  FVILLFVILSON
AITO-        (jl-IIAL
                            December 14, 1961


        Honorable Henry Wade                    Opinion No. WW-1220
        District Attorney. Dallas County
        Records Bu$ldlng-7'                     Re: Constructionof
        Dallas 2, Texas                             Art. 802e, V.P.C.
                                                    concerning con-
        Dear Mr. Wade:,                             viction of minors.
            You request an opinion of this office as follows:
                 "Whether or not a juvenile convicted under
            802d Texas Penal Code of Driving While~Intoxl-
            cated and fined according to the provisions of
            this article can be jailed for failure to pay
            that fine when he has failed to pay It after
            his seventeenthbirthda.y '*
             Since Article 802d Texas Penal Code has been repealed
        by lmpllcatlon (AttorneyGeneral's Opinion WW-182, July 11,
        1957) and has been supersededby Article 802e V.P.C. we shall
        treat your request as though you had inquired about the latter
        article. You want to know whether a male who has been con-
        victed thereunderwhile under seventeen years of age can be
        jailed In default of fine, after he becomes seventeen.
             The Juvenile Act Is Article 2338-l,,V.C.S. However,
        Section 4 of Art. 802e, provides that the offenses committed
        under this act shall be under the jurisdictionof "the Courts
        regularly empowered to try mlsdemeanorscarrylngthe penalty
        herein affixed, and shall not be.under the jurisdictionof the
        Juvenile Courts."
             Section 1 of Art. 802e, V.P.C. Is as follows:
                  "Section 1. Any male minor who has passed his
             14th birthday but has not reached his 17th birthday,
             and any female minor who has assed her 14th blrth-
             day but has not reached her 1fs
                                           th birthday, and who
             drives or operates an automobile or any other motor
             vehicle on any public road or highway In this state
Hon. Henry Wade, Page 2   (WW-1220)


    or upon any street or alley within the limits of any
    city, town or village, or upon any beach as defined
    In Chapter 430, Acts of the 5lst Legislature,1949,
    while under the influence of Intoxicatingliquor, or
    who drives or operates an automobile or any other
    motor vehicle in such way as to violate any traffic
    law of this state, shall be guilty of a misdemeanor
    and shall be punished by a fine of not more than
    One Hundred Dollars ($100.00). As used In this
    section, the term *any traffic law of this state'
    shall include the following statutes, as heretofore
    or hereafter'amended;

          "Chapter 42, Acts of the 41st Le lslature,
     Second Called Session, 1929 (Article 827a, Vernon's
     Texas Penal Code), except Section ga thereof; Chapter
     421, Acts of the 50th Legislature,Regular Session
     1947 (Article 6701d, Vernon's Texas Civil StatutesI;
     Chapter 430 Acts of the .51stLegislature,Regular
     Session, 1949, (Article.827f Vernon's Texas Penal
     Code);'and Articles 795'and~bOl,Texas Penal Code of
     1925.
     Section 2 forbids the jailing of the convictedminor
under Sec. 1, and limits the Court's power to suspending
the driver's license pending payment of the fine. The
language of Section 2 is:
          "Sec. 2. No such minor, after convictionor
     plea of guilty and Imposition of fine, shall be
     committed to any jaiS In default of payment of the
     fine Imposed, but the court Imposing such fine shall
     have power to suspend and take possessionof such
     minor's driving license and retain the same until
     such fine has been paid.','
     The expression, "no such minor," doubtlessrefers to the
specific Individual who has or may be convicted. The expression,
"after conviction or plea of guilty and impositionof fine",
Is not limited as to time. Please note what It does not say.
It does not say "after conviction and until he becomes seventeen
(17) years of age." Since the statute forbids a commitment to
jail "after conviction"It would be engrafting something thereon
which the Legislature simply did not put there to hold that said
offender could be jailed after becoming seventeen. Under such
Hon. Henry Wade, Page 3   (W'W:XZO).


reasoning he could be jailed thereafter at 18, 19, 30 or 50
years of age. Such a holding would do violence to the
statute; such statute means just what it says, to wit, that
"no such minor after conviction.     shall be .commlttedto any
jail In default of payment of the'fine."
        The question has been raised that such a holding would
render the statute partially meaningless, In that those
minors not having driver's licenses would be permitted to
go Scot-free. This ls.unsound reasoning and is not true. The
answer to that objection Is that a minor who has no driver's
license    should never be prosecuted under Section 1 In the
first place but under Section 3, which carries the same penalty.
Section 3 Is as follows:
          "Sec. 3. If any such minor shall drive any
     motor vehicle upon any public road or highway in
    this State  or upon any Street or alley within the
    limits of any corporate city, town or clllage, or
    upon any beach as defined In Chapter 430, Acts of
    the 5lst Legislature, 1949, without having a valid
    driver's license authorizing such driktn& such
    minor shall be guilty of a misdemeanor and shall be
    fined as set out In Section 1 hereof."
     InformationIs readily available as to whether any given
person has a driver's license. This should be ascertainedIn
advance and if the suspect Is found to have none, a con-
viction under Section 3 could be secured. Please note that
there are no strings attached to a convictionunder Section 3
and the convicted minor could be remanded to jail If the fine
Is not paid.
     It Is our opinion, therefore, and we so hold, that a
male under 17 years and a female under 18 years cannot at anytime
thereafter be remanded to jail In default of payment of a fine
assessed under Section 1 of Article ,802e,V.P.C. but either
may be sent to jail forthwith In default o.fa fine assessed
under Section 3 of said Artlclk,
                          SUMMARY
          A jcvenlle male unaer seventeen and a female under
     eighteen cannot either before or after the 17th or 18th
Hon. Henry Wade, Page 4   (WW-1220)


     birthday, respectively,be sent to ja3.1In default
     of the payment of a fine assessed under Article 802e,
     Section 1, V.P.C., but may be committed to jail in
     default of a fine assessed under Section 3 thereof.
                                   Very truly yours,

                                      WILL WILSON
                                      Attorney General of Texas




WRS:lp
APPRm:
OPINION COMMITTEE:
W; V. Geppert, Chairman


J. Arthur Sandlln
Mary Kate Wall
REVIEWEDFORTHB ATTORNEYGENERAL
BY:
    Leonard Passmore
