Attorney General Opinion JM-0520

JIM MATTOX Attorney General Supreme Court Suildlng P. 0. Box 12548 Austin, TX. 78711.2548 51214752501 Telex 9101874.1367 Telecopier 512/47502S6 714 Jackson, Suite 700 Dallas, TX. 75202.4508 214~742-8944 4824 Alberta Ave.. Suite 160 El Paso, TX. 79905-2793 915/533-344 .- 1 Texas, Suite 700 .uston, TX. 77002.3111 ;13/2236BS8 806 Broadway. Suite 312 Lubbock, TX. 794013479 SW747-5238 4309 N. Tenth, Suite B McAllen, TX. 7SWl-1685 5121682.4547 200 Main Plaza, Suite 400 San Antonio, TX. 782052797 512/2254191 An Equal Opportunity/ Affirmative Action Employer The Attorney General of Texas .Jul; 11, 1986 Mr. Ron Jackson Executive Director Texas Youth Comiss:ion P. 0. Box 9999 Austin, Texas ?87ti6 Opinion No. JM-520 Re: Whether Acts 1985, 69th Leg., ch. 596, at 4559, impliedly repealed section 51.03(b)(5) of the Family Code, which defines, inhalation of paint fumes or glue as "conduct indicating a need for supervision" Dear Mr. Jackson: The Family Co&c provides for court proceedings in regard to delinquent children. Family Code 9951.01-54.10. The code creates two different categories of conduct over which juvenile courts exercise jurisdiction: "delktquent conduct" and "conduct indicating a need for supervision." Secthn 51.03 of the code defines those terms: (a) Delinquent conduct is conduct, other than a traffic olifense, that violates: (1) a ,penal law of this state punishable by impsisonmmt or by confinement in jail; or (2) a reasonable and lawful order of a juvenile court entered under Section 54.04 or 54.05 of 1:his code, including an order prohibiting conduct r,z:Eerred to in Subsection (b)(4) of this section. (b) Conduct indicating a need for supervision is: -- (1) curtduct, other than a traffic offense or other than an offense included in Subdivision (5) of this subsection, that on three or more occasions violates either of the following: (A) the penal laws of this state of the grade of misdemeanor that are punishable by fine 0113.~; or p. 2387 Mr. Ron Jackson - Page 2 (JM-520) (B) the penal ordinances of any political subdivision of this state; (2) the unexcused voluntary absence of a child on 10 or more days or parts of days within a six- month period or three ol: more days or parts of days within a four-week period from school; (3) the volur,tary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return; '(4) conduct which violates the laws of this state prohibiting driving while intoxicated or under the influenc:e of intoxicating liquor (first or subsequent offense) or driving while under the influence of any narcotic drug or of any other drug to a degree! which renders him incapable of safely driving ,I vehicle (first or subsequent offense); or (5) conduct Frohibited by city ordinance or by state law involv1;g the inhalation of the fumes or vapors of paint and other protective coatings or glue and other ad&Ives. (Emphasis added). Legislation enacted IT. 1985 has created uncertaitity about whether paint and glue sniffing new constitute delinquent conduct or whether such acts still constitute conduct indicating a need for supervision. Acts 1985, 69th Leg., ch. 5!)6, at 4559. That legislation amended two statutes that deal with abrse of paint and glue, articles 4476-13a and 4476-15, V.T.C.S. Article 4476-13a, sectton 3, makes the inhalation of substances containing certain "volatj.le chemicals" a penal offense. See art. 4476-13a. §2 (listing chemicals that are "volatile chemicals" for purposes of article 4476-Ha). Paint or glue may contain a '!volatile chemical." The 1985 legislation made a violation of article 4476-13a, section 3, a Class B misd~!meanor. Previously it had been a Class C misdemeanor. Thus, paint or glue sniffing may now constitute a Class B misdemeanor under article. 13a, section 3. Article 4476-15 dea:ls with abuse of controlled substances generally. The 1985 legislation amended article 4476-15 to add a provision that specif~icall], makes the inhalation of certain paints and glues a Class B misdemeanor. Art. 4476-15, 554.13(j), (k). Previously article 4476-15 had not contained a provision prohibiting inhalation of such substances. In sh2rt. the effect of the 1985 legislation was ? p. 2388 . h Mr. Ron Jackson - Page 3 (JM-520) to wake paint or glue sniifing, which was previously punishable only as a Class C misdemeanor. lpunishable as a Class B misdemeanor under two different penal statutrs. The Family Code speciiically provides that paint or glue sniffing constitutes conduct .indicating a need‘for supervision. Family Code §51.03(b) (51.. It also provides, however, that conduct that violates a state penal law and i,s punishable by imprisonment constitutes delinquent conduct. Family Code 151.03(a)(l). A Class B misdemeanor is punishable by imprisomdent. Penal Code 412.22. A Class C misdemeanor is not. Penal 'Code 512.23. Thus, the effect of the 1985 legislation was to.make paint or glue sniffing, which had previously been punishable by fine only, punishable by imprisonment. Consequently, the literal language of section 51.03 now wakes paint or glue sniffing both delinquent conduct and also conduct indicating a need for supervision. The::efore, you ask whether the 1985 legislation impliedly repealed section 51.03(b)(5), which makes paint or glue sniffing conduct indicatin;3 a need for supervision. Two statutes relating to the same subject will stand unless there is an irreconcilable conflict. Long v. City of Fort Worth, 333 S.W.Zd 644. 