DAN MORALES 

ATTORNEY CENERAL 

Bfficc of tl)e Bttornep @cneral 

&ate of IEexae 

December 19, 1996 

The Honorable James W. Carr 

Lavaca County Attorney 

P.O. Box 576 

Courthouse, 2nd Floor 

I-Iallettsville, Texas 77964 

The Honorable David M. Motley 

Kerr County Attorney 

County Courthouse, Suite B20 

700 East Main street 

Keaville. Texas 78028-5324 

Opiion No. DM-427 

Re: Whether justice courts and 

municipal courts have jurisdiction of 

prosecutions under Alcoholic Beverage 

Code sections 106.02, 106.04, and 

106.05, which prohibit the possession, 

consumption, and purchase of alcoholic 

beverages by persons under the age of 

twenty-one years (RQ-8 10) 

Dear Mr. Cam and Mr. Motley: 

You both ask which court or courts in your counties have original jurisdiction of 

prosecutions of criminal cases filed under Alcoholic Beverage Code (“code”) sections 

106.02, 106.04, and 106.05. Those sections prohibit the purchase, co11sun41tio4 or 

possession of an alcoholic beverage by a person who is younger than twenty-one years. 

Your questions result from our issuance of Attorney General Opinion DM-320, which 

concluded that the justice courts do not have jurisdiction of prosecutions u&x those 

sections. Attorney General OpinionDM-320 (1995) at 3. 

Sic-e the issuance of that opinion, the Seventy-fourth Legislature, in House Bill 

No. 1648, has changed the criminal jurisdiction ofjustice courts and municipal courts. See 

Act ofMay 24.1995.74th Leg., RS., ch. 449,1995 Tex Gen. Laws 3150,315O. Those 

legislative changes not only determine the answer to yoti questions but also have 

statewide effect. For these reasons, we consider in this opinion whether justice courts and 

municipal courts have jurisdiction of prosecutions under Alcoholic Beverage Code 

sections 106.02, 106.04, and 106.05. Based on our conclusion here, we have answered 

your specific questions about Lavaca and Kerr counties in a separate opinion, Letter 

Opinion No. 96- 144 (1996), also issued to&y. 

The conclusion Of Attorney General Opiaion DM-320 was based on our 

COnstruCtion of the constitutional grant of jurisdiction to justice courts “in crkinal matters 

of misdemeanor cases punishable by fine only,” Tex. Co&. aut. V, 5 19, as “iincludri] 

only offe.tws the sole sanction for which is a fine,” Attorney General Opinion DM-320 

(1995) at 2. We recognized there that the legisti could have, but had not, expanded 

the jurisdiction of the justice courts pursuant to the constitutional provision for “such 

other jurisdiction as may be provided by law,” Tex. Const. art. V, 3 19, to include the 

non&e sanction of alcohol awareness training that Alcoholic Beverage Code section 
The Honorable James W. Carr - Page 2 (DM-427) 

The Honorable David M. Motley 

106.115 authorized a court to impose on conviction under section 106.02, 106.04, or 

106.05. Attorney General Opinion DM-320 (1995) at 2 ~3. Furthermore, when we 

issued Attorney General Opinion DM-320, the municipal courts getter&y had concurrent 

jurisdiction with justice courts 

in criminal cases within the justice court jurisdiction that: 

(I) arise within the territorial limits of the city; and 

(2) are punishable only with a fine not to exceed $500. 

Act of May 2. 1991, 72d Leg., RS., ch. 108, 5 7, 1991 Tex. Gen. Laws 681, 682; 

(amendiig Gov’t Code $ 29.003(b)), unrent&d by Act of May 24, .1995,74th Leg., RS., 

ch. 449, $ 2. 1995 Tex. Gen. Laws 3150, 3151; accord Code Crim. Proc. art. 4.14 

(providing that jurisdiction of municipal court, including ntunkipal court of recor4, is 

concurrent %th any justice of the peace in any precinct in which the city, town or village 

is situated in all criminal cases arising under the crimkal laws of this State, in which the 

punishment is by fine only, and where the maximum of such tine may not exceed $500, 

and arising within such corporate limita”), amenakd by Act of May 24, 1995,74th Leg., 

RS., ch. 449, =$3, 1995 Tex. Gen. Laws 3150, 3151-52.’ The municipal coutts had no 

greater statutory jurisdiction of state aiminal offenses than the justice courts had. 

.Because municipal courts are not constitutionally created coutta but rather exist only by 

virtue of the legislature’s wn&ttionaJ power to %stal~liah such other courts as it may 

deem necessary,” Tat. Const. art. V, 3 1, they have nojutiadiction other than that which 

the legislature prcsaibeq id. Therefo~ for the reasons stated in Attorney General 

Opinion DM-320 in regard to justice courta, municipal courta then also lacked original 

uiminal jurisdiction in prosecutions under code sections 106.02,106.04, and 106.05. 

Siicc the issuance of Attorney General Opinion DM-320, the IegisJature has 

generally expanded the original jurisdiction of the justice courts and municipal wurts, 

including municipal wurts of record-and has speciticaJJy expanded the jurisdiction of 

certain municipal courts of record-so that prosecutions under sections 106.02, 106.04, 

and 106.05 may now be brotightkt those wutts. The Seventy-fourth Legislatute’s House 

BillNo. 1648. An ofMay24,1995,74thLeg.,RS.,ch. 449, 1995Tex. GenLaws3150, 

3150, grants original jurisdiction to justice wurta in ckninal cases punishable by a fine 

only or by a tine and, *as authorized by statute, a sanction not consisting of con6nernent 

,’ 
The Honorable James W. Carr - Page 3 (DM-427) 

The Honorable David M. Motley 

or imprisonment that is rehabilitative or remedial in nature.” Id g I (amending justicecourt jurisdiction in Code Grim. Proc. art.. 4.11). The same legislation generally expands 

in a simih fashion the jurisdiction of the municipal courts, including municipal courts of 

record. See id. $5 2 (amending jurisdiction of municipal court, including municipal court 

of record, in Gov’t Code 3 29.003), 3 (amending jurisdiction of municipal court, including 

municipal wurt of record, in Code Crim. Proc. art. 4.14); see uko id. @4 - 6 (amending 

jurisdiction of specific municipal courts of record in Gov’t Code $9 30.035, .263, .653). 

The jurisdictional changes enacted in House Bill No. 1648 apply only to offenses 

committed after September 1, 1995. Id. Q 7 - 8. We believe that alcohol awareness 

education now falls within the newly expanded jurisdiction of the justice wurts and 

municipal courts because, as we explain below, alcohol awareness education is not 

punitive but rather is remedial in nature. 

A sanction constitutes punishment if it serves the twin aims of punishment: retribution and deterrence. UnitedSfates v. Hdpr, 490 U.S.. 435, 448 (1989). 

“[A] . . . sanction that cannot fairly be’ aaid solely to serve a remedial purpose, but rather 

can only be explained as also serving either retriiutive or deterrent purposes, is 

punishment.” Id. (referring to civil sanction but stating that notion of punishment “cuts 

across the division between the civil and the whninaJ law”). See WEBS?ER’S NINTH NEW 

COLLEGIATE DICTIONARY 955 (1989) (defining punishment aa “suffering, pain, or loss that 

serves as retribution,” or -a penalty inflicted on an offender through judicial procedure”); 

see also id. at 868 (defining penalty in part aa “the au&ring in person, rights, or property 

that is annexed by law or judicial decision to the wmmiasion of a.crime or public 

offense”). lmprisonrnent in jail and forfeiture of a right or privilege are examples of 

punishments that faU outside the jurisdiction of the justice courta, see Ex parle Morris, 

325 S.W.Zd 386. 388 (Tex Ctim. App. 1959); see aLso Attorney General Opinion 

DM-285 (1994) at 4 (suspension of driver’s license), as well as the municipal courts, 

which have the same jurisdictional limits, see Act of May 24,1995,74th Leg., RS., ch. 

449, 8s 2 - 6, 1995 Tex. Gen. Laws 3150, 3151-52. We believe that these sanctions 

necessarily serve retributive or deterrent purposes. 

Alcohol awareness education, on the other hand, serves remedial purposes. Code 

section 106.115, as amended by the last legislative session, see Act of May 24.1995.74th 

Leg., RS.. ch. 615. $1.1995 Tex. Gut. Laws 3474,3475, provides in part as follows: 

(a) Except as provided by Subsection (b), on conviction of a 

minor of an offense under Section 106.02, 106.04, or 106.05. the 

wurt., in addition to asses&g a tine as provided by those sections, 

shall require the defendant to attend an alcohol awareness course 

approved by the Texas Commission on Alcohol and Drug 

Abuse. . . ? Footnote added.] 

‘SobsectJon @), which is dismsed below at pages 7-9. provides as foUows: 
The Honorable James W. Carr - Page 4 (DM-427) 

The Honorable David M. Motley 

The authority of the Texas Commission on Alcohol and Drug Abuse to approve an 

“alcohol awareness wurse” derives from section 461.012 of the Health and Safety Code, 

which charges the commission with the duty, among others, to 

(2) plan, develop, coordinate, evaluate, and implement wnstructive methods and programs for the prevention, intervention, 

treatment, and rehabilitation of chemical dependency in cooperation 

with federal and state agencies, local governments, organizations, 

and persons, and provide technical assistance, funds, and consultation 

services for statewide and wmmunity-based services . . . . 

The policy actuating the creation of the Texas Commission on Alcohol and Drug Abuse is 

statedinsection461.001oftheHealthandSafetyCode: 

Chemical dependency is a preventable and treatable illness and 

public health problem a&cting the general welfare and the economy 

of the state. The legislature recognizes the need for proper and 

auflicient facilities, programs, and prowdures for prevention, intervention, treatment and re?tabiitation. It is the policy of this state 

that a chemically dependent person shall he offered a wntinuum of 

,- 

~~thatwillenablethepersontolmdanonnallifeasa 

productive member of society. 

See u&o Health & Safety Code § 461.003 (wmtnission created for purpose of “preventri] broken homes and. . . los[t] . . . lives”). Hence, the purpose of alcohol 

awareness education is the prevention and remediation of the public health problem of 

chemical dependency. 

The Texas Commission on Alcohol and Drug Abuse has adopted implementing 

regulations in chapter 152 of title 40 of the Admin&&ve Code. Section 152.20 of title 

40 provides as follows: 

The purpose of an alcohol awareness program approved by the 

wmmission shall be to present information to participants on the 

effects of alcohol upon behavior and upon the lives of persons who 

use. alcohol; ,to help participants identify their own ddnking patterns 

or problems; to &mate. participants about the laws relating to 

possession, wnsumption, and pmchase of alwholic beverages; and 

to assist participants in developing a plan to reduce the probability of 

involvement in tirture alcohol-related illegal behavior or detrimental 

activity. 

(footnet.? watiaued) 

defendanttopafoxmeightto12hoursofwmonnn ‘ty km-vice instead of 

participating in an alo3hol awareness -. . 
The Honorable James W. Car-r - Page 5 

The Honorable David M. Motley 

@M-427) 

Section 152.25(13) of title 40 requires that an approved program of alcohol awareness~ 

education for minors set reasonable wurse fees. We are informed that the usual admission 

fee for an alcohol awareness course ranges between $25 and $50, with $25 being more 

common. We also are informed that the typical wurse schedule wnsists of three hours of 

instruction per day on two separate days and that the student is permitted to attend the 

classes on dates that are convenient to the student, subject:to class availability and any 

wurt-impcsed deadline.- 

We believe that alcohol awareness education is solely remedial in purpose even 

thcugh a result of the imposition of a wurse of such education may be the deterrence of 

violations of code sections 106.02,106.04, and 106.05. The wurse’s six-hour duration is 

not onerous, especially given that the student is allowed some control over scheduling the 

class dates, and the modest registration fee is not disproportionate to the costs of 

instruction and course materials. Although the purpose of the course (and, if the course is 

successfiJ ita actual result in some cases) is the prevention of chemical dependency and 

thus is related to the deterrence of violations of the subject code sections, the relationship 

is only iudirect. In any event, we believe that the deterrent effect of an alcohol awareness 

wurse is not baaed on negative reinforcetn~ that is, an aversion to the wurse as a 

repugnant wnsequence of engaging in the subject code violations. Rather, the deterrent 

e&t of alcohol awareness education is based on the student’s increased appreciation of 

the dangers of alcohol abuse, an appreciation that will enwurage voluntary abstention or 

tcqxxance and, in the case. of a person with actual chemical dependency, the voluntary 

seeking of treatment. 

In our opinion, then, a wurt-otdered program that deters conduct hy education 

rather than by negative reinforcement is not a punishmw but a sanction that is 

rehabilitative or remedial in nature. We accordingly conclude that justice courts and 

municipal wurts are not deprived of jurisdiction of prosecutions under code sections 

106.02, 196.04, and 106.05 merely because code section 196.115 authorizes the 

imposition of alcohol awareness education upon conviction under any of those sections. 

