Hon. 0. N. Humphreys, Jr.,

Administrator Texas Liquor Control Board Sam Houston State Office Bldg. , Austin, Texas 78711 Opinion No. M-327
Re: May ajuvenile be prosecuted for violation of Article 666-17(14), Vernon’s Penal Code, and related Dear Mr. H&nphreys: questions?

: . You request an opinion of this office whether ajuvenile may be prosecuted for violation of Article 666-17(14), Vernon’s Penal Code and if so, whether such juvenile may be incarcerated for failure to pay his fine upon conviction, inview of amendments to Article 2338-1, Vernon’s Civil Statutes, by H.B. No. 780. Acts 60th Legislature, R.S. 1967, ch. 475, p. 1083.

Article 666-17. Section 14(a) makes certain purchases, possession or cofisumption of alcoholic beverages by persons pnder 21years of age a misdemeanor criminal offense and provides punishment by fine froni $10. to $100.

As stated in your letter, this office has previously held in Att.orney Genera1 Opinion No. WW-1171 (1961) that the above section of rhe Texas Liquor Cont:rol Act is an exception to Sections 12and 13of Article 2338-1, and that such persons under 21years of age are susceptible to fines for violation thereof.

As further stated inyour letter, Attorney General Opinion No. WW-1338 (1962) holds that all persons~convicted under said Section 14(a) who are unable to pay the fine assessed must be confined injail to lay out the fine as required by law or until such fine has been paid, provided they are segregated from adult offenders.

Section 3of Article 233811. as amended, defines a “child” as any female person over the age of 10years and under the age



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of 18years and any male person over the age of 10years and under the age of 17years.

Section 1of Article 30, Vernon’s Penal Code, prohibits the conviction of a persons for any offense, except perjury, committed before he was 15years of age, therefore such “children” can be held responsible only through proceedings in thejuvenile court, if at all. Attorney General Opinion’No. M-163 (1967).

Under Section 5(a) of Article 2338-1, thejuvenile court has exclusive original jurisdiction inproceedings governing any “delinquent child, I’but thejuvenile court may waive jurisdiction to the appropriate district court or criminal district court as specified in Section 6thereof.

Ifa “child” does not violate a felony penal law or a misdemeanor law punishable by confinement injail, he is not a “delinquent child” under the terms of Section 3of Article 2338-l unless he habitually violates misdemeanor laws punishable by fine only, or penal ordinances, or other proscribed deportment, conduct or activity.
Inview of the above, ajuvenile court. would not have jurisdiction of.achild for the “one-time” purchase, possession or consumption of an alcoholic beverage as described in Section 14(a) because such aperson is not defined as a “delinquent child. ” Obviously then, ajuvenile court could not waive jurisdiction that it does.not have, nor could it assume jurisdiction ofa case transferr,ed to it, under such circumstances, as provided inSection 12 of Article 2338-l.

Itis our opinion that a female person 15years of age or over, but under the age of 18years, or a male person 15years of age or over, but under the age of 17years, who violates the provisions of Section 14(a) of Article 666-17, other than habitually, is not within the jurisdiction of the juvenile court and may be prosecuted for such violation in an appropriate criminal court having jurisdiction of such offense. Upon conviction thereof he, or she, may be incarcerated until such fine is paid or otherwise satisfied according to law; however, such person shall be,segregated from adult offenders under the provisions of Article 2338-l(17).


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Whether such a person is a “one-time” offender or is an habitual offender such as would place him or her under thejurisdiction of thejuvenile court is a question of fact which could be ascertained by the arresting officer, and/or the court after consultation or conference with thejudge ofthe juvenile court.
SUMMARY
A female person 15years of age or over, but under 18years of age, or a male person 15years of age or over, but under the age of 17years. who violates the provisions of Section 14(a) of Article 666-17, Vernon’s Penal Code, other than habitually. may be prosecuted for such violation and upon conviction thereof he, or she, may be incarcerated until such fine is paid or otherwise satisfied according to law; however, such confined person shall be segregated from adult offenders under the provisions of Article 2338-1, Section 17, Vernon’s Civil **Statutes.** Whether such aperson is a none-time” offender or is an habitual offender is a question of fact.

DC. MARTIN ey General of Texas Prepared by Monroe Clayton Assistant Attorney General
APPROVED:
OPINION COMMITTEE Kerns Taylor, Chairman Bob Lattimore Tom Bullington Lonny Zwiener John Reeves
STAFF LEGAL ASSISTANT Hawthorne Phillips .



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