Office of tfje Qttornep'QiSeneral 

. &ate of ltCexae 

February 6,199s 

Mr. Doyne Bailey 

Administrator 

Texas Alcoholic Beverage Commission 

P.O. Box 13127 

Austin, Texas 7871 I-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 to justice courts original jurisdiction 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 Iimit the ckninal jurisdiction of justice 

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 106.05 do not exceed the justice courts’ jurisdiction. 

1Afirrt-timcviolati~daayottbaccodcsectionsisplnibhablcbyafineranging~mS2Sto 

szoo. see Alco. Bov. code $0 106.02@), .04(C), .05(c). 

WenotctbsttheSMnty-thirdLegi~urcsddcdairw~sstion106.025,which~~ 

olTonse of atmptod purchase of ao alcohoiic bevera= by P mirmr. See Acts 1993, 73d Leg.. ch 934, 

$7 76. A rubscguent violation of ac&n 106.025 ah is plnishable by a fine ITWI~ from SZ50 to Sl,OOO 

(lhc tirsbtimc fine range is s25 to S200). Ako. Bcv. code 5 106.025@), (c). cur - to your first 

qocationappliesaswclltotbisstaMc. 

p. 1697 
Mr. DoyneBailey - Page 2 @M-320) 

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 of prosecutions under the subject code sections until we consider your second 

question, which involves another aspect of justice court criminal jurisdiction. You ask 

whether the imposition of an alcohol awareness course by a justice court pursuant to code 

section 106.115 constitutes a “punishment” that would deprive the court of jurisdiction by 

exceeding the wnstitutionsJ jurisdictional limitation to mi&.mermors “punishable” solely 

by fine, Tex. Const. art. V, 5 19.2 Section 106.115 provides, in pertinent part: 

(a) On the Grst wnviction of a minor of an offense unda 

Section 106.02,106.04, or 106.05 of this 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 by the 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 by he 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 have jurisdiction 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. 

p. 1698 
Mr. Doyne Bailey - Page 3 @M-320) 

From the adoption of the constitution in 1876 until the amendment of the 

jurisdictional provision to its current language in 1985, section 19 of article V provided in 

pertinent part as follows: “‘Justices of the peaw shag have jurisdictjon 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 19 historical notes. Although this provision 

lacked any limitation similar to the current one of “punishable by 5e only.” the old Texas 

Court of Appeals in 1876 read 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!z e to be imposed, justices’ courts have no jurisdiction 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, 1 Tar. 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 to jurisdiction of offenses for which there is a sanction in addition to, 

or in the alternative to, a 5e, regardless of whether 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 the justice wurts. Therefore, a strict reading will ensure that the 

legislature will act deliberately in granting additional jurisdiction to the justice courts only 

in matters that are suited to the infomtaUty of justice wurt proceedings. Therefore, we 

conclude that section 19 of article V of the wnsdtution grants jurisdiction to justice wurts 

in crimid matters in which the only possible sanction is a 5e and, acwrdingly, that the 

justice 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 the nor&e 

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. 

p. 1699 
Mr. DoyneBailey - Page 4 @M-320) 

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, the justice 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 by Rick Gilpin 

Assistmt Attorney General 

p. 1700