JIM MATTOX Attorney General

**Suprem Court**  **Suildlng P.**  **0. Box**  **12548 Austln.** **TX. 7071%** 

**2546 512l47525Ql**  **T&x gl(yB7C1367**  **T&cq&r 512/475&?3S** 

**714 Jackson.** 

**Suite 700**  **oeIlee,Tx. 7!52024ce**  **214x2%844**

**4324 Alberta** **Avs.. Suite**  **160 ElPseo.lx.**  **7woM793 WW3344W** 

**1Wl Texas,** **Sutt~ 7W**  **Noueton.**

**TX. 77002-3111**  **713n23eSm**

**606 8msdway.** **Suite 312**  **Lubbock.Tx m1-3479**  **303iT476238**

**4308 N.**  **Tenth, Sutta** **S McAtlenn.** 

**TX 76501-1665**  **612mS2e47**

**2mMslnflsa%sulte4w fan**  **Antonlo,**

**TX. 762052797**  **612/2264181**

**An Eauel** **OPportUnitY~** 

# The Attorney General of Texas

November

14. 1985

Mr. W. S. McBeath Abirdstrator TexasAlcoholic commissioa P. 0. Box 13127 Austin,

Texas Bererage

787ll Opinion No. ~~-380

Ret Iðera justiceof the peace or nnmiclpal

courthas jurisdiction to try a misdemeanor offenseunder chapter 106 of the Texas Alcoholic Beverage Code file against a 15- or 16-year-old

defendant

who has no prior record

Dear Mr. McBxath:

You bave reqmeted our opinionregarding the following

question:

Does a justiceof the peace or"&lcipal court l-me jurj.sdiction to try a misdemeanoroffense under any provisionof chapter 106 of the Texas Alcoholic:.

Bev&age Code filed againsta fifteenor sirteewp~r-old defendant who has no prior record of any ol.oletioas

of law?

As a pr&.mI&y matter,the criminal jurisdiction

of a municipal tiourt cad a juet:kr of the peace court is limited to misdemeanor offeases

punisbeble

by fine only; See Tex. Coast. art.. V. IBl. 19; see also V.T.C.S. srt. 1195;Code CrKProc. arts. 4.11, 4.14. These two courts ,%avecmncurrentjurisdiction over Class C misdemeanors. See Penal Code CU.23 (individuals adjudged guilty of a Class C ~dsmsauor shall be punished by a fine not to exceed $200). Consequently,

a justice

of the peace court and a municipal courtwould have jurisdiction

over misdem&nor offenses found -in chapter 106 of the Alcoholic

Beverage

Code which are punishable by fine only. Thus, the two courts woultd not have jurisdiction of section 106.08 of the code because the maximum punishment upon convictionmay include confinement

in the ~county

jail. See Alto. Bev. Code 01.05. - This office

ha:6 concluded

on severaloccasions thatminorsmay be prosecuted in cr!minal court for possible violations of offenses prohibitingthe possessionand consumption 'of alcoholicbeverages. AttorneyGeneralCpinions E-320 (1974);

M-327 (1968);

WW-1171 (1961). Attorney

General

Op,inion

WW-1171 concluded

that certainlaws involving

p. 1737Mr. W. S. HcBeath - Page 2 (3'14-380)

alcoholic

beverages

prwidml an exception to the statutory

provision against

prosecuting

minors in criminal **court.**
Since the issuance of these opinions, the legislature has recodifiedthose penal lms involvingalcoholic beverages into the Alcoholic Beverage Code. See Alto. Bev. Code 50106.01 et seq. Chapter 106 of the AlcchoE Beverage Code contains provisions relating to age, including: severalmisdemeanor provisionsinvolving conduct by a minor. ALo. Bev. Code $$106.02-106.07. The code presentlydefines "minor" as a person under 19 years of age. Id. 5106.01;

but see Acts 1985, 69th Leg., ch. 285, 011, at 2390; AZ 1985. 69th Leg., ch. 462, $9. at 3129, 3141.
The Penal Code prwidcs that "[ulnless the juvenilecourt waives jurisdiction

and certifies

the individual

for criminal

prosec+ioa. a personmay not be prosecuted for or convicted

of any offense.

