                                    ATTORNEY        GENERAL OF            TEXAS
                                             GREG        ABBOTT




                                              February 24,2004



The Honorable Jeri Yenne                                      Opinion No. GA-01 57
Brazoria County Criminal District Attorney
County Courthouse                                            Re: Whether the offense of “racing on the
111 East Locust, Suite 408A                                  highway” under section 545.420 of the
Angleton, Texas 775 15                                        Transportation Code, when committed by a
                                                             juvenile, is “delinquent conduct,” “conduct
                                                              indicating a need for supervision,” or a “traffic
                                                              offense,” as those terms are defined by the
                                                             Family Code (RQ-0105-GA)

Dear Ms. Yenne:

        You ask how the offense of “racing on the highway,” section 545.420 of the Transportation
Code, should be classified under the Family Code, and whether juvenile courts or the justice and
municipal courts have jurisdiction when a juvenile is charged with such an offense.’

I.       RelevantLaw

         The Juvenile Justice Code (the “JJC”), title 3 of the Family Code, provides for one or more
juvenile courts for each county to be “presided over by a judge who has a sympathetic understanding
 of the problems of child welfare.” TEX. FAM. CODE ANN. 8 51.04(a)-(h) (Vernon 2002); see
generally id. 8 8 5 1 .Ol-6 1.107 (Vernon 2002 & Supp. 2004) (the JJC). Generally, the juvenile court
has exclusive jurisdiction over “the proceedings in all cases involving the delinquent conduct or
 conduct indicating a need for supervision engaged in by a person who was a child within the
meaning of [the JJC] at the time the person engaged in the conduct.” Id. 8 5 1.04(a) (Vernon 2002).
A “child” under the JJC is generally defined as a person ten years old or older but less than seventeen
years old. Id. 5 5 1.02(2) (Vernon Supp. 2004). Delinquent conduct includes violations, other than
traffic offenses, of state or federal penal laws punishable by imprisonment or confinement in jail.
Id. 8 5 l.O3(a)( 1)” Conduct indicating a need for supervision includes conduct, other than traffic



         ‘See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney,   to the Texas Attorney
General (Sept. 16, 2003) (on file with Opinion Committee) [hereinafter Request Letter].

        *Delinquent   conduct is:

                                                                                                      (continued.. .)
The Honorable Jeri Yenne                  - Page 2              (GA-0157)




offenses, that is a state-law misdemeanor punishable by fine only and penal offenses of political
subdivisions. See id. 8 5 1.03(b)(l).” Consequently, juvenile courts have exclusive jurisdiction over
penal violations by a child, from misdemeanors to felonies, other than traffic offenses.

        The JJC defines traffic offenses as including penal violations cognizable under chapter 729
of the Transportation Code, with certain enumerated exceptions. See id. 8 5 1.02( 16).4 In particular,
section 729.001 of the Transportation Code provides that a person “younger than 17 years of age
commits an offense if the person operates a motor vehicle on a public road or highway, a street or
alley in a municipality, or a public beach in violation of any traffic law of this state,” with certain



          *(...continued)
                     (1) conduct, other than a traffic offense, that violates a penal law of this state or of the United
          States punishable by imprisonment or by confinement in jail[.]

TEX. FAM. CODE ANN. 9 5 1,03(a)( 1) (Vernon            Supp. 2004).

          3Conduct indicating       a need for supervision    is:

                       (1) subject to Subsection    (f), conduct, other than a traffic offense, that violates:

                            (A) the penal laws of this state of the grade of misdemeanor        that are punishable    bY
                       fine only; or

                            (B) the penal ordinances     of any political subdivision   of this state[.]

Id. 9 51.03(b).

