Case Information
*1 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 por~ersion Eaetknd, Texar 76440 of aa
alcoholic beverqq Dear Mr. Walton: the prorecution
You have asked two quertione concerning of minorr
and have upplfed the following factr: “On October 16, 1973, a 16-year-old male went into a liquor tore and plrchared beer and wine for, and at the requeet of, four other minor’boyr and girls. frgm .I2 to IS year.8 of age. After the purchare
ranging 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 lS.yeare); then, the 16-year-old boy got into hir car and Left and the four left’in theii cri with the ‘beer and w-he, otheiminorr 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 tore wae filed upon and en- tered a ‘guilty’ plea to making alcoholic beverage8 avail- able tb the aid 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 the four minor childron (one girl,
rge 12, one girl, ago 14, and two boya. age 151 can ,p. 1477 *2 . .
The Honorable Emory C. Walton, page 2
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 iI4(a) and (b); Vernon’, Teur Penal Code] which provider: 666-17,
“(14)(a)It hall be unlawful for any perron uuder the age of twenty-ono (2l) year& to purchase any alcoholic . . . . It hrll further be unlawful any beverage, the age Of twenty-one (21) year* porron to porrerr. tier . . . to consume any alcoholic beverage. . . .
“(b) It ball be unlrarful jo pprchaee an alcoholic beverage for or give, knowingly make available, an porron under the ago of twenty- alcoholic bovdrago on0 (24 yoarr. . . .I’
Article 5923b, Vornon’e Toue Civil Strtutee, hae the effect euboti- tuting eighteen years age for the articlc’e reference0 to twenty-one y&Ts ir punirhable by fine only. General Opinion H-82 of ago. Violatfon ( 1973).
At the time of the alleged offenea , criminal prosecutions of young per- ~ewere governed by Actr 1973, 63rd Leg., ch 544. 1484. 52 (formerly Article 30, Vernon’r Texas Penal Code, and now found in substance at $8.07. That etatute providld in pert: Vernon’m Toxaa Penal Code).
. . “(a) A person may 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;
The Honorable ‘Emory C. Walton, page 3
“(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 convicted of any offoneo committed before roaching 17 yeare of age, except:
“(1) perjury, when it ppoare by prooj that he had l ufficiont diecrotion to undoretand the nature and obligation of an oath; “(2) a violation a penal trtute cognizable undor Chapter 302, Acte ?f the 55th Lagielature, Regular, Sorrion, 1957, ae amended (Article BO20, Vornon’e Texae Penal Code); “(3) a violation 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 official derignated by the juvenile court, the or other perron ulho- intake officer. probation officer, rfred by the court hall conduct a preliminary inve#tigetion detormfno whothor:. . . . *4 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 upervieion •#~ lollowe:
“(a) Deliquent conduct ir conduct, other than a traffic Offenro, that violatoe:
“(I) a penal law of thia state punirhable by confinement in jail; or by imprironment “(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. indicating need for upervlsion
“(b) Conduct in: “(I) conduct, othei than a traffic offense, that on three 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:
“(B) the penal ordinencer of any political ubdivielon of thir tate; *5 The Honorable Emory C. Walton. page 5
“(2) conduct which violatee the com- puleory l chool l ttoadance 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 54.05 of thie coda. purrkant to + determination thit the child ongagod in conduct which violater the compuleory l cbool l ttondince lawe or the voluntary of tho child from hie homo rbronco the conoont of tdr parent or guardian rithout l ubatanthl hngtb of time without. . htsnt to rotura.”
. None of there aro applicable to the. factr rot forth in your opinion roqusqt limitrtione nd’dofiuitionr, we do bolipyk and in vlor of thire rktutory A+- that Title 3 of the Family Code io applicable to one-time vio&tionr cle 666~.17(14).. .
Although the detaile of tho etatutor have chinged, the baric atatstQ.ry cheme hae not, and three A,ttornry Ge,aoraL:ppinjonr have diecurled *c among tho;e. ihreo cte, rslationrhtp (now (ArticlC 66647(14), V. T. P. C., V. T. P.A. L), Acte 1973, 63rd Leg., ch. 544, p. 1484, $ 2 (formerly Article 30, V. T. P. C., and now $8.07, V. T..P. C.)~rnd ,Title 3 of the Femi’ly Codo, erp. 5 s St.03 rnd U.04 (formerly Article 2338-1,V.T.C.S.)). Attorney General Opinion WW-1171 (.L961) concluded that Artic~le 666-L?(I4) to the general propopition was “a rpecial exception that children cannqt he convicted a cri&nal offonso. ” The opinion did not codrider the lorrc$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. ofJeneee under Article General Opinioa M-327 (1968)involved 6&6.-I7 .by parroam fifteen yoara of ‘age oldor but younger (IO committed th+b \he ago no rnvly l rtabliohlng adult rorpoarlbility. Tho opiaion coucludod +a! .1481 *6 l-ho Honorable Emory C. Walton. p.gs 6 (H-320) och one-time offendera 4re “not within the jurimdistion of the juvenile
court 4nd mry ba proaecuted.for such violrtion in 413 appropriate crimin41 court b4ving jurladiction of rucb ~ffensc. ” 4nd that in nuch cases the pro- from criminal courtr to the juvenile court vision requiring 4 tr4nafar (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 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 ,ubjsct to criminal prorocu- tion or juvaailo proceodlngm 4nd tht tboro perronr fifteen yearr rge 4rd ubjoct to prorecutlon in t&o 4ppropri4to crimhl court. 4nd 4b6v4
SUMMARY Ono~timo violatorr Article 666-17(14)(a) and (b), V. T, P.~A. L. , which prohibit4 porrcmrion or con- rumptiod of l lc0h01ic bevorager by 4 minor or furnirb-.
ing rlcoholic bovorager to 4 mlndr, 4ro not rubjoct to crimim1 proraeution to juvenile proceedingr if they are under fifteen yearr of 4ge. Tbey are li4ble to if they 4re fifteen yerrr of 4ge crimin41 proaocution or oldor. A ono-time offender of Article 666-17(14)(4) (b) ii not #ubJect to juvenile prbceedingr.
Very truly yours, u CAnoraL of Tour 1482 *7 The Honorable Emory C. Walton. page 7 (H-3201
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee