DAN MORALES

ATTORNEY CENERAL 

## Bfficc of tl)eBttornep @cneral &ate ofIEexae
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 700East 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. Camand 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 havejurisdiction 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 criminaljurisdiction 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 inthis 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), alsoissuedto&y.
The conclusion Of Attorney General Opiaion DM-320 was based on our COnstruCtionofthe constitutional grant ofjurisdiction tojustice 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 sectionThe Honorable JamesW.Carr - Page 2 (DM-427)

The Honorable David M.Motley

106.115 authorized a courtto 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 withjustice courts

incriminal caseswithin thejustice courtjurisdiction that: (I) arisewithin the territorial limits ofthe city; and (2) arepunishable only with afine notto exceed $500.
Act of May 2. 1991, 72d Leg., RS., ch. 108, 57, 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; accordCode Crim. Proc. art. 4.14 (providing that jurisdiction of municipal court, including ntunkipal court of recor4, is concurrent %th anyjustice ofthe 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 ofMay 24, 1995,74th Leg., RS., ch. 449, =$3,1995Tex. 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 tojustice courta, municipal courta then also lacked original uiminal jurisdiction inprosecutions 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 bebrotightkt 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

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The Honorable David M.Motley

or imprisonment that is rehabilitative or remedial in nature.” Id gI (amendingjusticecourt jurisdiction in Code Grim.Proc. art..4.11). The same legislation generally expands in a simih fashion thejurisdiction ofthe municipal courts, including municipal courts of record. See id.$52 (amendingjurisdiction of municipal court, including municipal court ofrecord, inGov’t Code 329.003), 3(amendingjurisdiction ofmunicipal court, including municipal wurt ofrecord, inCode Crim. Proc. art. 4.14); see uko id.@4 -6 (amending jurisdiction of specific municipal courts of record in Gov’t Code $930.035, .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 isremedial innature.
A sanction constitutes punishment if it serves the twin aims of punishment: retribution and deterrence. UnitedSfatesv. 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 injail and forfeiture of a right or privilege are examples of punishments that faUoutside the jurisdiction of the justice courta, see Exparle 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 samejurisdictional 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 serveretributive or deterrent purposes.
Alcohol awareness education, on the other hand, serves remedial purposes. Code section 106.115, as amended bythe last legislative session, see Act ofMay 24.1995.74th Leg., RS.. ch. 615. $1.1995 Tex. Gut. Laws 3474,3475, provides inpart asfollows:

(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

@), whichisdismsedbelow

atpages7-9.provides

asfoUows:The Honorable JamesW. 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 ofthe 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, andconsultation services for statewide and wmmunity-based services

.. .. The policy actuating the creation ofthe Texas Commission on Alcohol andDrug 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 ofthe Admin&&ve Code. Section 152.20 oftitle 40provides asfollows:

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 assistparticipants indeveloping aplan to reduce the probability of involvement in tirture alcohol-related illegal behavior or detrimental activity.

(footnet.? watiaued) defendanttopafoxmeightto12hoursofwmonnn ‘ty km-viceinstead of participating

inanalo3holawareness -. .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 setreasonable wurse fees. We areinformed 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 ofthree 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 awurse of such education may be the deterrence of violations ofcode 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 ofthe course (and, ifthe course is successfiJ ita actual result in some cases) is the prevention of chemical dependency and thus isrelated to the deterrence ofviolations ofthe subject code sections, the relationship isonly iudirect. In any event, we believe that the deterrent effect ofan 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 isbased 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 oftreatment.
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 ofjurisdiction of prosecutions under code sections 106.02, 196.04, and 106.05 merely because code section 196.115 authorizes the imposition ofalcohol awareness education upon conviction under any ofthose 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 ofwmmunity service asfollows:

Ifthedefendantresidesinaruralorotherareain~~access to an alcohol awareness wurse isnot readily available, the wurt ahall require the defendant to perform eight to 12 hours of wmmunity service instead ofparticipating inan alcohol awareness wurse.
Act ofMay 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 apunishment that would deprivejustice courts and municipal courts of crimkal jurisdiction. It is newssary that we consider subsection (b) in order toThe Honorable James W.Carr - Page 6 (DM-427)

The Honorable David M.Motley

determine whether justice **courts** and municipal courts havejut&h&on of prosecutions under the subject code sections.

A sanction is punishment, as we have noted, ifit kannot fairly be said solely to serve aremedial purpose, butrather canonly beexpJainedas ako serving either retributive
or deterrent purposes,” UnitedStates v.Hcdper,

490U.S. at 448. Nothing inthe language of subsection (b)wntines the discretion ofthe court with respect to the sort of community service thatitmay 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 nojurisdiction ofviolations ofcode 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) ofsection 106.115were wnstitutional.

In Attorney GeneraJ Opinion DM-285, however, we concluded that the justice hurts were not deprived ofjurisdiction of prosecutions under a’penal statute that was amended to authorize SDorder ofcommunity service ifthe defendant failed to pay a tine
or costa previously assessed on a wnviction or was unable, because ofpoverty, to pay a line or Costaon 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 tojustice 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 ispu&hment in addition to the fine. Moreover, the 1~ has enacted no Jawgenerally authotizingjustice courts or municipal courts toimposewmmlml ‘ty service in addition to fines. Therefore., subsection (b), if valid, would deprivejustice wurts and municipal courts, at least in some areas, ofjurisdiction of all prosecutions under code sections 106.02, 106.04, and 106.05 because those misdemeanors would bepunishable by something other than afine.
Subsection (b) raises wnstitutional wncems because itprovides 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 Jawswill operate on all alike+regardless ofwhich political subdivision isthe venue ofprosecution Evparte Sizemore,~8 S.W.2d 134, 136 (Te-x.Crirn. App. 1928).The Honorable JamesW.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. ‘InSisemore thecourtstruck down aprovision of alocal road law that purported to require the crediting ofconvicts’ road labor against their tines and costs at the rate of f%y cents per day ofwork because it diiered from a statewide law providing that such labor would be credited at three dollars per day.- The principles of Sitemore
werereafh-medinExpmte Ferpson, 132 S.W.2d 408, 410 (Tax. Grim. App. 1939) which held that due process andequalprotection were denied by statutes providing forthe 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 injail on convictions ofmisdemeanors they were when unable to pay such fines and costs. Then, inExparie Cmson, 159S.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 ofDallasand 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 isapplied generally throughout the State,” Id.at 129-30. Finally, inMemet 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 asclass B misdemeanor (by ahigher maximum fme or imprisonment or both) inothers. fiZ&&ently with the foregoing case law, this office opined in AttorneyGeneral Opinion JM-880: “A Jawallowing different costs to be Assessedin difFeremcounties 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, inAttorney 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 inthe statutory county court in some counties.
The forego-mgauthorities uniformly suggest that subsection (b) of section 106.115 camrot pass muster because itdoes not operate on allpersons 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 ofboth 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

. . .ofthe statute that can be given effect without the invalid provision,” G&t Code 5311.032(c). The other provisions of

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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.I15 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 thejustice 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 ofconfhtement 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.ablebecause they maybe given effect witjtout subsection (b).

DAN MORALES Attorney General ofTexas
JORGE VEGA Fm Ass&ant Attorney General

&UCAHJ.SHIRLEY Chair, Gpiion Committee Prepared byJames B.Pinson Assistant Attorney General

.