**~RSCE DA?-==-**  **AUSTIN ia.**  **TEXAB**

**A-- cauc==..L** 
August 30, 1951

Hon. Homer Garrison,Jr., Mrector Tefezzyrtment of Public Safety
Austin,Texas Opinion No. V-1266

Re: Constructionof House Bill Ho. 581, Acts 52nd Lsg., 1951, codified as Article 802d, V.P.C., regulating punishment of minors for Dear Col. Garrison: , driving while intoxicated.

You have requested the opinion of this office
on several questionsrelative to House Bill 581, Acts 2:; L&SC 1951, ch. 436, p. 786, codified as Article

which creates the offense of drivingwhile lnto&&~d’~y minors between the ages of ‘fourteen and seventeenyears. Your questions are as follows:

‘1. If a minor who has reached his fourteenth birthdaybut has not reached his seventeenth birthday is convicted of driving while lnt~xicated,

is his lice&e ‘tooperate ii motor vehicle automaticall suspendedwer the provisions of Section,2X Art. Ann. Clv. Statutes of’Texas? 6687b, Vernon’s

n2. Sec. 3 of IL B. 581, 52nd Texas kegislature,provides that a minor between fourteen and seventeenconvicted of .D.W.I. may be placed on probationby the court. When such a person Is convictedand placed on probation, is the conviction

a final convictionas required by Sec. 24, Art. 6687b, relating to the automatic suspensionof licenses?

n3* Assume that a minor fifteen years of age is convictedof D.W.I. and that be is subsequently convicted of D.W.I. when sixteenyears of age, would the second offense be punished as provided in Section 1, IL B. 581, or would It constitute

a felony? Upon the second conviction could his license to operate a motor vehicle be suspended for one year?Hon. Homer Garrison,Jr., page 2 (V-1266)

“4. Suppose zi

minor was first convicted of D.W.I. just prior to his seventeenthblrthday and was subsequently convicted

of D.W.I. when eighteen years of age, would the second conviction

be punishedas in the case.ofadults convicted the second time?”

We set out initiallythe pertinent provisiom of House Bill 581, which has now been codified as Art%. cle 8026, V.P.C., as follows,eliminating the formal parts thereof:

“Section 1. Any minor who hes reached his or her fourteenth (14th)birthdaybut has not reached his or her seventeenth(17th) birthday and who drives or operates an automobile or any other motor vehicleupon any public road or highway in this State, or upon any street or alley within the limits of an incorporatedcity, town or village,in a reckless manner,,

at an excessive

rate of speed, or while’ under the influence of intoxicating liquors,as hereinafter definedin this Act, shall be guilty of a misdemeanor and upon convictionshall be punished by a fine of not less than One Dollar ($1)nor more than Fifty Pollard ($59).
“Sec. 2. (a) Any minor who drives any vehicle in wlllf~l or wanton disregard of the rights or safety of others or wlthout due caution or circUmspection, and at a speed or in a manner’s0 as to endanger or be likely to endanger a person or property shall be guilty of reckless driving.
“(b) Any minor who operates. a motor vehlcle at a speed In excess of the maximum speed allowableUnder existing law shall be guilty Of speeding.
“(c) Any minor who drives or operatesan automobileor any other vehiclewhile such person is Intoxicatedor under the influenceof intoxicatingliquors shall be guilty of driving
or operatinga motor vehiclewhile under the lnfluence of intoxicating liquors.Hon. Homer Garrison,Jr., page.3 (V-1266)

rc 1 'Sec. 3. Provided that for g00d cause shown, and when It shall appear,tothe SatISfaction of the court that the ends of justice and the best interest of the public as well
as the defendantwill be subservedthereby, the courts of the State of Texas having orlginal jurisdictionof such criminalactions shall have the power after convictionor plea of guilty to suspend the impositionof such fine and may place the defendanton probation for a period of ninety (90) days.
"Any such minor placed on probation shall be under the supervisionof such court.

%ec. 4. Hothing containedin this Act shall be construed to repeal or affect any other Statutes regulating the powers and duties of Juvenile Courts: the provlslonsof this Act shall be cumulative with all other Acts on this subject."

We turn now to.your questionsand will dispose of them In the order asked.

1. If a minor who has reached his fourteenth birthdaybut has not reached his seventeenth birthday Is convictedof drivingwhile lntoxicated.~ls his license to operatea motor vehicle automatically suspended

under the rovislonsof Section 24. Art. 66o'i'b, Vernon'sAnn. (Xv. tat&es of Texas?

The. provision in the drivers ’ license statute providing for automatic suspensionof licenses, being Section 24 of Article 66873, V.C.S., reads-as follows:

"(a) The license of any person shall be automaticallysuspendedupon final convlctlon of any of the following offenses:
*

. . . "2. Driving a motor vehiclewhile under the Influence of Intoxicating liquor

. . ."

It is pertinent to observe at this point that House Bill 581, which Is now Article 802d, V.P.C., creates an entirelynew offense. Prior to Its passage,maleHon. Homer Garrison,Jr., page 4 (V-1266)

juveniles under seventeenyears of age and female juveniles under eighteenyears of age were not subject to punishmentfor crimes but were subject only to the provisions of Article 2338-1, V.C.S.,which established juvenilecourts and provides the procedurefor trials for juveniledelinquency. Section 12 of that statute specifically

provides that:

"If during the pendency of a criminal charge or Indictment against any person In any other court than a Juvenile Court, it shall be ascertainedthat said person is a female over the age of ten (10) years and under the age of eighteen (1.8) years, or is
a male person over the age of ten (10) years and under the age of seventeen (17) years at the time of the trial for the alleged offense, it shall be the duty of such court to transfer such case Immediately together with all papers, documentsand testimony connectedtherewithto the Juvenile Court of said~aounty."

The offenses createdby House Bill 581 are a departurefrom the general policy for handling juvenile offendersand constituteexceptionsto the foregoing la

g - ge l As to the'

offensesthus created, Article 2338-1. V.C.S., will not apply.

Turting back to the drivers' license law, we note that the automaticsuspension provided for In Section 24 of Article 6687b is for conviction of "driving
a 'motor

vehicle while under the influenceof lntoxlcatlng liquor." That Is almost the precise gravamen of th offense createdby House Bill 581 relative speclflcally to drivingwhile intoxicated, except that the gravamen is Inclusiveof factual allegationsof minority. We do not think that the particular offense of drivingwhile intoxicated

by a minor, which Is one of the offenses cr ated by House Bill 581, Is distinguishable, because of the minority of the defendant,from the offense descrlb in Section 24 of Article 6687b as *drivinga motor vep cle while under the Influence of intoxicating liquor. section of the drivers' license law does not purport to fer specifically

to any particularsection of the Penal Code other than to describe very generallythe characte of the offenses for which automatic suspension will be consequence.Hon. Homer Garrison,Jr., page 5 (V-1266)

We thereforehold in answer to your first question that a minor who holds a license issued wader Artlcle 6687b, who, being within the age bracket of fourteen to seventeen

years, 1s convicted of drivingwhile lntoxlcated as providedby House Bill 581, being Article 8026, V.P.C., shall for the first convictionsuffer an automatic suspensionof such license for the period and within the provisionsof Section 24 of Article 6687b.

2. Sec. 3 of PI.

B. 581..

52nd Texas Legislature, provides that a minor between fourteen and seventeenConvicted of D.W.I. may be placed on probationby the court. When such person is convictedand DlaCed on Drobation. 1s the conviction

a final convictionas reaulredby Sec. 24, Art. 6687b, relating to the automatic suspensionof lltenses?
Section 3 of House Bill 581, to which you refer in your second question, Is set forth above.

This office has previouslyruled ln Opinion V-1157 (1951) that the suspension of a sentence In connection with a convictiondoes not affect the automatic suspensionof a driver ’s license if the offense 1s one of the enumeratedoffenses set out in Section 24 of Article 6687b. Slmllarly,this office has held ln OpinionV-408 (1947) that placing a convictedadult defendant on probatlon under the Adult Probationand Parole Law,~belng Artl- .cle 781b, V.C.C.P., does not permit the convictingcourt to includewithin the comprehension of the probationa remission of the automatic suspension of the driver's license of the defendant,

when the offense is one of the enumerated offenses set out in Section 24 of Article 6687b.

In so far as the effect of the suspensionof sentence or placing the defendant on probation is concerned,we see no reason for distinguishing between an adult and a minor with regard to'the consequenceof such action on the automatic suspension of a minor's driver's license. We hold that the action of a convictingcourt in placing a minor on probation under Section 3 of House Bill 581 does.not alter or affect the suspensionof the driver'slicense as an automatic consequenceof the conviction for one of the offenses set out ln Section 24 of Article 6687b.

3. Assume that a minor fifteen years of age Is convictedof D.W.I. and that he is subsequentlyconvicted of D.W.I. when sixteen years of age. WOUld theHon. Homer Garrison,Jr., page 6 (V-1266)

Your reference to whether the second offense of drivingwhile Intoxicated by a minor might be a felOny requires referenae to Article 802b, V.P.C., which prescribesthe penalty for the second or a subsequent offense bf drivingwhile intoxicated. That statute defines a separate offense from the offense of driving while intoxicated

by a minor. Under Article 2338-1, V.C.S., and prior to the passaeg of House Bill 581, a minor may not be punished for crime, which, of course, includes the felony offense of a second or subsequent convictionfor drivingwhile intoxicated, as set out In Article 802b, V.P.C. House Bill 581 establishesthe misdemeanor offense of driving while Intoxicated by a minor
as one exceptionto the provisions of Article 2338-l. The felony offense of a second or subsequentconviction for drivingwhile Lntoxlcated 1s not includedas an exception to Article 2338-1, and that statutew0ul.dpreclude punishinga mlnor for the second convictionof poFbmv ;hl$ Intoxicated as a felony under Article 2
. . . However,a person might be convictedseveral times for repetitionsof the misdemeanoroffense of drlvlng while lntoxlcqted, as definedby House Bill 581, while still a minor. Upon ,the second conviction

under this statute for drivingwhile intoxicated, the driver’s license of the minor so convicted would be suspendedfor
a yeai?,

under Section 24 of Article 66873, regardlessof the fact that both convictions were misdemeanors. Tatum
v. Texas Department of Public Safety, 241 S-W.26 16m~ Civ. App. 1951, error ref.).

