June 5, 1974 

The Honorable Emory C. Walton 

Criminal Dirtrict Attorney 

P. 0. Box 527 

Eaetknd, Texar 76440 

Dear Mr. Walton: 

Opinion No. H- 320 

Re: Prorecution of r+?r~q 

for por~ersion of aa 

alcoholic beverqq 

You have asked two quertione concerning the prorecution of minorr 

and have l upplfed the following factr: 

“On October 16, 1973, a 16-year-old male went 

into a liquor l tore and plrchared beer and wine for, 

and at the requeet of, four other minor’boyr and girls. 

ranging frgm .I2 to IS year.8 of age. After the purchare 

by~tbe 16ryear-old bby, the adult operator of the liquor 

. store delivered the purchared~beer and wine to the car 

~ontsining the four minora (agee 12 to lS.yeare); then, 

the 16-year-old boy got into hir car and Left and the four 

otheiminorr left’in theii cri with the ‘beer and w-he, 

after which thq four minorr were immediately apprehended. The 16-year-old male did not misrepresent hir 

age ae being.18, but simply said that he had no identification to prove his age to the liquor store operator. The 

adult operator of the liquor l tore wae filed upon and entered a ‘guilty’ plea to making alcoholic beverage8 available tb the l aid four minor male and female children. 

No chargem have been filed against the five minore, and 

the rn+tor ia pending. ” 

Your quortione aro: 

“1. Whsther or not the four minor childron (one girl, 

rge 12, one girl, ago 14, and two boya. age 151 can 

,p. 1477 
. . 

The Honorable Emory C. Walton, page 2 (H-320) 

be prosecuted for the alleged one-time offense 

of ‘Minor in Poeeeeaion of Alcoholic Beverage’? 

“2. Whethir or not the 16-year-old boy can be pro- 

#ecuted for the alleged one-time offense of ‘Making 

Alcoholic Beverage Available to Minors’?” 

The relevant statute is Article 666-17, $ 14(a) and (b), Vernon’s Teqe 

Penal Auxiliary LAWS [codified at the time of the alleged offenre PL Ariicle 

666-17, iI4(a) and (b); Vernon’, Teur Penal Code] which provider: 

“(14)(a)It l hall be unlawful for any perron uuder 

the age of twenty-ono (2l) year& to purchase any alcoholic 

beverage, . . . . It l hrll further be unlawful for any 

porron tier the age Of twenty-one (21) year* to porrerr. 

. . . or to consume any alcoholic beverage. . . . 

“(b) It l ball be unlrarful jo pprchaee an alcoholic 

beverage for or give, or knowingly make available, an 

alcoholic bovdrago to a porron under the ago of twentyon0 (24 yoarr. . . .I’ 

Article 5923b, Vornon’e Toue Civil Strtutee, hae the effect of eubotituting eighteen years of age for the articlc’e reference0 to twenty-one y&Ts 

of ago. Violatfon ir punirhable by fine only. Attorney General Opinion H-82 

( 1973). 

At the time of the alleged offenea , criminal prosecutions of young perl ~ewere governed by Actr 1973, 63rd Leg., ch 544. p. 1484. 52 (formerly 

Article 30, Vernon’r Texas Penal Code, and now found in substance at $8.07. 

Vernon’m Toxaa Penal Code). That etatute providld in pert: 

. . “(a) A person may not be prosecuted for or convicted 

for any offenee that he committed when younger than 15 

years of age, except: 

“(1) porjury, when it appear, by proof that he had 

iufficient discretion to underetand the nature end 

obligation of an oeth; 

p. 1478 
The Honorable ‘Emory C. Walton, page 3 (H-320) 

“(2) a violation of a penal statute cognizable 

under Chapter 302, Actr of the 55th Legislaturb, Regular Session, 1957, aa amended 

(Article gO2e, Vernon’s Texas Penal Codc);or 

“(3) a violetion of a motor vehicle traffic ordinance of an incorporated city or town in this 

rtate. 

‘l(b) Unless the juvenile court waives juriadiction and certifiee the individual for criminal prosecution, 

a perron nuy not be proeocuted for or convicted of any 

offoneo committed before roaching 17 yeare of age, 

except: 

“(1) perjury, when it l ppoare by prooj that he 

h a d l ufficiont diecrotion to undoretand the nature 

and obligation of an oath; 

“(2) a violation of a penal l trtute cognizable 

undor Chapter 302, Acte ?f the 55th Lagielature, 

Regular, Sorrion, 1957, ae amended (Article BO20, 

Vornon’e Texae Penal Code); or 

“(3) a violation of a motor vehicle traffic ordinance 

of an lncerporated city or town in this state. . . .‘I 

Section 51.04. Vernon’e Texaa Family Code, provides that tbe juvlznllc 

court hae excluiive original juriediction over proceedingr under Title 3 04 tbz 

Family Code. Section (a) of Article .53.01, which ia a part of Title 3, provides 

that: 

“(a) On referral of a child or a child’. case to the 

office or official derignated by the juvenile court, the 

intake officer. probation officer, or other perron l ulhorfred by the court l hall conduct a preliminary inve#tigetion 

to detormfno whothor:. . . . 

p. 1479 
The Honorable Emory C. Walton. page 4 (H-3201 

“(2) there ie probable cause to believe the 

child engaged in delinquent conduct or conduct 

indicating a need for supervision. . . .I’ 

Section (b) providee that if “there is no probable cau~le. . . the child 

rh.all immediately be released and proceedings terminated. ” Section 51.03 

of Title 3 of the Family Code define8 delinquent conduct and conduct indicating a need for l upervieion •#~ lollowe: 

“(a) Deliquent conduct ir conduct, other than 

a traffic Offenro, that violatoe: 

“(I) a penal law of thia state punirhable 

by imprironment or by confinement in jail; or 

“(2) a rearonable and.lawful order of a 

juvenile court enferod under Section 54.04 or 

54.05 of thie code; except tbat a violation of a 

rearonablo and lawful order of a juvenile court 

entered purmant to & determination that the 

child tingaged in conduct indicating a neod for 

ruporvirion aa defined in Section 51.03(b)(2) or 

5t.O3(b)(3) of thie code doee not constitute delinquent conduct. 

