Attorney General Opinion JM-0380

JIM MATTOX Attorney General Suprem Court Suildlng P. 0. Box 12548 Austln. TX. 7071% 2546 512l47525Ql T&x gl(yB7C1367 T&cq&r 512/475&?3S 714 Jackson. Suite 700 oeIlee,Tx. 7!52024ce 214x2%844 4324 Alberta Avs.. Suite 160 ElPseo.lx. 7woM793 WW3344W 1Wl Texas, Sutt~ 7W Noueton. TX. 77002-3111 713n23eSm 606 8msdway. Suite 312 Lubbock.Tx m1-3479 303iT476238 4308 N. Tenth, Sutta S McAtlenn. TX 76501-1665 612mS2e47 2mMslnflsa%sulte4w fan Antonlo, TX. 762052797 612/2264181 An Eauel OPportUnitY~ The Attorney General of Texas November 14. 1985 Mr. W. S. McBeath Abirdstrator Texas Alcoholic commissioa P. 0. Box 13127 Austin, Texas Bererage 787ll Opinion No. ~~-380 Ret I&ether a justice of the peace or nnmiclpal court has jurisdiction to try a misdemeanor offense under chapter 106 of the Texas Alcoholic Beverage Code file against a 15- or 16-year-old defendant who has no prior record Dear Mr. McBxath: You bave reqmeted our opinion regarding the following question: Does a justice of the peace or"&lcipal court l-me jurj.sdiction to try a misdemeanor offense under any provision of chapter 106 of the Texas Alcoholic:. Bev&age Code filed against a fifteen or sirteewp~r-old defendant who has no prior record of any ol.oletioas of law? As a pr&.mI&y matter, the criminal jurisdiction of a municipal tiourt cad a juet:kr of the peace court is limited to misdemeanor offeases punisbeble by fine only; See Tex. Coast. art.. V. IBl. 19; see also V.T.C.S. srt. 1195; Code CrKProc. arts. 4.11, 4.14. These two courts ,%ave cmncurrent jurisdiction over Class C misdemeanors. See Penal Code CU.23 (individuals adjudged guilty of a Class C ~dsmsauor shall be punished by a fine not to exceed $200). Consequently, a justice of the peace court and a municipal court would have jurisdiction over misdem&n or offenses found -in chapter 106 of the Alcoholic Beverage Code which are punishable by fine only. Thus, the two courts woultd not have jurisdiction of section 106.08 of the code because the maximum punishment upon conviction may include confinement in the ~county jail. See Alto. Bev. Code 01.05. - This office ha:6 concluded on several occasions that minors may be prosecuted in cr!minal court for possible violations of offenses prohibiting the possession and consumption 'of alcoholic beverages. Attorney General Cpinions E-320 (1974); M-327 (1968); WW-1171 (1961). Attorney General Op,inion WW-1171 concluded that certain laws involving p. 1737 Mr. W. S. HcBeath - Page 2 (3'14-380) alcoholic beverages prwidml an exception to the statutory provision against prosecuting minors in criminal court. Since the issuance of these opinions, the legislature has recodified those penal lms involving alcoholic beverages into the Alcoholic Beverage Code. See Alto. Bev. Code 50106.01 et seq. Chapter 106 of the AlcchoE Beverage Code contains provisions relating to age, including: several misdemeanor provisions involving conduct by a minor. ALo. Bev. Code $$106.02-106.07. The code presently defines "minor" as a person under 19 years of age. Id. 5106.01; but see Acts 1985, 69th Leg., ch. 285, 011, at 2390; AZ 1985. 69th Leg., ch. 462, $9. at 3129, 3141. The Penal Code prwidcs that "[ulnless the juvenile court waives jurisdiction and certifies the individual for criminal prosec+ioa. a person may not be prosecuted for or convicted of any offense. . . . ." See Penal Code 58.07(b). The three express statutory exceptions to Es waiver provision are perjury, aggravated perjury and state traffic offenaes excluding driving while intoxicated and driving under the influence of drugs. See: Penal Code 58.07(b). --. Jurisdiction of the jmenile court $s defined by Title III of the Family Co&. Family Code OSl.Ori(a).