4. Suppose a n&r was first convicted of D.W.I. just prior to his seventeenth birthdayand was subsequently

convictedof D.W.I. when elateen years of aRe. would the second conviction be punishedas In the
case of adults convictedthe second tFme?

This questionrequires a construction of Article 802b, V.P.C.,which reads:

"Any person who has been convictedof the misdemeanoroffense of drlv3.n~ or operatiw an automobileor other motor vehicleHon. Homer Garrison,Jr., Page 7 (V-1266)

upon any Dublic road or hinhway ln this State
or upon any street or alley within an lncor; porated city. town or villane,while lntoxicated or und the lnfl uence of intoxicating cr, and %o shall thereafter drive or operate an automobileor other motor vehlcle~ upon any public road or highway In this State or upon any street or alley within the limits of an incorporatedcity, town or village,while such person la intaxicated or under the Influence of lntoxicatlng liquor, shall be guilty of a felony and upon convictionbe punished by confinement

Tbls penal law creates a separateoffense; it is not a matter of enhancementof the penalty.
v. State, 200 S.W-28 824 (Tex. Crlm. 1947). Haynes

There is, of course, a fundamental rule of statutoryconsttictlon that penal laws are strictly construed. V.P.C., This being true, we must construeArticle 802b,

strictly in determining whether its reference to any person who has been previously convictedof "the:mlsdemeanor offense of driving

. . . while Intoxicated .'. .M may be construedto include a conviction for the newly created offense of driving while intoxicated by a minor as createdby House Bill 581.

CAn examinationof the history of the statutes relating to drlvlngwhile IntoxicatedIs enlightening and we think Is @-value in determiningthe answer to this question. .,/I

As first passed in 1923, Article 802 of the Penal Code provided that the offense of drivingwhile Intoxicated

was a felony, and thus it remained through subsequentlegislative amendmentsuntil 1941, when the 47th Legislature

passed an Act changingthe first offense to a misdemeanorand adding Article 802b and Article 802~ of the Penal Code, creating two new offenses. That 1941 Act, which was Acts 47th Leg.,.1941;ch. 507, p. 819,
was comprehensive

of the drunken driving offensesat that time. By turning to that Act and observLngIt In the light of the history of the offense of CtrlvFng while intoxicated,It will bs seen that when Section 2 of that Act -- which originallyenacted Artiale 802b of the PenalEon. Homer Garrison,Jr., page 8 (V-1266)

Code -A referred to ‘the mi_ademeanor offenseof

. . . drZvlngwhile Intoxicated,” It olearlyreferred to the misdemeanoroffensewhich was simultaneously created by Section 1 of the same Act, because before the passage of that Act the first or a subsequentoffense of drivingwhile intoxicated had consistently

been a felany
. We conclude that the referenceremainsunchanged.

We thereforehold that the conviction of a minor for the offense of drlvlngwhile intoxicated ln violation of House Bill 581, codifiedas Article 802d, V.P.C., may not be used as a prior convlatlon to form the basis of a convlctlonfor violating Article 802b, V.P.C., for a second or subsequentconviction for driving while intoxicated.

We are, of course not passing on the constltutionalltyof house Bill 561, that questionnot having been asked.

SUMMARY

Convlctlonof a minor for drivingwhile IntoxicatedIn violation of Article 802d, V.P.C., automatically suspendsany license to operatea motor vehicle’ which such minor may have, under Section 24 of Article 6687b, V.C.S.

When a minor Is convictedof driving while IntoxicatedIn violation of Article 8026, V.P.C., and placed on probation,the probationdoes not affect the automaticsuspension of the license to operate a motor vehicle of such minor.

A minor convicteda second or subsequent time for drivingwhile intoxicated in violation of Article 802d, V.P.C.,may only be convictedof a misdemeanor, but upon the second convictionthe minor’s license to operate a motor vehicle Is automaticallysuspended for a year, under Section 24 of Artlcle 6687b,V.C.S.
Conviction of a minor for drivingwhile intoxicatedin violation of Article 8026, V.P.C., may not be used as the basis for convicting such person of the fel.ony Offense ofHon. Homer Garrison,Jr., page 9 (V-1266)

drlvlngwhile intoxicated upon a Second or subsequentconviction,in violation of Article 802b, V.P.C.

APPROVED:

Hea WcDanlel State Affairs Division

Everett Hutchlnson ExecutiveAssistant

Price Daniel Attorney General

DJC:jmc Yours very truly,

PRICE DANIEL Attorney General