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               E             NEY GENERAL
                            TEXAS



                      April 6, 1967


Representative Vernon J. Stewart      Opinion No. M-52
House of Representatives
Austin, Texas                         Re:   Construction of House Bill
                                            788 of the 60th Legislature
                                            relating to the trial of
                                            minors charged with the
                                            offense of driving while
                                            intoxicated under the pro-
                                            visions of Chapter 302, Acts
                                            of the 55th Legislature,
Dear Representative Stewart:                Regular Session, 1957.
          Your request for an opinion on the above subject matter
reads as follows:
          "The Committee on Juvenile Crime and '
     Delinquency met on April 3, 1967, and voted
     unanimously to request of your office an of-
     ficial OpiniOn on the following:
          "1. Concerning the attached copy of
     H.B. 788 by Stewart and Jamlson, does this
     bill carry a subpoena power wlth It as it
     is now printed?
          "2. Would It be necessary for this bill
     to carry a subpoena power with it in order
     to require the parents to appear in court, or
     would you suggest another method?
          "3. If this bill does carry, or is
     amended to carry the subpoena power, what
     would be the penalties if the parent did not
     appear in court, and was held In contempt?
          "Thank $0~ for your consideration of
     this matter.
          House Bill 788 of the 60th Legislature, as now printed,
reads as follows:
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Representative Vernon J. Stewart, page 2 (M-52)


                 ItA BILL TO BE ENTITLED
                         AN ACT
     relating to the trial of juvenile traffic of-
     fenders; amending Chapter 302, Acts of the 55th
     Legislature, Regular Session, 1957 (Article
     802e, Vernon's Texas Penal Code), by adding a
     new Section la to require the presence of the
     juvenlle and one or both parents or guardians
     In open court before the judge; and declaring
     an emergency.
     BE IT ENACTED By THE LEGISLATURE OF THE STATE OF TEXAS:
          "Section 1. Chapter 302, Acts of the 55th
     Legislature, Regular Session, 1957 (Article 802e,
     Vernon's Texas Penal Code), Is amended by adding
     a new Section la, reading as follows:
          "'Section la. No such minor may plead guilty
     to any offense described in Section 1 of this Act
     except In open court before the judge. No such
     minor shall be convicted of such an offense or fined
     as provided in this Act except in the presence offs,
     one or both parents or guardians having legal cus-
     tody of the minor. The court shall cause one or
     both parents or guardians to be summoned to appear
     In court and shall require one or both of them to
     be present during all proceedings in the case.
     However, the court may waive the requirement of
     the presence of parents or guardians in any case
     in which, after diligent effort, the court Is
     unable to locate them or to compel their presence.'
          'Sec. 2. The Importance of this legislation
     and the crowded condition of the calendars In
     both houses create an emergency and an imperative
     public necessity that the Constitutional Rule re-
     quiring bills to be read on three several days in
     each house,,besuspended, and this Rule is hereby
     suspended.
          It 1s noted that House Bill 788 of the 60th Legislature
Is an amendment to Chapter 302, Acts of the 55th Legislature,
Regular Session, 1957, an act making it a misdemeanor punishable
by fine for certain minors to drive or operate a motor vehicle whl.le
under the influence of intoxicating liquor, or in such way as to
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Representative Vernon J. Stewart, page 3 (M-52)


violate any traffic law of this state.
          In construing the provisions of Chapter 302, Acts of
the 55th Legislature, Regular Session, 1955, codified in Vernon's
as Article 802e, Vernon's Penal Code, it was held In Attorney Gen-
eral's Opinion WW-547 (1959):
             "The offenses created by Article 802e,
        Vernon's Penal Code, are a departure from the
        general policy for handling juvenile offenders
        and constitute exceptions to the foregoing
        language, and as to the offenses thus created,
        Article 2338-1, Vernon's Civil Statutes, will
        not apply.
             "It is to be noted that Section 4 of Article
        802e, of Vernon's Penal Code, supra, clearly pro-
        vides that statutes dealing with proceedings ln-
        volving unlawful conduct of minors shall not be
        repealed or affected. Nothing In Article 802e,
        Vernon's Penal Code, would prevent civil proceedings
        for correction of a minor In the juvenile court.
        The Act is merely 'cumulatj.ve'of, or In addition
        to, other statutes dealing with the conduct of
        minors contrary to the penal statutes, authorizing
        an additional procedure In the nature of a criminal
        action against such minor.
             "Therefore, it is the opinion of this office
        that since Article 802e, Vernon's Penal Code,
        creates an entirely new offense and further pro-
        vides that the juvenile court shall not have jurls-
        diction over the minor, then such minor who fails
        to make bond pending trial will be treated as adults
        and may be confined in jail.
          The amendment contained In House Bill 788 of the 60th
Legislature prohibits a plea of guilty by a minor except in open
court before a judge. It requires the presence of one or both
parents or guardians having legal custody of the minor at the time
of conviction unless the court is unable to locate such parents or
guuu;ians or to compel their presence after diligent effort by the
     . It specifically authorizes the court to summon the parents
or guardians and directs the court to require one or both parents
or guardians to be present during all proceedings In the case. There-
fore, the court is not only authorized to subpoena the parents or
guardians of a minor charged with an offense under Article 802e of
the Penal Code, but House Bill 788 makes it the mandatory duty of the
court to require the presence of such parents or guardia2s during all
proceedings in the case, and only after "diligent effort by the
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Representative Vernon J. Stewart, page 4 (M-52)


court is the court permitted to waive the requirement of the
presence of parents or guardians In any case Involving a violation
of Chapter 302, Acts of the 55th Legislature, Regular Session,
1957.
          You are therefore advised in answer to your questions
that under the present wording of House Bill 788, if enacted, a
court will have sufficient power to require the presence of parents
or guardians in any case in which a minor Is charged with a viola-
tion of the provisions of Article 802e, Vernon's Penal Code. A
violation of any order of the court In this regard will be punlsh-
able by contempt proceedings, In the same manner and to the extent
as contempt proceedings in the District and other courts.
                     SUMMARY
         Under the present wording of House Bill 788
    of the 60th Legislature, If enacted, it will be
    the mandatory duty of the court to subpoena one or
    both parents or guardians of a minor charged with
    a violation of Article 802e, Vernon's Penal Code,
    and require the presence of one or both parents or
    guardians during all proceedings in the case, and
    the court may waive such requirement only In the
    event that the court, after diligent effort, is
    unable to locate them or t compel their presence.
                            /7



                                     General of Texas
Prepared by John Reeves        "
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Roger Tyler
Pat Bailey
John Banks
William J. Craig
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
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