~ Section 51.04(a) of the Family Cc&provides: This title mmrs the ~proceedings in all cases iuvolving the delimpient conduct or conduct indicating a neelrfor eupem%eion engaged in by a person who was a~child~within the meanUg of this title at.the time'hegaged in the conduct, and the juvenile court has exclusive original juris- diction Over I G:oceedin 8 under this title. o?mpbasis added),: The Family Code defines "child" as a petson "ten years of age or older and under 17 years of age.'" See Family Code 551.02(1)(A). "Delin- quent conduct" is not rtpplicable to misdemeanor offenses. See Attorney General Opinion.' E-487 (1975); see also Family Code C54.02(a)(l). However. "(louduct Indicating .A Need for Supervision" has been defined by the legislature to include "three or more" offenses that are a violation of a penal ordinance of a "political eubdlvision of this state." See Family Code 051.03(b)(l)(B) (this. provision excludes traffic offenses). Consequently, Attorney General Opinion JM-316 (1985) concluded that a municipal court does not have jurisdiction Over a Class C misdemeanor offense involving a fifteen or sixteen-year-old defendant who has fever than three prior Class C misdemeanor convictions. p. 1738 Mr. W. S. McBeatb - Page 3 (JM-380) ‘I The Attorney Gener,LL, in 3!4-316. reasoned that .section 51.08 of the Family Code re.quirmh that the mmicipal court transfer these cases to the juvenile court :Eor disposition. We believe that Attorney General Opinion .lM-316 (1985) is consistent with one of the general purposes of Title III ,3:E the Family Code "to remove from children committing unlawful acts .the taint of criminality and the consequences of criwinal behavior and to substitute a program of treatment. training and rehabilitati~on." See Family Code S51.01(3); see also 31 Tsx. hr. 3d Delinquent;ChildK 56. The proceeding in juvenile court is civil in naturtVr and fewer than three Class C misdemeanors are not considered crimlual prosecutions. See Steed v. State, 183 S.W.2d 458 (Tex. 1944); see also Family Code 051.13(a); Attorney General Opinion .I+316 (1985). Attorney General Oplr~iou JM-316 did not discuss the ap$licatioa of the Alcoholic Beverage Code when violated by minors. Although the legislature intended that a minor child's unlawful acts be prosecuted within the juvenile courts as a general rule, it has provided a specific statutory procedure exclusively for minors to be followed in criminal prosecution of minors under chapter 106 of the Alcoholic Beverage Code. The 1egiaLature has provided that when a child under the age of 19 is prosecuted in c-1 court, mnicipal or jusfice court, for violation of an offense in the Alcoholic Beverage Code, the court having jurisdiction Over the offense is required to adopt a. apecialiaed procedure. Mco. Bev. Code $§106.10-.12; see also R. Da-. Texas Juveuile Law 37 (1984) (general discussion on specialized procedure for-zors in the Alcoholic Beverage Code). A&ordingly. -Attorney General Opinion JM-316 (1985) is not applicable to the prosecution of minors, fifteen or sixteen-year-olds, who have violated eny provision pf chapter 106 of the Alcoholic Beverage Code. See Attorney General OpkLons H-320 (1974); K-327 (1968); WW-1171 m61). The specialized procedure requires that the minor may not plead guilty except in ape* cm.rt, Alcoholic Beverage Code L106.10, the minor may not be convicted generally unless his parent or guardian is present in court., Alcoholic: Beverage Code 5106.11(a). and the minor convicted of nof more than one violation may apply to the conrt, on attaining the.age of 19, to have the'conviction expunged from his record. Alcoholic Beverage! Code 0106.12(a). The legislature has provided a similar procedt.re to be followed by a criminal court, municipal court or justice :ourt, when a minor has violated a traffic offense. See V.T.C.S. art:, 67011-4, Ola, 12. Moreover, traffic offenses areexempted from ‘the exclusive jurisdiction of the juvenile court. Therefore to conclucle that a municipal court has jurisdiction to try an offense under the Alcoholic Beverage Code, which is punishable by a fine only, does not create a conflict with Attorney General Opinion JM-316 (1985.). p. 1739 1 Mr. W. S. McBeath - Page 4 (JM-380) SUMMARY A justice of the peace court or a municipal court has jurisdiction to try a misdemeanor offense of the Texas Alcoholic Beverage Code which is punishable by fine only filed against a 15- or 16-year-old defendant who has no prior record of any violation of law. JIM MATTOX ., Attorney General of Tetis MUTKEILgR l?.recutive Assistant Attorney General BOBBBT GUT Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Tony Guillory end SuaanL. Gsrrison Assistant Attorneys General APPROVED: opmICNcGMMITlxE Rich Gilpin, Chairman. Colin Carl SuaanGarrison Tony Guillory Jim Moellinger Jennifer Riggs Nancy Sutton Sarah Woelk 0 p.2740