“(b) Conduct indicating a need for l upervlsion in: 

“(I) conduct, othei than a traffic offense, 

that on three or more occasions violrtea either 

of rho following: 

“(A) the penal Iewe of thie rtate of the 

grade of misdemeanor that are plniahable by 

flno only: or 

“(B) the penal ordinencer of any political 

l ubdivielon of thir l tate; 

p. 1480 
The Honorable Emory C. Walton. page 5 (H-320) 

“(2) conduct which violatee the compuleory l chool l ttoadance kwe; 

Y(3) the voluntary absence of a child 

from hlr home without the coneent of hi6 

parent or guardian for a substantial length 

of timo or without intent to return; or 

“(4) the.vio(ation of an order of a juvenils court entered under Section 54.04 or 

54.05 of thie coda. purrkant to + determination 

thit the child ongagod in conduct which violater 

the compuleory l cbool l ttondince lawe or the 

voluntary rbronco of tho child from hie homo 

rithout the conoont of tdr parent or guardian 

. for l l ubatanthl hngtb of time or without. 

htsnt to rotura.” 

. 

None of there aro applicable to the. factr rot forth in your opinion roqusqt 

and in vlor of thire rktutory limitrtione l nd’dofiuitionr, we do not bolipyk 

that Title 3 of the Family Code io applicable to one-time vio&tionr of A+- 

cle 666~.17(14).. . 

Although the detaile of tho etatutor have chinged, the baric atatstQ.ry 

l cheme hae not, and three A,ttornry Ge,aoraL:ppinjonr have diecurled *c 

rslationrhtp among tho;e. ihreo l cte, (ArticlC 66647(14), V. T. P. C., (now 

V. T. P.A. L), Acte 1973, 63rd Leg., ch. 544, p. 1484, $ 2 (formerly 

Article 30, V. T. P. C., and now $8.07, V. T..P. C.)~rnd ,Title 3 of the 

Femi’ly Codo, erp. 5 s St.03 rnd U.04 (formerly Article 2338-1,V.T.C.S.)). 

Attorney General Opinion WW-1171 (.L961) concluded that Artic~le 666-L?(I4) 

was “a rpecial exception to the general propopition that children cannqt he 

convicted of a cri&nal offonso. 

Artlclo $0 of the Penal Code. 

” The opinion did not codrider the lorrc$r 

Attorney Gcniral Opinion M-t63 (1967) held 

that Article 30 precluded conviction of children under the age of fifteen years. 

Attorney General Opinioa M-327 (1968)involved ofJeneee under Article 6&6.-I7 

(IO committed .by parroam fifteen yoara of ‘age or oldor but younger th+b \he 

ago no r nvll rtabliohlng y adult rorpoarlbility. Tho opiaion coucludod +a! 

p. .1481 
l-ho Honorable Emory C. Walton. p.gs 6 (H-320) 

l och one-time offendera 4re “not within the jurimdistion of the juvenile 

court 4nd mry ba proaecuted.for such violrtion in 413 appropriate crimin41 

court b4ving jurladiction of rucb ~ffensc. ” 4nd that in nuch cases the provision requiring 4 tr4nafar from criminal courtr to the juvenilcourt e 

(now F4mily Code, ( 51.0‘8, would not 4pply. 

We hrva #aan nothing in the action of rubsequent legial4tures to 

indicate 4 cb4nge from the interpretation d the rt4tuter advanced by 

there opinionr. When the bglrl4ture doe* not amend a st4tutc to rlter 

a consimtsnt construction given it by the Attorney Cener41, that conatruction ia entitled to great wilgbt. Sah Antonio Union Junior College Digtrict 

v. Daniel, 206 S. W. 2d 995 (Tex. 1947). 

Therefore, it i4 our opinion that. under the facta you describe, tho 

,poraona under the 4ge of fifteen ya4re are not l ,ubjsct to criminal prorocution or to juvaailo proceodlngm 4nd tht tboro perronr fifteen yearr of rge 

4nd 4b6v4 4rd l ubjoct to prorecutlon in t&o 4ppropri4to crimhl court. 

SUMMARY 

Ono~timo violatorr of Article 666-17(14)(a) and 

(b), V. T, P.~A. L. , which prohibit4 porrcmrion or conrumptiod of l lc 0h01bevorager ic by 4 minor or furnirb-. 

ing rlcoholic bovorager to 4 mlndr, 4ro not rubjoct to 

crimim1 proraeution or to juvenile proceedingr if they 

are under fifteen yearr of 4ge. Tbey are li4ble to 

crimin41 proaocution if they 4re fifteen yerrr of 4ge 

or oldor. A ono-time offender of Article 666-17(14)(4) 

or (b) ii not #ubJect to juvenile prbceedingr. 

Very truly yours, 

u Attorney CAnoraL of Tour 

p. 1482 
The Honorable Emory C. Walton. page 7 (H-3201 

APPROVED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1483