Untitled Texas Attorney General Opinion ( 1974 )

June 5, 1974
The Honorable Emory C. Walton Opinion No. H- 320
Criminal Dirtrict Attorney
P. 0. Box 527 Re: Prorecution of r+?r~q
Eaetknd, Texar 76440 for por~ersion of aa
alcoholic beverqq
Dear Mr. Walton:
You have asked two quertione concerning the prorecution of minorr
and have lupplfed the following factr:
“On October 16, 1973, a 16-year-old male went
into a liquor ltore and plrchared beer and wine for,
and at the requeet of, four other minor’boyr and girls.
ranging frgm .I2 to IS year.8 of age. After the purchare
by~tbe 16ryear-old bby, the adult operator of the liquor
. store delivered the purchared~beer and wine to the car
~ontsining the four minora (agee 12 to lS.yeare); then,
the 16-year-old boy got into hir car and Left and the four
otheiminorr left’in theii cri with the ‘beer and w-he,
after which thq four minorr were immediately appre-
hended. The 16-year-old male did not misrepresent hir
age ae being.18, but simply said that he had no identifi-
cation to prove his age to the liquor store operator. The
adult operator of the liquor ltore wae filed upon and en-
tered a ‘guilty’ plea to making alcoholic beverage8 avail-
able tb the laid four minor male and female children.
No chargem have been filed against the five minore, and
the rn+tor ia pending. ”
Your quortione aro:
“1. Whsther or not the four minor childron (one girl,
rge 12, one girl, ago 14, and two boya. age 151 can
,p. 1477
. .
The Honorable Emory C. Walton, page 2 (H-320)
be prosecuted for the alleged one-time offense
of ‘Minor in Poeeeeaion of Alcoholic Beverage’?
“2. Whethir or not the 16-year-old boy can be pro-
#ecuted for the alleged one-time offense of ‘Making
Alcoholic Beverage Available to Minors’?”
The relevant statute is Article 666-17, $ 14(a) and (b), Vernon’s Teqe
Penal Auxiliary LAWS [codified at the time of the alleged offenre PL Ariicle
666-17, iI4(a) and (b); Vernon’, Teur Penal Code] which provider:
“(14)(a)It lhall be unlawful for any perron uuder
the age of twenty-ono (2l) year& to purchase any alcoholic
beverage, . . . . It lhrll further be unlawful for any
porron tier the age Of twenty-one (21) year* to porrerr.
. . . or to consume any alcoholic beverage. . . .
“(b) It lball be unlrarful jo pprchaee an alcoholic
beverage for or give, or knowingly make available, an
alcoholic bovdrago to a porron under the ago of twenty-
on0 (24 yoarr. . . .I’
Article 5923b, Vornon’e Toue Civil Strtutee, hae the effect of euboti-
tuting eighteen years of age for the articlc’e reference0 to twenty-one y&Ts
of ago. Violatfon ir punirhable by fine only. Attorney General Opinion H-82
( 1973).
At the time of the alleged offenea , criminal prosecutions of young per-
l~ewere governed by Actr 1973, 63rd Leg., ch 544. p. 1484. 52 (formerly
Article 30, Vernon’r Texas Penal Code, and now found in substance at $8.07.
Vernon’m Toxaa Penal Code). That etatute providld in pert:
.. “(a) A person may not be prosecuted for or convicted
for any offenee that he committed when younger than 15
years of age, except:
“(1) porjury, when it appear, by proof that he had
iufficient discretion to underetand the nature end
obligation of an oeth;
p. 1478
The Honorable ‘Emory C. Walton, page 3 (H-320)
“(2) a violation of a penal statute cognizable
under Chapter 302, Actr of the 55th Legis-
laturb, Regular Session, 1957, aa amended
(Article gO2e, Vernon’s Texas Penal Codc);or
“(3) a violetion of a motor vehicle traffic ordi-
nance of an incorporated city or town in this
rtate.
‘l(b) Unless the juvenile court waives juriadic-
tion and certifiee the individual for criminal prosecution,
a perron nuy not be proeocuted for or convicted of any
offoneo committed before roaching 17 yeare of age,
except:
“(1) perjury, when it lppoare by prooj that he
h a dlufficiont diecrotion to undoretand the nature
and obligation of an oath;
“(2) a violation of a penal ltrtute cognizable
undor Chapter 302, Acte ?f the 55th Lagielature,
Regular, Sorrion, 1957, ae amended (Article BO20,
Vornon’e Texae Penal Code); or
“(3) a violation of a motor vehicle traffic ordinance
of an lncerporated city or town in this state. . . .‘I
Section 51.04. Vernon’e Texaa Family Code, provides that tbe juvlznllc
court hae excluiive original juriediction over proceedingr under Title 3 04 tbz
Family Code. Section (a) of Article .53.01, which ia a part of Title 3, provides
that:
“(a) On referral of a child or a child’. case to the
office or official derignated by the juvenile court, the
intake officer. probation officer, or other perron lulho-
rfred by the court lhall conduct a preliminary inve#tigetion
to detormfno whothor:. . . .
p. 1479
The Honorable Emory C. Walton. page 4 (H-3201
“(2) there ie probable cause to believe the
child engaged in delinquent conduct or conduct
indicating a need for supervision. . . .I’
Section (b) providee that if “there is no probable cau~le. . . the child
rh.all immediately be released and proceedings terminated. ” Section 51.03
of Title 3 of the Family Code define8 delinquent conduct and conduct indica-
ting a need for l upervieion •#~ lollowe:
“(a) Deliquent conduct ir conduct, other than
a traffic Offenro, that violatoe:
“(I) a penal law of thia state punirhable
by imprironment or by confinement in jail; or
“(2) a rearonable and.lawful order of a
juvenile court enferod under Section 54.04 or
54.05 of thie code; except tbat a violation of a
rearonablo and lawful order of a juvenile court
entered purmant to & determination that the
child tingaged in conduct indicating a neod for
ruporvirion aa defined in Section 51.03(b)(2) or
5t.O3(b)(3) of thie code doee not constitute delin-
quent conduct.
