statute than by a
general one. Accordingly a specific act is
properly regarded as an exception to, or
qualification of, a general law on the same
subject previously enacted. In such a case
both statutes are permitted to stand, the
general one being applicable to all cases
except the narticular one embraced in the
s ecial act: Townsend v,.T.sXr.e_ll,,
118 Tex.
4t3, 16 S.w.2dei-F
We therefore agree with your conclusion that Section
666-17, insofar as it covers minors and juveniles is an excep-
tion to the general statutes covering juvenile offenders,
Article 2338-l. Such conclusion follows the intent of the
Legislature and allows the fining of such juvenile offenders
in order to better effectuate the intents and purposes set
out in the State Liquor Control Act.
Hon. Weldon Holcomb, Page 6 (WW-1171)
SUMMARY
Article 666-17, Section 14(a) which makes
the purchase of alcoholic beverages, etc. by
persons under twenty-one (21) years of age
is an exception to Sections 12 and 13 of
Article 2338-1, Vernon's Annotated Civil
Statutes, and as such makes persons under
twenty-one (21) years of age susceptible to
fines for violation thereof.
Very truly yours,
II
WIL WILSON
Attkrney General of axas
Byl+---LM
Norman V, Suare'
Assistant AttolfieyGeneral
NVS:bjh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Cass
L. P. Lollar
REVIEWED FOR THE ATTORNEY GENERAL
BY: HOUGHTON BROWNLEE