In this regard, however, we tn&t note that there is one other possible sanction for 

violation of any of the subject code sections. Subsection (b) of code section 196.115 

purports to authorize the imposition of wmmunity service as follows: 

Ifthedefendantresidesinaruralorotherareain~~access 

to an alcohol awareness wurse is not readily available, the wurt ahall 

require the defendant to perform eight to 12 hours of wmmunity 

service instead of participating in an alcohol awareness wurse. 

Act of May 24, 1995, 74th Leg., RS.. ch. 615, 5 1, 1995 Tex Gen Laws 3474,3475 

(amending Alw. Bev. Code 3 196.115). This provision raises the issue of whether 

community service is a punishment that would deprive justice courts and municipal courts 

of crimkal jurisdiction. It is newssary that we consider subsection (b) in order to 
The Honorable James W. Carr - Page 6 (DM-427) 

The Honorable David M. Motley 

determine whether justice courts and municipal courts have jut&h&on of prosecutions 

under the subject code sections. 

A sanction is punishment, as we have noted, if it kannot fairly be said solely to 

serve a remedial purpose, but rather can only be expJained as ako serving either retributive 

or deterrent purposes,” UnitedStates v. Hcdper, 490 U.S. at 448. Nothing in the language 

of subsection (b) wntines the discretion of the court with respect to the sort of community 

service that it may order. AccordmgJy, this sanction cannot be said to be solely remedial. 

Since the sanction therefore is or may he punitive, it would appear that justice and 

municipal wurts would have no jurisdiction of violations of code sections 106.02,106.04, 

and 106.05 in “+sa[s] in which access to an alcohol awareness wurse is not rdy 

avaiiahlq” ifsubsection (b) of section 106.115 were wnstitutional. 

In Attorney GeneraJ Opinion DM-285, however, we concluded that the justice 

hurts were not deprived of jurisdiction of prosecutions under a’penal statute that was 

amended to authorize SD order of community service if the defendant failed to pay a tine 

or costa previously assessed on a wnviction or was unable, because of poverty, to pay a 

line or Costa on a wnviction. The amendment at issue in that opinion involved section 

104 of V.T.C.S. article 67014 which section prohiiits “overtaking and passing a school 

)us.” Se V.T.C.S. art. 67qld, 5 104(e). We explained that connnunity aetvice under 

. se&ion 104 was authorized only when the defendant had E&ad, or was unable, to pay a 

fineorcostsandthuswasnotinadditionto,but~~wasinthealtemativeto,the~e 

and was de&xxi only to effectuate the atate’s interest in punishment and deterrence. 

Attorney General Opiion DM-285 (1995) at 4-5. ,Furthe.m~ore, we explained, the 

Seventy-third Leg&tme also had enacted a separate statute generally authorizing a 

“justice or judge” to impose wmmunity aervice in the aame ciraunstances, id. at 5 

(quoting Code Crirn. Proc. art. 45.521), and thus had acted consistently with constitution 

article V, section 19, which grants to justice wutta “such other jurisdiction as may be 

provided by law,” id. (quoting Tex Const. art. V, § 19). 

By contrast, subsection (b) of section 106.115 purports to authorize community 

service aa an altemative. not to a tine, but to alcohol awareness education. Thus, 

wmmunity service under this provision is pu&hment in addition to the fine. Moreover, 

the 1~ has enacted no Jaw generally authotizingjustice courts or municipal courts 

toimposewmmlml ‘ty service in addition to fines. Therefore., subsection (b), if valid, 

would deprive justice wurts and municipal courts, at least in some areas, of jurisdiction of 

all prosecutions under code sections 106.02, 106.04, and 106.05 because those 

misdemeanors would be punishable by something other than a fine. 

Subsection (b) raises wnstitutional wncems because it provides for the imposition 

of a punishment in some areas of Texas that may not be imposed in other areas Our 

state’s constitutional principle-s of due process and equal protection guarantee that 

penalties for violations of state crimkal Jaws will operate on all alike+ regardless of which 

political subdivision is the venue of prosecution Evparte Sizemore,~8 S.W.2d 134, 136 

(Te-x. Crirn. App. 1928). 
The Honorable James W. Carr - Page 7 (DM-427) 