“(b) Conduct indicating a need for lupervlsion in:
“(I) conduct, othei than a traffic offense,
that on three or more occasions violrtea either
of rho following:
“(A) the penal Iewe of thie rtate of the
grade of misdemeanor that are plniahable by
flno only: or
“(B) the penal ordinencer of any political
lubdivielon of thir ltate;
p. 1480
The Honorable Emory C. Walton. page 5 (H-320)
“(2) conduct which violatee the com-
puleory lchool lttoadance kwe;
Y(3) the voluntary absence of a child
from hlr home without the coneent of hi6
parent or guardian for a substantial length
of timo or without intent to return; or
“(4) the.vio(ation of an order of a juve-
nils court entered under Section 54.04 or
54.05 of thie coda. purrkant to + determination
thit the child ongagod in conduct which violater
the compuleory lcbool lttondince lawe or the
voluntary rbronco of tho child from hie homo
rithout the conoont of tdr parent or guardian
. for l lubatanthl hngtb of time or without.
htsnt to rotura.”
.
None of there aro applicable to the. factr rot forth in your opinion roqusqt
and in vlor of thire rktutory limitrtione lnd’dofiuitionr, we do not bolipyk
that Title 3 of the Family Code io applicable to one-time vio&tionr of A+-
cle 666~.17(14).. .
Although the detaile of tho etatutor have chinged, the baric atatstQ.ry
lcheme hae not, and three A,ttornry Ge,aoraL:ppinjonr have diecurled *c
rslationrhtp among tho;e. ihreo lcte, (ArticlC 66647(14), V. T. P. C., (now
V. T. P.A. L), Acte 1973, 63rd Leg., ch. 544, p. 1484, $ 2 (formerly
Article 30, V. T. P. C., and now $8.07, V. T..P. C.)~rnd ,Title 3 of the
Femi’ly Codo, erp. 5 s St.03 rnd U.04 (formerly Article 2338-1,V.T.C.S.)).
Attorney General Opinion WW-1171 (.L961) concluded that Artic~le 666-L?(I4)
was “a rpecial exception to the general propopition that children cannqt he
convicted of a cri&nal offonso. ” The opinion did not codrider the lorrc$r
Artlclo $0 of the Penal Code. Attorney Gcniral Opinion M-t63 (1967) held
that Article 30 precluded conviction of children under the age of fifteen years.
Attorney General Opinioa M-327 (1968)involved ofJeneee under Article 6&6.-I7
(IO committed .by parroam fifteen yoara of ‘age or oldor but younger th+b \he
ago no r nvly lrtabliohlng adult rorpoarlbility. Tho opiaion coucludod +a!
p. .1481
l-ho Honorable Emory C. Walton. p.gs 6 (H-320)
loch one-time offendera 4re “not within the jurimdistion of the juvenile
court 4nd mry ba proaecuted.for such violrtion in 413appropriate crimin41
court b4ving jurladiction of rucb ~ffensc. ” 4nd that in nuch cases the pro-
vision requiring 4 tr4nafar from criminal courtr to the juvenile court
(now F4mily Code, ( 51.0‘8, would not 4pply.
We hrva #aan nothing in the action of rubsequent legial4tures to
indicate 4 cb4nge from the interpretation d the rt4tuter advanced by
there opinionr. When the bglrl4ture doe* not amend a st4tutc to rlter
a consimtsnt construction given it by the Attorney Cener41, that conatruc-
tion ia entitled to great wilgbt. Sah Antonio Union Junior College Digtrict
v. Daniel, 206 S.W.2d 995 (Tex. 1947).
Therefore, it i4 our opinion that. under the facta you describe, tho
,poraona under the 4ge of fifteen ya4re are not l ,ubjsct to criminal prorocu-
tion or to juvaailo proceodlngm 4nd tht tboro perronr fifteen yearr of rge
4nd 4b6v4 4rd l ubjoct to prorecutlon in t&o 4ppropri4to crimhl court.
SUMMARY
Ono~timo violatorr of Article 666-17(14)(a) and
(b), V. T, P.~A. L. , which prohibit4 porrcmrion or con-
rumptiod of llc 0h 01 bevorager
ic by 4 minor or furnirb-.
ing rlcoholic bovorager to 4 mlndr, 4ro not rubjoct to
crimim1 proraeution or to juvenile proceedingr if they
are under fifteen yearr of 4ge. Tbey are li4ble to
crimin41 proaocution if they 4re fifteen yerrr of 4ge
or oldor. A ono-time offender of Article 666-17(14)(4)
or (b) ii not #ubJect to juvenile prbceedingr.
Very truly yours,
u Attorney CAnoraL of Tour
p. 1482
The Honorable Emory C. Walton. page 7 (H-3201
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1483