# Office oftfje Qttornep'QiSeneral

. &ate ofltCexae February 6,199s

Mr. Doyne Bailey Administrator Texas Alcoholic Beverage Commission P.O. Box 13127 Austin, Texas 7871I-3127

Dear Mr. Bailey: opinion No. DM-320
lb: Whether justice courts have jurisdiction of prosecutions for violations of sections 106.02, 106.04, and 106.05 of the Alcoholic Beverage Code (RQ-65 1)

You ask us two questions regarding Alcoholic Beverage Code (“code”) sections 106.02, 106.04, and 106.05. Section 106.02 prohibits the purchase of an alcoholic beverage by a minor. Section 106.04 generally probibits the consumption of an alcoholic beverage by a minor. Fiiy, section 106.05 generally prohibits the purchase of alcohol for, or the furnishing of alcohol to, a minor. The Seventy-second Legislature amended these sections to change the range of fines assessable for subsequent convictions under these sections from a minimum ofSlOOandamaximmn of SSOO to a minimum of S250 andamaximumofS1,OOO. See Acts 1991,72dLeg., ch. 163,Q 1-3.’
You fkst ask whether the justice courts have jurisdiction of prosecutions for subsequent violations of these three sections in spite of the new tie ranges. Our state constitution grants tojustice courts originaljurisdiction of all misdemeanor offenses that are “punishable by tie only,” without limitation as to tine amount, “and such other jurisdiction as may be provided by law.” Tex. Const. art. V, $19. Article 4.11 of the Code of Criminal Procedure, however, purports to Iimitthe ckninal jurisdiction ofjustice cants to crimes punishable by a maximum fine of SSOO. This purported limitation is tuvxnmitutionaI and void because the legislature has no power to restrict the wnstitutiond jurisdiction of the district courts and the inferior courts. 

### E.g., Attorney General Opiion DM-277 (1993) at 3. Therefore, the new maximum tines of S1.000 under sections 106.02,106.04, and 106.05do not exceed thejustice courts’jurisdiction.
1Afirrt-timcviolati~daayottbaccodcsectionsisplnibhablcbyafineranging~mS2Sto szoo. see Alco.Bov.code $0106.02@), .04(C), .05(c). WenotctbsttheSMnty-thirdLegi~urcsddcdairw~sstion106.025,which~~ olTonse ofatmptod purchase

ofaoalcohoiicbevera=byPmirmr.SeeActs 1993,73dLeg..ch 934, $7 76. Arubscguent

violationofac&n 106.025ah isplnishablebyafineITWI~ fromSZ50 toSl,OOO (lhctirsbtimcfinerangeis s25 toS200). Ako. Bcv.code 5 106.025@), (c). cur - toyourfirst qocationappliesaswclltotbisstaMc.

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Although the maximum f&s do not eliminate the justice courts as potential forums, we still cannot determine the ultimate question of whether &se courts have jurisdiction ofprosecutions under the subject code sections until we consider your second question, which involves another aspect ofjustice court criminal jurisdiction. You ask whether the imposition ofan alcohol awareness course by ajustice court pursuant to code section 106.115 constitutes a “punishment” that would deprive the court ofjurisdiction by exceeding the wnstitutionsJ jurisdictional limitation to mi&.mermors “punishable” solely by fine, Tex. Const. art. V, 5 19.2 Section 106.115provides, inpertinent part:

(a) On the Grst wnviction of a minor of an offense unda Section 106.02,106.04, or 106.05 ofthis cod%the wur& in addition to dg a fine as provided by those sections, may require the defbndant to attend an alcohol awareness course approved by the Texas Commission on Alcohol and Drug Abuse or a similar alcohol awareness course approved bythe court

. . . (b) Ifthe conviction under Section 106.02,106.04, or 106.05 of this code is for a second or subsequent offense, the court shall require the defbndant to participate in an alcohol awareness course in addition to paying the fine assessed under that section