          4“Traffic offense” means:

                       (A) a violation    of a penal statute cognizable   under Chapter 729, Transportation         Code,
                  except for:

                             (i) conduct constituting an offense under Section 521.457,          Transportation     Code
                       [driving with an invalid license];

                            (ii) conduct constituting an offense under Section 550.021, Transportation              Code
                       [accident involving personal injury or death];

                            (iii) conduct constituting an offense punishable as a Class B misdemeanor               under
                       Section 550.022, Transportation Code [accident involving vehicle damage];

                            (iv) conduct constituting an offense punishable as a Class B misdemeanor under
                       Section 550.024, Transportation Code [duty on striking unattended vehicle]; or

                            (v) conduct constituting an offense punishable as a Class B misdemeanor under
                       Section 550.025, Transportation Code [duty on striking fixture or landscape]; or

                        (B) a violation   of a motor vehicle traffic ordinance   of an incorporated        city or town in this
                  state.

Id. 5 51.02(16).
The Honorable Jeri Yenne           - Page 3             (GA-0157)




enumerated exceptions. TEX. TRANSP. CODE ANN. 0 729.001(a) (Vernon Supp. 2004).5 An offense
under section 729.001 is punishable by fine or other sanction, other than confinement or
imprisonment, as the applicable traffic law provides. See id. 5 729.001(c).

        Section 545.420 of the Transportation            Code proscribes certain conduct involving racing on
a highway:

        (a) A person may not participate in any manner in:

                 (1) a race;
                 (2) a vehicle speed competition          or contest;

                 (3) a drag race or acceleration contest;

                 (4) a test of physical endurance of the operator of a vehicle; or

                 (5) in connection with a drag race, an exhibition                    of vehicle     speed or
        acceleration or to make a vehicle speed record.

        (b) In this section:




        ‘Section 729.001(a)    provides:

              (a) A person who is younger than 17 years of age commits an offense if the person operates a
        motor vehicle on a public road or highway, a street or alley in a municipality, or a public beach in
        violation of any traffic law of this state, including:

                 (1) Chapter 502, other than Section 502.282 [repealed] or 502.412 [operating a vehicle at a
        weight in excess of the registration application];

                 (2) Chapter 52 1, other than an offense under Section 52 1.457 [driving with invalid license];

                 (3) Subtitle C, other than an offense punishable by imprisonment or by confinement in jail
        under Section 550.021 [accident involving personal injury or death], 550.022 [accident involving
        vehicle damage if Class B misdemeanor], 550.024 [duty on striking unattended vehicle if Class B
        misdemeanor], or 550.025 [duty on striking fixture or landscaping if Class B misdemeanor];

                 (4) Chapter 601;

                 (5) Chapter 62 1;

                 (6) Chapter 661; and

                 (7) Chapter 68 1.

TEX. TRANSP. CODE ANN. 0 729.001(a)        (Vernon Supp. 2004).
The Honorable Jeri Yenne - Page 4              (GA-0157)




              (1) “Drag race” means the operation of:

                       (A) two or more vehicles fi-om a point side by side at
              accelerating speeds in a competitive attempt to outdistance each
              other; or

                       (B) one or more vehicles over a common selected course,
              from the same place to the same place, for the purpose of comparing
              the relative speeds or power of acceleration of the vehicle or vehicles
              in a specified distance or time.

              (2) “Race” means the use of one or more vehicles in an attempt to:

                      (A) outgain or outdistance   another vehicle or prevent another
              vehicle from passing;

                       (B) arrive at a given destination    ahead of another vehicle or
              vehicles; or

                      (C) test the physical stamina or endurance of an operator over
              a long-distance driving route.




      (d) Except as provided by Subsections      (e)-(h), an offense under Subsection     (a) is a
      Class B misdemeanor.

      (e) An offense under Subsection     (a) is a Class A misdemeanor    if it is shown on the
      tial of the offense that:

               (1) the person has previously been convicted one time of an offense under that
      subsection; or

              (2) the person, at the time of the offense:

                      (A) was operating the vehicle while intoxicated, as defined by
              Section 49.01, Penal Code; or

                      (B) was in possession     of an open container,    as defined by
              Section 49.03 1, Penal Code.

      (f) An offense under Subsection (a) is a state jail felony if it is shown on the trial of
      the offense that the person has previously been convicted two times of an offense
      under that subsection.
The Honorable Jeri Yenne     - Page 5           (GA-01 57)




       (g) An offense under Subsection (a) is a felony of the third degree if it is shown on
       the trial of the offense that as a result of the offense, an individual suffered bodily
       injury.

       (h) An offense under Subsection (a) is a felony of the second degree if it is shown on
       the trial of the offense that as a result of the offense, an individual suffered serious
       bodily injury or death.

Id. 0 545.420. Previously, the statute prohibited such conduct but did not prescribe a penal sanction.
See Act ofMay 1,1995,74thLeg.,       R.S., ch. 165, § 1,1995 Tex. Gen. Laws 1025,1025-1832.      Since
September 1,2003, however, a violation of section 545.420 is a penal offense subject to punishment
ranging from a Class B misdemeanor to a second degree felony, depending on a particular violation’s
circumstances. See TEX. TRANSP. CODE ANN. 9 545.420(d)-(h) (Vernon Supp. 2004); Act of May
30,2003,78th   Leg., RX, ch. 535, $3 l-2,2003 Tex. Gen. Laws 1825, 1825-26.

        In light of the 2003 amendment   to section 545.420, you ask:

        1. Is a violation of Section 545.420 of the Texas Transportation Code a “traffic
        offense” as defined in Section 5 1.02( 16) of the Texas Family Code?

        2. Is a violation of Section 545.420 of the Texas Transportation Code “delinquent
        conduct” as defined in Section 5 1.03 of the Texas Family Code?

        3. Is a violation of Section 545.420 of the Texas Transportation Code “conduct
        indicating a need for supervision” as defined in Section 5 1.03 of the Texas Family
        Code?

       4. Is a violation of Section 545.420 of the Texas Transportation      Code referred to
       juvenile court, a justice of the peace court, or a municipal court?

Request Letter, supra note 1, at 2.

II.     Analvsis

         We begin by examining the plain and common meaning of the statutes. Courts generally
interpret an unambiguous statute according to its plain language unless a literal construction would
lead to absurd results. See City of San Antonio v. City ofBoerne, 111 S.W.3d 22,25 (Tex. 2003) (“If
a statute’s meaning is unambiguous, we generally interpret the statute according to its plain
meaning.“); Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (citations
omitted) (unambiguous statutes “should not be construed by a court to mean something other than
the plain words say unless there is an obvious error such as a typographical one that resulted in the
omission of a word, or application of the literal language of a legislative enactment would produce
an absurd result”); Wolfe v. State, 120 S.W.3d 368, 370 (Tex. Crim. App. 2003) (“Whenever
The Honorable Jeri Yenne - Page 6                     (GA-0157)




possible, this Court interprets a statute pursuant to its ‘plain [textual] meaning’ and will not consult
outside sources unless the statute is ambiguous or unless its literal translation will result in ‘absurd
consequences.“‘).

          The JJC expressly defines delinquent conduct and conduct indicating a need for supervision
to exclude traffic offenses. See TEX. FAM. CODEANN. $5 5 l.O3(a)( 1), (b)( 1) (Vernon Supp. 2004).
A traffic offense under the JJC is an offense cognizable under chapter 729 of the Transportation
Code. Id. 0 5 1.02( 16). The offenses cognizable under section 729.001 of the Transportation Code
include operating a vehicle on a public highway in “violation of any traffic law of this state,” and
specifically include subtitle C of the Transportation           Code.   TEX. TRANSP. CODE ANN. fj
729.001(a)(3) (Vernon Supp. 2004). Section 545.420 is located in subtitle C of the Transportation
Code. Section 545.420 is not among the various exceptions to the definition of a traffic offense in
the Family Code nor to the offenses cognizable in chapter 729 of the Transportation Code. See TEX.
FAM. CODE ANN. 6 5 1.02(16)(A)(i)-(v)          (V emon Supp. 2004); TEX. TRANSP. CODE ANN. 9
729.OOl(a)( l)-(3) (V emon Supp. 2004). Consequently, according to the plain language of the JJC
and the Transportation Code, a violation of section 545.420 by a child is a traffic offense. As such,
a violation of section 545.420 by a child is neither delinquent conduct nor conduct indicating a need
for supervision as those terms are defined in the Family Code. And because a violation of section
 545.420 is a traffic offense, proceedings for its violation are not within the juvenile court’s
jurisdiction.     See TEX. FAM. CODE ANN. $5 51.04(a) (Vernon 2002) (defining juvenile court
jurisdiction in terms of delinquent conduct and conduct indicating a need for supervision),
 5 l.O3(a)( 1) (Vernon Supp. 2004) (excluding traffic offenses from definition of delinquent conduct),
 5 l.O3(b)( 1) (excluding traffic offenses from definition of conduct indicating a need for supervision).

        Justice courts and municipal courts have jurisdiction over criminal violations punishable by
fine only or by fine and a statutory sanction other than confinement or imprisonment.       See TEX.
CODE CRIM. PROC. ANN. arts. 4.11, 4.14(b)(l), (c) (V emon Supp. 2004). A violation of section
729.001 is punishable by fine or sanction other than confinement or imprisonment.           See TEX.
TRANSP. CODE ANN. 5 729.001(c) (Vernon Supp. 2004).             Accordingly, a violation of section
545.420 of the Transportation Code, which violates section 729.001 when committed by a child,
would be within the jurisdiction of justice courts and municipal courts.

         The Texas Juvenile Probation Commission (the “Commission”) has tendered a brief in which
it takes the position that the offense of racing on the highway should be classified as delinquent
conduct within the jurisdiction of the juvenile court and not as a traffic offense! The Commission
acknowledges that the “letter of the law” is contrary to its position.7 It notes, however, that the
legislature in 2003 excepted two other penal offenses punishable by confinement in jail from the




        ??ee Letter Brief from Pierre T. Williams, Staff Attorney, Texas Juvenile Probation Commission, to Honorable
Greg Abbott, Texas Attorney General (Nov. 6,2003) (on file with Opinion Committee) [hereinafter Commission Briefl.

         ‘Id. at 2.
The Honorable Jeri Yenne - Page 7                     (GA-0157)




definition of a “traffic offense” in Family Code section 5 1.02(l).” The Commission contends that
when the legislature categorized racing on the highway as an offense ranging from a Class B
misdemeanor to a second degree felony, it never intended that justice courts would have jurisdiction
of the offense when committed by a child. See Commission Brief, supra note 6, at 3. Furthermore,
the Commission suggests that classifying racing on the highway as a traffic offense would be
contrary to the spirit of juvenile justice theory reflected in the Family Code that “offenses which
carry a penalty of confinement in jail or imprisonment not be classified as traffic offenses but as
delinquent conduct under the jurisdiction of the juvenile court.” Id.

         However, the plain language of the statutes classifies the offense of racing on the highway
under Transportation Code section 545.420 as a traffic offense. We cannot construe the offense as
conduct other than a traffic offense without rewriting the statutes. The legislature’s failure to
exclude section 545.420 of the Transportation Code from offenses cognizable under section 729.00 1
could have been an oversight or deliberate; the legislative history does not reveal an obvious error
that would permit a contrary construction. Generally, courts are careful to avoid rewriting a statute
when attempting to construe it. See Campbell v. State, 49 S.W.3d 874,878 (Tex. Crim. App. 2001)
(holding that if claimed omission “was in fact an oversight in the statute, it is the business of the
legislature, rather than this court, to correct it”); Fleming Foods, 6 S.W.3d at 284 (where codified
statute is unambiguous, plain meaning rule applies even if codification is inconsistent with its
statutory predecessor).

