Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 31, 2017
The Honorable Harold V. Dutton, Jr. Opinion No. KP-0150
Chair, Committee on Juvenile Justice
and Family Issues Re: Whether municipal courts are authorized
Texas House of Representatives to report juvenile conv1ct10ns for drug
Post Office Box 2910 paraphernalia offenses to the Texas Department
Austin, Texas 78768-2910 of Public Safety (RQ-0143-KP)
Dear Representative Dutton:
You ask whether any statutory authority requires municipal courts to report juvenile
convictions for drug paraphernalia offenses to the Texas Department of Public Safety
("Department"). 1 You inform us that municipal courts typically report all convictions to the
Department. Request Letter at 1. When municipal courts attempt to report juvenile drug
paraphernalia convictions, however, you tell us the Department refuses acceptance and returns the
reports with the "notation to change the listing of these convictions to the delinquent conduct
category." Id. You question both the Department's authority to reject the reports and a municipal
court's authority to classify juvenile criminal convictions as delinquent conduct. Id.
We begin with a review of the jurisdiction of municipal courts pertaining to juvenile
criminal conduct. A municipal court may under certain circumstances exercise jurisdiction over
juveniles for penal offenses other than traffic violations, but the jurisdiction extends only to
criminal offenses punishable by fine only. See TEX. Gov'T CODE § 29.003(b) (jurisdiction of
municipal court over criminal .cases arising under State law); TEX. FAM. CODE § 51.08(b)
(circumstances in which municipal court may exercise jurisdiction over juvenile offender).
Municipal courts have no jurisdiction. over juvenile offenders for offenses punishable by
confinement. See TEX. Gov'T CODE § 29.003(b)(2), (c) (excluding offenses punishable by
confinement from municipal court's jurisdiction). Rather, a juvenile's conduct-other than a
traffic offense-that violates a penal law of this State and is punishable by confinement constitutes
"delinquent conduct," and juvenile courts have exclusive jurisdiction over cases involving
delinquent conduct. TEX. FAM. CODE§§ 51.03(a)(l) (defining delinquent conduct), .04(a) (vesting
juvenile courts with exclusive jurisdiction over cases involving juveniles engaged in delinquent
1
Letter from Honorable Harold V. Dutton, Jr., Chair, House Comm. on Juvenile Justice & Family Issues, to
Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 21, 2016), https://www.texasattorneygeneral.gov/opinion/requests-
for-opinion-rqs ("Request Letter").
The Honorable Harold V. Dutton, Jr. - Page 2 (KP-0150)
conduct). With respect to drug paraphernalia charges, municipal courts only have jurisdiction over
juveniles for the offense of possession of drug paraphernalia, which is a Class C misdemeanor
punishable by fine only and does not constitute delinquent conduct. See TEX. HEALTH & SAFETY
CODE § 481.125(a), (d) (defining offense of possession of drug paraphernalia); TEX. PENAL CODE
§ 12.23 (penalty range for Class C misdemeanor convictions). 2
Regarding the reporting requirements for this offense, we are not aware of any statute
requiring a municipal court to report to the Department juvenile convictions for possession of drug
paraphernalia. While Texas law does require courts to report certain drug-related convictions to
the Department, no statute of which we are aware requires municipal courts to report juvenile
convictions for this particular offense. Under the Family Code and Code of Criminal Procedure,
the Department is responsible for maintaining two statewide computerized databases containing
criminal records, the Juvenile Justice Information System (JJIS) and the Computerized Criminal
History System (CCHS). See generally TEX.FAM. CODE§§ 58. l 01-.113 (JJIS); TEX. CODE CRIM.
PROC. arts. 60.01-.21 (CCHS). Courts may have a duty to report to the Department certain drug-
related convictions for the purpose of maintaining these databases. See, e.g., TEX. CODE CRIM.
PROC. art. 60.05 (requiring CCHS to contain disposition of cases by courts for certain offenses);
TEX. FAM. CODE § 58.108 (requiring juvenile courts to report certain data to the Department to
maintain JJIS). State law does not, however, require the Department to collect or retain criminal
records-for either database-related to misdemeanors punishable by fine only. See TEX. FAM.
CODE § 58.104(a) ("[T]he [JJIS] shall consist of information relating to delinquent conduct
committed by a juvenile offender that, if the conduct had been committed by an adult, would
constitute a criminal offense other than an offense punishable by a fine only .... "); TEX. CODE
CRIM. PROC. art. 60.05 (requiring CCHS to contain "information for each arrest for a felony or a
misdemeanor not punishable by fine only"). 3
The Transportation Code may additionally require courts to report to the Department
certain drug-related convictions affecting a person's driver's license. See TEX. TRANSP. CODE
2 Inaddition to the offense of possession, State law also creates an offense for the delivery of drug
paraphernalia that is a Class A misdemeanor or state jail felony, depending on circumstances, and punishable by fine
and/or confinement in jail. See TEX. HEALTH & SAFETY CODE§ 48 I .125(b), (c), (e), (f); see also TEX. PENAL CODE
§§ 12.21, .35. As a municipal court's criminal jurisdiction over cases arising under State law does not extend to
offenses punishable by confinement, we assume your reference to "drug paraphernalia convictions" refers to
convictions for the Class C misdemeanor offense of possession punishable by fine only. See TEX. HEALTH & SAFETY
CODE§ 481.125(a), (d).