646-47 (Tex. Civ. App. - Fort Worth 1960. no writ). We think that in this case the 1985 change in the penal laws created a conflict within section 51.03 of ttie Family Code because we do not think that the categories of "delinquent conduct" and "conduct'indicating a need for supervision" were intended to overlap, but we believe that the provisions can be harmonis,zd. A juvenile court nay comnit a child to the Texas Youth Council for delinquent conduct but not for conduct indicating a need for supervision. Family Code: 554.04. Because different consequences follow from delinquent con'iuct than from conduct indicating a need for supervision, we must conclude that the categories were intended to be mutually exclusive. Therefore, since paint and glue sniffing cannot be both delinquent conduc.: and conduct indicating a need for super- vision, we must determine the current status of paint and glue sniffing under section 51.13 of the Family Code. The goal of statutory construction is to ascertain legislative intent. Kn1gh.t v. InternaLtonal Harvester Credit Co., 627 S.W.2d 382, 384 (Tex. 1982). In 1977 the legislature amended section 51.03 to add subsection (b)(5,x .which specifically designated paint and glue sniffing conduct indicat1r.g a need for supervision. Acts 1977, 65th Leg. t ch. 340, at 906. The 1977 legislation was an explicit determina- tion that paint and glue sniffing should not be treated as seriously as delinquent conduct bu,: that paint and glue sniffing should be treated more seriously than conduct within the category of mis- demeanors punishable by f:.ne only. (Any single incidence of glue or paint.sniffing constitutes conduct indicating a need for supervision, p. 2389 Mr. Ron Jackson - Page 4 :JM-520) whereas three incidences oE conduct in the category of misdemeanors punishable by fine are neczessary to constitute conduct indicating a need for supervision. FaxiVy Code 0051.03(b)(l)(A), 51.03(b)(5).) We think that the legislature's enactment of a bill that dealt specifi- cally with the treatment of.paint and glue sniffing for purposes of section 51.03 indicates that the legislature carefully considered how such conduct should be treated for purposes of the law governing delinquent children. We find nothing in the 1985~legislation discussed above that indicates that the 1985 legislature reconsidered the issue of how paint and glue sniffing slould be treated for purposes of the law governing delinquent children. The 1985 legislation deals exclusively with penal statutes. It makes no reference to delinquency statutes. However, because section 51.03(a)(l) of the Family Code relies on the gradation of Cl-illliIld conduct under penal statutes to define "delinquent conduct," the 1085 legislation had at least the apparent effect of including paint and glue sniffing in the category of "delinquent conduct" for purposes of the law governing delinquent children. We find no indication, however, that the legislature specifically intended that effect or that the legislature even considered the effect that a change in the penal law might have on statutes dealing with delinquent children. Therefore, we do not think that the legislature intended to repeal.section 51.03(b)(5) when it increased the penalty for paint and glue sniffing under the criminal law. Also, implied repeals iare not favored. Standard v. Sadler, 383 S.W.2d 391 (Tex. 1964). A general law does not ordinarily repeal a , ? -, more particular law on the: same subject. Flowers v. Pecos River R. Co.. 156 S.W.2d 260. 263, s:Tex. 1941). Rather, the particular law is -- considered an exception to the general law. Id. We think the rule of Flowers provides help in construing the current.meaning of section 51.03. In defining "delinquent conduct" the legislature relied on the general category of penal offenses.punishable by imprisonment, which only later came to include paint and glue sniffing. In defining "conduct indicating a need for supervision," the legislature spoke specifically to the matte!: of paint and glue sniffing. We do not think that a change in the criminal law that enlarges the conduct included in the general c.ategory of penal offenses punishable by imprisonment should be construed to nullify a provision specifically governing. the treatment of paint and glue sniffing for purposes of juvenile adjudication. In addition, since statutes governing the conduct of juveniles have quasi-penal consequenxs, they should be construed in favor of the individual who is accused of their violation. p. 2390 Mr. Ron Jackson - Page 5 (JM-520) Therefore, we conclud,? that the 1985 change in the treatment of paint and glue sniffing for purpose of criminal law did not impliedly repeal the legislature's sI,eci.fic treatment of the matter of paint and glue sniffing for purposes of juvenile law. Section 51.03(b)(5) should be read as an except,ion to section 51.03(a)(l). SUMMARY Section 51.031:b)(5) of the Family Code has not been impliedly repealed. Section 51.03(b)(5), which provides that paint and glue sniffing constitute coriuct indicating a need for supervision for purposes of court proceedings against delinquent children, is an exception to section 51.03(a)(l), which provides that conduct that violates ,a penal law punishable by imprisonment ir: delinquent conduct against delinquent childl,en. -Jz& JIM MATTOX Attorney General of Texas JACK RIGHTOWER First Assistant Attorney Gmeral MARY KELLER Executive Assistant Attormy General RICK GILPIN Chairman, Opinion Committee: Prepared by Sarah Woelk Assistant Attorney General p. 2391