         Moreover, construing section 729.001 of the Transportation Code as including section
545.420 does not lead to absurd results. Before 1999, a violation of section 729.001 was expressly
punished as a Class C misdemeanor, regardless of the punishment an adult might receive for
violating the underlying offense.’ In 1999, the legislature amended section 729.001(c) to provide
that a cognizable offense committed by a child is “punishable by the fine or other sanction, other
than confinement or imprisonment, authorized by statute for violation of the [listed] traffic law . .
. that is the basis of the prosecution under this section.” TEX. TRANSP. CODE ANN. 8 729.001(c)
(Vernon Supp. 2004).” In other words, after 1999, a violation of section 729.001(c) is not
necessarily a Class C misdemeanor; rather, punishment corresponds to the punishment provided for
the underlying offense other than confinement or imprisonment.            Although the legislature has
generally excluded more serious violations from offenses cognizable under 729.001 of the
Transportation Code and the definition of a traffic offense under 5 1.02( 16) of the Family Code, it
has not done so uniformly. See, e.g., id. §§ 545.066(c)(1)-(2) (o ff ense of passing a school bus ranges
from misdemeanor to state jail felony), 548.603(d) (Vernon 1999) (offense involving fictitious or
counterfeit inspection sticker or insurance document ranges from Class B misdemeanor to second


          ‘Id.; see also Act of June 2,2003,78th Leg., R.S., ch. 283,s 1,2003 Tex. Gen. Laws 1221, 1221 (excepting
Transportation Code sections 52 1.457, 550.025 from the Family Code definition of a traffic offense).

         ‘Act of May 1, 1995,74th Leg., R.S., ch. 165,s 1,1995 Tex. Gen. Laws 1025, 1025-1832, amended by Act
of May 8,1997,75th    Leg., R.S., ch. 165,s 30.167,1997 Tex. Gen. Laws 327,683, amended by Act of May 23,1997,
75th Leg., R.S., ch. 822, 6 1, 1997 Tex. Gen. Laws 2657,2657, amended by Act of June 2, 1997,75th Leg., R.S., ch.
1086,s 40, 1997 Tex. Gen. Laws 4179,4193-94.

        “Act of May 27, 1999, 76th Leg., R.S., ch. 1477, $ 36, 1999 Tex. Gen. Laws 5067, 5090.
The Honorable Jeri Yenne     - Page 8            (GA-0157)




degree felony), 601.371(d) (Vernon Supp. 2004) (operation of motor vehicle in violation of
suspension).   Consequently,  we cannot conclude that construing the Family Code and the
Transportation Code as written produces an absurd result.

         Finally, we observe that conduct which violates section 545.420, in particular the factors that
aggravate punishment to a second or third degree felony, may also violate a section of the
Transportation Code that is excluded from the definition of a traffic offense in the Family Code or
the offenses cognizable in chapter 729 of the Transportation Code. Compare TEX. TRANSP. CODE
ANN. tj 545.420(e)(2), (g)-(h) (V emon Supp. 2004) (offense of racing on the highway involving
alcohol or personal injury or death), with id. $5 550.021 (Vernon 1999) (offense of causing an
accident involving personal injury or death), 550.022 (offense of accident involving vehicle damage
if Class B misdemeanor).        See also id. 8 729.001(a) (Vernon Supp. 2004) (excluding sections
550.021 and 550.022 from offenses cognizable under chapter 729); TEX. FAM. CODE ANN. $0
5 1,03(a)(3)-(4) (V emon Supp. 2004) (defining delinquent conduct as including alcohol-related
driving offenses), 5 1.02( 16)(A)(ii) (excluding accidents involving personal injury or death from the
definition of traffic offense). A charge that a child has violated a penal provision excluded from the
definition of a traffic offense would be within the exclusive jurisdiction of the juvenile court. See
TEX. FAM. CODE ANN. 8 5 1.04(a) (Vernon 2002).
The Honorable Jeri Yenne    - Page 9           (GA-0157)




                                       SUMMARY

                         Operation of a vehicle on a highway in violation of section
                545.420 of the Transportation Code - “racing on the highway” by a
               person younger than seventeen years of age - is a violation of
                section 729.001 of the Transportation Code, and under the Family
                Code is a traffic offense rather than delinquent conduct or conduct
                indicating a need for supervision within the jurisdiction of the
               juvenile court.      A violation of section 729.001 is within the
               jurisdiction of justice and municipal courts.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