The Honorable David M. Motley 

The courts of this state have consistently struck down laws that would impose 

diiexent punishments on defendants for the commission of the same offense in diierent 

parts of the state. ‘In Sisemore the court struck down a provision of a local road law that 

purported to require the crediting of convicts’ road labor against their tines and costs at 

the rate of f%y cents per day of work because it diiered from a statewide law providing 

that such labor would be credited at three dollars per day.- The principles of Sitemore 

were reafh-med in Expmte Ferpson, 132 S.W.2d 408, 410 (Tax. Grim. App. 1939) 

which held that due process and equal protection were denied by statutes providing for the 

allowance of difibrent amounts daily, according to the population of the county of 

conviction, as credits on tines and costs assessed against persons sentenced to work or 

imprisonment in jail on convictions of misdemeanors they were when unable to pay such 

fines and costs. Then, in Exparie Cmson, 159 S.W.2d 126 (Tex. Crim. App. 1942) the 

court declared unconstitutional a statute providing for a one-dollar cost assessment in 

caimhal cases for the county law library fund in counties having eight or more county 

caxts, which statute thus applied only to the counties of Dallasand Harris. The &mot 

court found Sizemore to be applicable to the cost assessment statute because the statute 

purported to “attach a greater penalty for the violation of a provision of the Penal Code 

for some counties than is applied generally throughout the State,” Id. at 129-30. Finally, 

in Memet v. Staie, 642 S.W.2d 518,525-26 (Tex. App.-Houston [14th Dist.] 1982, pet. 

refd). the court struck down on e&al protection and due process grounds a statute 

purporting to make a proscribed offense punishable as a class C niisdemeanor (by tine 

only) in some cities and punishable as class B misdemeanor (by a higher maximum fme or 

imprisonment or both) in others. 

fiZ&&ently with the foregoing case law, this office opined in Attorney General 

Opinion JM-880: “A Jaw allowing different costs to be Assessed in difFerem counties for 

the same penal offense would have the e&ct of allowing the penalty for state-defined 

crimes to vary from county to county and would violate both ‘due process’ and ‘equal 

protection* constitutional rights.” Attorney General Opinion JhG880 (1988) at 3. 

Accordingly, in Attorney General Opiion DM-123 (1992) we declared unconstitutional a 

statute that authorized the taxing of an additional ten dollars in court costs for each 

crimid conviction in the statutory county court in some counties. 

The forego-mg authorities uniformly suggest that subsection (b) of section 106.115 

camrot pass muster because it does not operate on all persons alike but instead authorize% 

for the same offense, a cdminal punishment in some venues of prosecution that is not 

authorized in other venues. We therefore conclude that subsection (b) is unwnstituti~d 

as a denial of both due process and equal protection. C$ Memer v. State, 642 S.W.2d at 

325. 

The invalidity of subsection (b) does not a&ct the rest of section 106.115, 

however. Because the Code Construction Act, Gov’t Code ch. 311, governs section 

106.115, see Alto. Bev. Code $1.02, we must apply the rule that the invalidity of a 

provision of a statute “does not a&ct other provisions . . . of the statute that can be given 

effect without the invalid provision,” G&t Code 5 3 11.032(c). The other provisions of 

. 
The Honorable James W. Carr - Page 8 (DM-427) 

The Honorable David M. Motley 

section 106.115 remain valid and enforceable because. they may be given effect without 

subsection (b). Accordingly, we conclude that subsection (a) of section 106. I 15 is 

applicable statewide and that all courts shall require a minor offender under the relevant 

statutes to attend an alcohol awareness course. 

Having,considered all the possible sanctions for a violation of any of the subject 

code sections, we conclude that the justice courts and the municipal courts to which the 

Seventy-fourth Legislature’s House Bii No. 1648 applies do have jurisdiction of 

prosecutions for violations of code sections 106.02, 106.04, and 106.05 because the 

sanctions that may be imposed for such violations include only a fine and a remedial 

sanction not consisting of confhtement or imptisomnent. 

SUMMARY 

l’& .justice courts and the municipal courts to which the 

Seventy-fourth Legislature’s House Bii No. 1648 applies do have 

jurisdiction of prosecutions for violations of Alcoholic Beverage 

code sections 106.02,106.04, and 106.05. 

Subsection (b) of section 106.115 of the Alcoholic Beverage 

Code violates state constitutional guarantees of due ~process and 

e&l protection because it authorizes the imposition of a ckinal 

punishment (community service) in some venues of prosecution 

(areas in which an aldol awareness come is not readily available) 

that is not authorized in other venues. Subsection (b) is therefore 

invalid, but the other provisions of section 106.115 remainvalidand 

enforce.able because they may be given effect witjtout subsection (b). 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fm Ass&ant Attorney General 

&UCAHJ.SHIRLEY 

Chair, Gpiion Committee 

Prepared by James B. Pinson 

Assistant Attorney General 

.