~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: Construction of 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 questions relative to House Bill 581, Acts 

2:; L&SC 1951, ch. 436, p. 786, codified as Article 

which creates the offense of driving while 

lnto&&~d’~y minors between the ages of ‘fourteen and 

seventeen years. Your questions are as follows: 

‘1. If a minor who has reached his fourteenth birthday but has not reached his seventeenth birthday is convicted of driving while 

lnt~xicated, is his lice&e ‘to operate ii motor 

vehicle automaticall suspended wer 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 seventeen convicted of .D.W.I. may be 

placed on probation by the court. When such a 

person Is convicted and placed on probation, 

is the conviction a final conviction as required 

by Sec. 24, Art. 6687b, relating to the automatic suspension of licenses? 

n3* Assume that a minor fifteen years of 

age is convicted of D.W.I. and that be is subsequently convicted of D.W.I. when sixteen years 

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 seventeenth blrthday and was subsequently convicted of D.W.I. 

when eighteen years of age, would the second 

conviction be punished as in the case.of adults 

convicted the second time?” 

We set out initially the 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) birthday but 

has not reached his or her seventeenth (17th) 

birthday and who drives or operates an automobile or any other motor vehicle upon any 

public road or highway in this State, or upon 

any street or alley within the limits of an 

incorporated city, town or village, in a 

reckless manner,, at an excessive rate of 

speed, or while’under the influence of intoxicating liquors, as hereinafter defined in 

this Act, shall be guilty of a misdemeanor 

and upon conviction shall 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 

allowable Under existing law shall be guilty Of 

speeding. 

“(c) Any minor who drives or operates an 

automobile or any other vehicle while such person is Intoxicated or under the influence of 

intoxicating liquors shall be guilty of driving 

or operating a motor vehicle while 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,to the SatISfaction of the court that the ends of justice 

and the best interest of the public as well 

as the defendant will be subserved thereby, 

the courts of the State of Texas having orlginal jurisdiction of such criminal actions 

shall have the power after conviction or plea 

of guilty to suspend the imposition of such 

fine and may place the defendant on probation 

for a period of ninety (90) days. 

"Any such minor placed on probation shall 

be under the supervision of such court. 

%ec. 4. Hothing contained in this Act 

shall be construed to repeal or affect any 

other Statutes regulating the powers and 

duties of Juvenile Courts: the provlslons of 

this Act shall be cumulative with all other 

Acts on this subject." 

We turn now to.your questions and will dispose 

of them In the order asked. 

1. If a minor who has reached his fourteenth 

birthday but has not reached his seventeenth birthday Is 

convicted of driving while lntoxicated.~ls his license to 

operate a motor vehicle automatically suspended under the 

rovislons of Section 24. Art. 66o'i'b, Vernon's Ann. (Xv. 

tat&es of Texas? 

The. provision in the drivers’ license statute 

providing for automatic suspension of licenses, being Section 24 of Article 66873, V.C.S., reads-as follows: 

"(a) The license of any person shall 

be automatically suspended upon final convlctlon of any of the following offenses: 

* . . . 

"2. Driving a motor vehicle while 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 entirely new offense. Prior to Its passage, male 
Hon. Homer Garrison, Jr., page 4 (V-1266) 

juveniles under seventeen years of age and female juveniles under eighteen years of age were not subject to 

punishment for crimes but were subject only to the provisions of Article 2338-1, V.C.S., which established 

juvenile courts and provides the procedure for trials 

for juvenile delinquency. 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 ascertained that 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, documents and testimony 

connected therewith to the Juvenile Court 

of said~aounty." 

The offenses created by House Bill 581 are a 

departure from the general policy for handling juvenile 

offenders and constitute exceptions to the foregoing la 

g-ge l As to the' offenses thus created, Article 2338-1. 

V.C.S., will not apply. 

Turting back to the drivers' license law, we 

note that the automatic suspension provided for In Section 24 of Article 6687b is for conviction of "driving 

a 'motor vehicle while under the influence of lntoxlcatlng liquor." That Is almost the precise gravamen of th 

offense created by House Bill 581 relative speclflcally 

to driving while intoxicated, except that the gravamen 

is Inclusive of factual allegations of minority. We do 

not think that the particular offense of driving while 

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 *driving a motor vep 

cle while under the Influence of intoxicating liquor. 

section of the drivers' license law does not purport to 

fer specifically to any particular section of the Penal 

Code other than to describe very generally the characte 

of the offenses for which automatic suspension will be 

consequence. 
Hon. Homer Garrison, Jr., page 5 (V-1266) 

We therefore hold 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 driving while lntoxlcated as provided by House Bill 581, being Article 8026, 

V.P.C., shall for the first conviction suffer an automatic 

suspension of such license for the period and within the 

provisions of Section 24 of Article 6687b. 

2. Sec. 3 of PI. B. 581.. 52nd Texas Legislature, 

provides that a minor between fourteen and seventeen Convicted of D.W.I. may be placed on probation by the court. 

When such person is convicted and DlaCed on Drobation. 1s 

the conviction a final conviction as reaulred by Sec. 24, 

Art. 6687b, relating to the automatic suspension of lltenses? 

Section 3 of House Bill 581, to which you refer 

in your second question, Is set forth above. 

This office has previously ruled ln Opinion 

V-1157 (1951) that the suspension of a sentence In connection with a conviction does not affect the automatic 

suspension of a driver’s license if the offense 1s one of 

the enumerated offenses set out in Section 24 of Article 

6687b. Slmllarly, this office has held ln Opinion V-408 

(1947) that placing a convicted adult defendant on probatlon under the Adult Probation and Parole Law,~belng Artl- 

.cle 781b, V.C.C.P., does not permit the convicting court 

to include within the comprehension of the probation a 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 suspension of 

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 consequence of such 

action on the automatic suspension of a minor's driver's 

license. We hold that the action of a convicting court 

in placing a minor on probation under Section 3 of House 

Bill 581 does.not alter or affect the suspension of the 

driver's license as an automatic consequence of 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 convicted of D.W.I. and that he is subsequently convicted of D.W.I. when sixteen years of age. WOUld the 
Hon. Homer Garrison, Jr., page 6 (V-1266) 

Your reference to whether the second offense 

of driving while Intoxicated by a minor might be a felOny requires referenae to Article 802b, V.P.C., which 

prescribes the penalty for the second or a subsequent 

offense bf driving while 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 

conviction for driving while intoxicated, as set out In 

Article 802b, V.P.C. House Bill 581 establishes the misdemeanor offense of driving while Intoxicated by a minor 

as one exception to the provisions of Article 2338-l. 

The felony offense of a second or subsequent conviction 

for driving while Lntoxlcated 1s not included as an exception to Article 2338-1, and that statute w0ul.d preclude punishing a mlnor for the second conviction of 

poFbmv ;hl$ Intoxicated as a felony under Article 

2 . . . 

However, a person might be convicted several 

times for repetitions of the misdemeanor offense of drlvlng while lntoxlcqted, as defined by House Bill 581, 

while still a minor. Upon ,the second conviction under 

this statute for driving while intoxicated, the driver’s 

license of the minor so convicted would be suspended for 

a yeai?, under Section 24 of Article 66873, regardless of 

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 birthday and was 

subsequently convicted of D.W.I. when elateen years of 

aRe. would the second conviction be punished as In the 

case of adults convicted the second tFme? 

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

"Any person who has been convicted of 

the misdemeanor offense of drlv3.n~ or operatiw an automobile or other motor vehicle 
Hon. 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 automobile or other motor vehlcle~ 

upon any public road or highway In this 

State or upon any street or alley within 

the limits of an incorporated city, town 

or village, while such person la intaxicated or under the Influence of lntoxicatlng liquor, shall be guilty of a felony and 

upon conviction be punished by confinement 

Tbls penal law creates a separate offense; it 

is not a matter of enhancement of the penalty. 

v. State, 200 S.W-28 824 (Tex. Crlm. 1947). 

Haynes 

There is, of course, a fundamental rule of 

statutory consttictlon that penal laws are strictly construed. 

V.P.C., 

This being true, we must construe Article 802b, 

strictly in determining whether its reference to 

any person who has been previously convicted of "the:mlsdemeanor offense of driving . . . while Intoxicated .'. .M 

may be construed to include a conviction for the newly created offense of driving while intoxicated by a minor as 

created by House Bill 581. 

CAn examination of the history of the statutes 

relating to drlvlng while Intoxicated Is enlightening 

and we think Is @-value in determining the answer to 

this question. .,/I 

As first passed in 1923, Article 802 of the 

Penal Code provided that the offense of driving while 

Intoxicated was a felony, and thus it remained through 

subsequent legislative amendments until 1941, when the 

47th Legislature passed an Act changing the first offense 

to a misdemeanor and 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 offenses at that 

time. By turning to that Act and observLng It 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 originally enacted Artiale 802b of the Penal 
Eon. Homer Garrison, Jr., page 8 (V-1266) 

Code -A referred to ‘the mi_ademeanor offense of . . . 

drZvlng while Intoxicated,” It olearly referred to the 

misdemeanor offense which was simultaneously created 

by Section 1 of the same Act, because before the passage of that Act the first or a subsequent offense of 

driving while intoxicated had consistently been a felany . We conclude that the reference remains unchanged. 

We therefore hold that the conviction of a 

minor for the offense of drlvlng while intoxicated ln 

violation of House Bill 581, codified as Article 802d, 

V.P.C., may not be used as a prior convlatlon to form 

the basis of a convlctlon for violating Article 802b, 

V.P.C., for a second or subsequent conviction for driving while intoxicated. 

We are, of course not passing on the constltutionallty of house Bill 561, that question not having 

been asked. 

SUMMARY 

Convlctlon of a minor for driving while 

Intoxicated In violation of Article 802d, 

V.P.C., automatically suspends any license 

to operate a motor vehicle’ which such minor 

may have, under Section 24 of Article 6687b, 

V.C.S. 

When a minor Is convicted of driving 

while Intoxicated In violation of Article 

8026, V.P.C., and placed on probation, the 

probation does not affect the automatic suspension of the license to operate a motor 

vehicle of such minor. 

A minor convicted a second or subsequent time for driving while intoxicated 

in violation of Article 802d, V.P.C., may 

only be convicted of a misdemeanor, but upon 

the second conviction the minor’s license to 

operate a motor vehicle Is automatically suspended for a year, under Section 24 of Artlcle 6687b, V.C.S. 

Conviction of a minor for driving while 

intoxicated in violation of Article 8026, 

V.P.C., may not be used as the basis for convicting such person of the fel.ony Offense of 
Hon. Homer Garrison, Jr., page 9 (V-1266) 

drlvlng while intoxicated upon a Second or 

subsequent conviction, in violation of Article 802b, V.P.C. 

APPROVED: 

Hea WcDanlel 

State Affairs Division 

Everett Hutchlnson 

Executive Assistant 

Price Daniel 

Attorney General 

DJC:jmc 

Yours very truly, 

PRICE DANIEL 

Attorney General