. . . . Your question assumes that the wnstitutional grant of ckninal jurisdiction of misdemetmors “punishable byhe only” includes offenses for which the court may impose nonpunitive sanctions, such as (we will assume for the sake of argument) alcohol awareness wurscs. For the following reasons we believe that the constitutional grant of jurisdiction includes only offenses the sole sanction for which is a fine and therefore that the justice wurts do not havejurisdiction of violations of sections 106.02, 106.04, and 106.053

atecowtiMionalpttwtatoofor~wawtjurisdiction isasfollows: htetiwoftkpwwcoortsshauhaveorigirutljurisdictionincriminat MtCISOf-EarapmisbablCbyfitlConly,CXClUSiVCjurisdidiOllin civilmsnor3whotathe~in oorlmmyistwohoodmddouamorl~and atchotherjmirdictionasmsyhcpmvidcdbylaw. 1usticcsofthepwwahallhc oxoaiciono&ri&pohlic.

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From the adoption of the constitution in 1876 until the amendment of the jurisdictional provision to its current language in 1985, section 19of article V provided in pertinent part as follows: “‘Justicesof the peaw shaghavejurisdictjon in crimmal matters of all cases where the penalty or 5e to be imposed by law may not be more than for two hundred dollars

. . . .” Ten. Const. art. V, 5 19historical notes. Although this provision lacked any limitation similarto the current one of“punishable by 5e only.” the old Texas Court ofAppeals in 1876read the limitation into the provision:

[Tlhe tiamers of our organic law intended only to w&r upon justices’ wurts..

.jurisdiction in cases where the penalty was by peamhy 5e alone, not to exceed the limit speci5d. Imprisonment in the wtmty jail cannot be estimated in dollars, nor can it be considered in any manner a pecuniary fine. It follows, therefore, in the opinion of this court, that whenever, in misdemeanors, ’ prisomnent may be assessed as an alternati~ or as a part of the i!ze to be imposed, justices’ courts have nojurisdiction to try. Of m this rule is not to be understood as applicable to, or interfering in any mamter with, the authority of such wurts to imprison for the non-payment of fine and costs, or, when necessary, to assert, protect, and en8orce their authority in cases where their jurisdiction properly obtains. Tuttk v.State, 1Tar. Ct. App. 364,366 (1876).
We believe the Texas Court of Appeals’ foregoing strict reading of the justice wurts’ former wnstitutional jurisdiction warmnts asbnilarstrictreadingofthecurrent provision in regard tojurisdiction of offenses for which there is a sanction in addition to, or inthe alternative to, a 5e, regardless ofwhether that sanction may be considered to be nonpunitive. We fbrther believe a strict reading of the wnstitutional jurisdiction also is good policy. Section 19 of article V delegates authority to the legislature to grant additional jurisdiction to thejustice wurts. Therefore, a strict reading will ensure that the legislature will act deliberately in granting additional jurisdiction to thejustice courts only in matters that are suited to the infomtaUty ofjustice wurt proceedings. Therefore, we conclude that section 19ofarticle Vofthe wnsdtution grantsjurisdiction tojustice wurts in crimid matters in which the only possible sanction is a 5e and, acwrdingly, that the justice courts do not havejurisdiction ofprosecutions under sections 106.02, 106.04, and 106.05 of the Alcoholic Beverage Code because those sections provide for the nor&e sanction of alcohol awareness education and because the legislature has not granted to the justice courtsjurisdiction ofprosecutions inwhich such a sanction maybe imposed.

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SUMMARY
Section 19 of article V of the Texas Constitution grants jurisdiction to justice courts in criminal matter5 in which the only possible sanction is a line. Therefore, thejustice courts do not have jurisdiction of prosecutions under sections 106.02, 106.04, and 106.05 of the Alcoholic Beverage Code because those sections provide for +e nonfine sanction of alcohol awareness education and because the legislature has not granted to the justice courts jurisdiction of prosecutions in which such a sanction may be imposed.

DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee Prq3ared byRick Gilpin Assistmt Attorney General

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