Untitled Texas Attorney General Opinion ( 1951 )

PRICE DANIEL
ATTORNEYGENERAL
Hon. James W. Mtller Opinion No. v-1283
County Attorney
Dallam County Re: Interpretation of House Dill
Dalhart, Texas 581, Acts 52nd Leg., R.S. 1951,
respecting punishment of minors
for driving while intoxicated.
Dear Sir:
Your recent request is for an opinion reconciling the
provlsions of House Bill 581 Acts 52na Leg., R.3. 1951, ch. 436,
p. 786, codified as Article 802d, V.P.C., with the provislbna of
Article 2X38-1, V.C.S. You also indicate concern as to whether
there is a conflict between the penalty provisions of House Bill
581 and those in Article 802, V.P.C.
Rouse Bill 581 creates the misdemeanor offense of driv-
ing a motor vehicle upon public roads, highways, streets, etc.,
"in a reckless manner, at an excessive rate of speed, or while
under the influence of intoxicating liquors," as defined, when
committed by minors fourteen through sixteen years of age. It
provides for a fine of not leas than $1.00 nor more than $50.00
upon convlctlon.
Article 2338-l is a comprehensive statute which sub-
stitutes juvenile courts for criminal courts to deal with any
child of a designated age who violates any law or ordinance or
is otherwise within the provisions of the statute. It sets
forth comprehensive provisions for the handling, care, and dls-
position of such children. It applies to female children over
ten and under eighteen years of age and male children over ten
and under seventeen years of age.
You are particularly concerned with ascertaining the
proper court in which to institute action against a minor who
violates Rouse Bill 581.
Rouse Bill 581 provides, inso far as pertinent, as fol-
lous:
"Section 1. Any minor who has reached his
or her fourteenth (14th) birthday but has not
reached his or her seventeenth (17th) birthday
and who drives or operates an automobile or any
other motor vehicle upon any public road or
Hon. James W. Miller, page 2 v-1283
highway in this State, or upon any street or
alley within the limits of an incorporated
city, town or village, in a reckless manner,
at an excessive rate of speed, or while under
the influence of intoxicating liquors, as here-
inafter defined in this Act, shall be guilty
of a misdemeanor and upon conviction -shallbe
punished by a fine of not less than One Dollar
($1) nor more than Fifty Dollars ($50).
II
: . . . .
"Sec. 3. Provided that for good cause
shown, and when It shall appear to the satis-
faction of the court that the ends of justice
and thenbest interest of the public as well
as the defendantwill be subserved thereby,
the~courts of the State of Texas having orig-
inal.jurisdiction of such criminal actions
shall have the power after convlction~or plea
of guilty to suspend the Imposition of such
fine landmay place the defendant on probation
for a period of ninety (90) days.
"Any such minor placed on probation shall
be under the supervision of such.court.
"Sec. 4. Nothing contained in this Act
shall be construed to repeal or affect any
other Statutes regulating the powers and du-
ties of Juvenile Courts; the provisions of
this Act shall be comulative with all other
Acts on this subject."
The provisions of House Bill 581 are clear and specific
and, but for Section 4 thereof, any conflicts between it and a
prior statute would result in an implied repeal of the earlier
statute to the extent of the conflict. Popham v. Patterson, 121
Tex. 615, 51 S.W.2d 680 (1932); Att'y Gen. Ops. V-1041 (1950)
and-.V-993(1950). It is also clear that, unless prevented by the
effect of Section 4, those courts normally having jurisdiction of
misdemeanor offenses punishable by fine only of $50.00 or less
would have jurisdiction of cases involving violation of its pro-
visions.
It is our opinion that to construe House Bill 581 as
providing for the prosecution of the offenses listed therein in
the same manner as any other misdemeanor cases involving a fine
only of $50.00 or less would not repeal or affect any other statutes
regulating the powers and duties of juvenile courts within the
meaning of Section 4.
Hon. James W. Miller, Page 3 v-1283
Section 13 of Article 2338-l establishes in the juvenile
court, thereby authorized and created, jurisdiction of a civil
nature only and provides that no adjudication by such court "shall
. . . be deemed a conviction." The juvenile court, therefore,
may not entertain jurisdiction of criminal cases, as such, which
is the nature of the prosecution contemplated by House Bill 581.
Such a construction of House Bill 581 does not take away any of
the powers or duties of juvenile courts.
Nor does House Bill 581 affect the exclusive jurlsdic-
tion of the juvenile court. By Section 5 of Article 2338-1,
juvenile courts only have "exclusive original 'urisdiction of
proceedings governing any delinauent child." iEmphasis added
throughout opinion.)
The offenses mentioned in House Bill 581 are not such
as to constitute the offender a "delinquent child," since Sec-
tion 3 of Article 2338-l defines that term to mean "any female
person over the age of ten (10) years and under the age of eigh-
teen (18) years and any male person over the age of ten (10)
years and under the age of seventeen (17) years: (a) who vio-
lates any penal law of this State of the grade of felony; b)
or who violates any penal law of this State of the grade of mis-
demeanor where the punishment prescribed for such offense may be
by confinement in jail," or who "habitually" does certain acts.
It is to be noted that the provisions of Section 4 of
House Bill 581 express no intent that it shall not repeal or
affect statutes dealing with proceedings involving unlawful con-
duct of minors, but is limited to an intent to leave unaffected
merely the "powers and duties of Juvenile Courts.!' Nothing in
House Bill 581 would prevent civil proceedings for correction of
a minor in the juvenile court. The Act Is merely "cumulative"
of, or in addition to, other statutes dealing with the conduct
of minors contrary to the penal statutes, authorizing an addi-
tional procedure in the nature of a criminal action against such
minor.
In so authorizing the criminal action and in
placing jurisdiction thereof in the courts which ordinarily have
jurisdiction of misdemeanor offensesof the grade prescribed by
House Bill 581, its provisions conflict with certain other pro-
visions of Article 2338-l and must, therefore, be construed to
effect a repeal to the extent of the conflict. For example,
Article 2338-l provides in Section 11, that peace officers and
probation officers may 'take Into custody any child who is found
violating any law or .ordinnnce,"and directs that the child be
brought before the juvenile court. The same section prohibits
officers from taking such child before "a Police Court or a
Justice of Peace Court." Section 12 requires that all criminal
Hon. James W. Miller, page 4 v-1283
cases involving the designated minors shall be transferred to
the juvenile court. Section 13 provldes that no child, as
defined; shall "be charged with or convicted of a crime in any
court." These provisions are-deemed to be superseded in so far
as they conflict with House Bill 581 but it is to be noted that
they are provislons.dealing with "powers and duties" of peace
officers, probation officers, police and justice courts, and
other courts, and such a repeal is not, therefore, inhibited by
Section 4 of House Bill 581.
You are advised, therefore, that the offenses described
by House Bill 58i acreto be handled as criminal matters and pro-
secutlon mag.be instituted in those courts having jurisdiction
of criminal cases punishable by fine only of $50.00 or less. A
prosecution as such may not be instituted in the juvenile court,
but the acts prohibited by House Bill 581 may be the subject of
juvenile court action if the matter Is otherwise properly brought
before such court.
The effectof House Bill 581 is to create a new and
separate offense from the offense defined in Article 802, V.P.C.,
which is the general statute dealing with driving while intoxi-
cated.~ Atty Gen. Op. v-1266 (1951). Since these two statutes
define separate offenses, the penalty prescribed by House Bill
581, while varying from the penalty set out in Article 802, is
not in conflict with it. The penalty provisions of House Bill
581 will control in prosecutions under this law.
Since you have not presented any question as to the con-
stitutionality of any of the provisions of House Bill 581, we ex-
press no oplnion thereon.
SUMMARY
The provisions of Hou.seBill 581, Acts 52na
Leg., 1951, ch. 436, p. 786, make minors fourteen
years of age to seventeen years of age subject to
criminal prosecution for reckless drlvlng, speed-
ing, and driving while intoxicated, as defined
therein. Juvenile courts do not have jurisdiction
of criminal matters, and those actions set out in
House Bill 581 are to be prosecuted in courts hav-
ing jurisdiction of offenses punishable by fine
only of $50.00 or less. There is no conflict be-
tween the penalty provisions of Article 802, V.P.C.,
and those in House Bill 581.
. .
Hon. James W. Miller, page 5 v-1283
Yours very truly,
PRICE DANIEL
Attorney General
By s/Joe S. Moore
Joe S. Moore
Assistant
APPROVED:
Ned McDaniel
State Affairs Division
Everett Hutchinson
Executive Assistant
Price Daniel
Attorney General
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