. .. ." See Penal Code 58.07(b). The three express statutory exceptions

to Es waiver provision are perjury, aggravated perjury and state traffic

offenaes

excluding

driving

while intoxicated

and driving

under the influence

of drugs. See:

Penal Code 58.07(b). --. Jurisdiction

of the jmenile court $s defined by Title III of the Family Co&. Family Code OSl.Ori(a).~ Section 51.04(a)of the Family Cc&provides:

This title mmrs the ~proceedings in all cases iuvolving the delimpient conduct or conduct indicating

a neelrfor eupem%eion engaged in by a personwho was a~child~within the meanUg of this title at.the time'hegaged in the conduct,and the juvenilecourt has exclusiveoriginal jurisdiction Over I

G:oceedin

8 under this title. o?mpbasis

added),:
The FamilyCode defines"child"as a petson "ten years of age or older and under 17 years of age.'" See Family Code 551.02(1)(A). "Delinquent conduct" is not rtpplicable to misdemeanor offenses. See Attorney General Opinion.' E-487 (1975); see also Family Code C54.02(a)(l). However. "(louduct Indicating.A Need for Supervision" has been defined by the legislature to include "three or more" offenses that are a violation of a penal ordinanceof a "political eubdlvision

of this state." See Family Code 051.03(b)(l)(B) (this. provision

excludestraffic offenses). Consequently, AttorneyGeneral OpinionJM-316 (1985) concluded that a municipalcourt does not have jurisdiction

Over a Class C misdemeanor offenseinvolving

a fifteen

or sixteen-year-old

defendantwho has fever than three prior Class C misdemeanor

convictions.

p. 1738Mr. W. S. McBeatb - Page 3 (JM-380) ‘I

The Attorney Gener,LL, in 3!4-316.

reasoned that .section 51.08 of the FamilyCode re.quirmh that the mmicipal court transfer these cases to the juvenile court :Eor disposition. We believe that Attorney General Opinion .lM-316 (1985) is consistent with one of the general purposes of Title III ,3:E the Family Code "to remove from children committing

unlawful

acts **.the** taintof criminality and the consequences of criwinal behavior and to substitute a program of treatment. trainingand rehabilitati~on." See Family Code S51.01(3); see also 31 Tsx. hr. 3d Delinquent;ChildK 56. The proceeding in juvenile court is civil in naturtVr and fewer than three Class C misdemeanors
are not considered crimlualprosecutions. See Steed v. State, 183 S.W.2d 458 (Tex. 1944); see also Family Code 051.13(a); Attorney GeneralOpinion .I+316 (1985). Attorney GeneralOplr~iou JM-316 did not discuss the ap$licatioa of the Alcoholic

Beverage

Code when violated by minors. Althoughthe legislature

intended

that a minor child's unlawfulacts be prosecuted within the juvenile courts as a general rule, it has provided a specificstatutory

procedure

exclusively

for minors to be followedin criminal prosecution of minors under chapter 106 of the Alcoholic BeverageCode. The 1egiaLature has provided that when a child under the age of 19 is prosecuted in c-1 court, mnicipal or jusfice court, for violation of an offensein the Alcoholic Beverage

Code, the court having jurisdiction Over the offense is required to adopt a. apecialiaed

procedure. Mco. Bev. Code $§106.10-.12; see also R. Da-. Texas Juveuile Law 37 (1984) (general discussion on specialized

procedure for-zors in the Alcoholic Beverage Code). A&ordingly. -Attorney GeneralOpinionJM-316 (1985) is not applicable to the prosecution of minors, fifteenor sixteen-year-olds, who have violatedeny provision pf chapter106 of the Alcoholic Beverage

**Code.** See Attorney General OpkLons H-320 (1974); K-327 (1968); WW-1171 m61).
The specialized

procedurerequiresthat the minor may not plead guilty except in ape* cm.rt, Alcoholic Beverage Code L106.10, the minor may not be convicted generally

unlesshis parent or guardianis present in court.,

Alcoholic:

Beverage Code 5106.11(a). and the minor convicted

of nof more than one violation may apply to the conrt, on attaining the.age of 19, to have the'conviction expunged from his record. Alcoholic Beverage! Code 0106.12(a). The legislaturehas provided a similar procedt.re to be followed by a criminal court, municipal**court** or justice :ourt, when a minor has violateda traffic offense. See V.T.C.S. art:,67011-4, Ola, 12. Moreover, traffic offenses

areexempted from ‘ the exclusive jurisdiction

of the juvenile court. Thereforeto conclucle that a municipalcourt has jurisdiction **to** try an offense under the Alcoholic Beverage Code, which is punishable

by a fine only, does not create a conflict with Attorney General

OpinionJM-316 (1985.).

p. 1739 1Mr. W. S. McBeath - Page 4 (JM-380)

SUMMARY

A justice of the peace court or a municipal court has jurisdiction to try a misdemeanor offense

of the TexasAlcoholic Beverage

Code which is punishable

by fine only filed againsta 15- or 16-year-old

defendant

who has no prior record of any violation

of law.

JIM MATTOX .,

Attorney

Generalof Tetis
MUTKEILgR l?.recutive

Assistant

Attorney

General

BOBBBTGUT Special

Assistant

Attorney

General

RICK GILPIN Chairman,

OpinionCommittee Prepared

by Tony Guillory

end SuaanL. Gsrrison Assistant

Attorneys

General

APPROVED: opmICNcGMMITlxE
Rich Gilpin,Chairman. Colin Carl SuaanGarrison Tony Guillory Jim Moellinger Jennifer

Riggs Nancy Sutton SarahWoelk

0
p.2740