3
Consistent with these statutes, the Department's administrative rules pertaining to these databases also do
not require the collection or retention of information related to misdemeanors punishable by fine only. See 37 TEX.
ADMIN. CODE §§ 27.54 (2017) (Tex. Dep't of Pub. Safety, Types oflnfo. Collected in the Juvenile Justice Info. Sys.)
("[T]he [JJIS] shall consist of information relating to delinquent conduct committed by a juvenile offender that, ifthe
conduct had been committed by an adult, would constitute a criminal offense other than an offense punishable by fine
only."),. IOI(c) (Tex. Dep't of Pub. Safety, Comput. Crim. History Sys.) ("Local law enforcement and criminal justice
agencies must report, and the department must retain, the information required by Texas Code of Criminal Procedure,
Chapter 60.").
The Honorable Harold V. Dutton, Jr. - Page 3 (KP-0150)
§§ 521.342, .372(a) (listing convictions resulting in license suspension); see also id § 521.347(b)
(requiring courts to report to the Department convictions for offenses resulting in license
suspension). Municipal courts have no duty, however, to report juvenile convictions for
possession of drug paraphernalia for this purpose, as conviction of this offense does not result in
the suspension or denial of a juvenile's driver's license. See id §§ 521.342, .372(a) (listing
convictions resulting in license suspension). Rather, the Transportation Code contains two
provisions requiring the suspension of a juvenile's license for conviction of certain drug-related
offenses, neither of which requires license suspension for conviction of possession of drug
paraphernalia. 4 See id §§ 521.342, .372(a).
First, section 521.342 provides that the conviction of a person under the age of 21 for
certain drug-related offenses will result in license suspension, but the provision specifically
excludes "misdemeanor[ s] punishable by fine only" from the list of offenses resulting in license
suspension for juveniles. See id § 521.342(a). In addition to this provision, section 521.372(a)
lists three categories of drug-related offenses resulting in license suspension for any person. Id
§ 521.372(a). The first category resulting in license suspension is conviction of an offense under
the federal Controlled Substances Act. Id §§ 521.371(a), .372(a)(l). However, as possession of
drug paraphernalia is not an offense under this federal law, this provision does not apply. See 21
U.S.C. § 863(a) (Controlled Substances Act prohibiting the sale or transportation of drug
paraphernalia but not creating an offense for possession). The second category resulting in license
suspension is conviction of a "drug offense," defined, in relevant part, as possession of a substance
prohibited under the federal Controlled Substances Act. See TEX. TRANSP. CODE§§ 521.372(a)(2),
.371(a) (defining "drug offense" as having the meaning assigned under 23 U.S.C. § 159(c)); 23
U.S.C. § 159(c)(2) (defining "drug offense," in relevant part, as any criminal offense proscribing
the "possession ... [of] any substance the possession of which is prohibited under the Controlled
Substances Act"). Again, as federal law does not prohibit the possession of drug paraphernalia,
this provision is also inapplicable. See 21 U.S.C. § 863(a). Finally, convictions for certain felonies
under the Health and Safety Code will also result in license suspension, but this provision has no
applicability to misdemeanor offenses. See TEX. TRANSP. CODE§ 521.372(a)(3). Possession of
drug paraphernalia, therefore, does not fall within any of the categories requiring license
suspension. 5 .
Accordingly, State law does not require municipal courts to report to the Department
juvenile convictions for possession of drug paraphernalia for the purpose of maintaining the State's
criminal hi.story databases or for license suspension purposes. Beyond these provisions, we are
not aware of any other statutory authority requiring a municipal court to report or the Department
4
Ajuvenile court has additional statutory authority to suspend a juvenile driver's permit or license. See TEX.
FAM. CODE § 54.042(f),
5
lf a juvenile fails to obey an order of a municipal court, the court may hold the child in contempt and order
the Department to suspend the contemnor's driver's license or permit until the contemnor fully complies with the
court's orders. TEX. CODE CRIM. PROC. art. 45.050(c)(2)(B). To effectuate the suspension, however, the court reports
the contempt order-rather than the underlying offense-to the Department. See TEX. TRANSP. CODE § 521.3451
(providing that Department shall suspend license upon receipt of contempt order).
The Honorable Harold V. Dutton, Jr. - Page 4 (KP-0150)
to accept reports of such convictions. 6 Having so concluded, we need not address your remaining
question regarding how municipal courts should report such offenses to the Department.
6
A brief submitted by the Texas Juvenile Justice Department likewise concludes that State law does not
require municipal courts to report juvenile drug paraphernalia convictions to the Department. See Brief from Jill Mata,
Gen. Counsel, Tex. Juvenile Justice Dep't at 3 (Jan. 10, 2017) (on file with the Op. Comm.).
The Honorable Harold V. Dutton, Jr. - Page 5 (KP-0150)
SUMMARY
We are not aware of any statute requiring municipal courts
to report to the Texas Department of Public Safety juvenile
convictions for the misdemeanor offense of possession of drug
paraphernalia.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee