Hon. 0. N. Humphreys,    Jr.,               Opinion   No.    M-327
Administrator
Texas Liquor Control Board                  Re:     May a juvenile be prose-
Sam Houston State Office Bldg. ,                    cuted for violation of
Austin,  Texas 78711                                Article 666-17(14), Vernon’s
                                                    Penal Code, and related
Dear   Mr.   H&nphreys:                             questions?
              :  .
        You request an opinion of this office whether a juvenile may
be prosecuted   for violation of Article 666-17(14), Vernon’s    Penal
Code and if so, whether such juvenile may be incarcerated         for failure
to pay his fine upon conviction,    in view of amendments     to Article
2338-1,  Vernon’s   Civil Statutes, by H. B. No. 780. Acts 60th Legis-
lature, R.S. 1967, ch. 475, p. 1083.

         Article 666-17.   Section 14(a) makes certain purchases,
possession    or cofisumption of alcoholic beverages   by persons pnder
21 years of age a misdemeanor       criminal offense  and provides pun-
ishment by fine froni $10. to $100.

         As stated in your letter,   this office has previously held in
Att.orney Genera1 Opinion No. WW-1171 (1961) that the above section
of rhe Texas Liquor Cont:rol Act is an exception to Sections 12 and
13 of Article 2338-1,   and that such persons under 21 years of age
are susceptible   to fines for violation thereof.

         As further   stated   in your letter,    Attorney   General   Opinion
No. WW-1338     (1962) holds that all persons~convicted     under said
Section 14(a) who are unable to pay the fine assessed        must be
confined in jail to lay out the fine as required by law or until such
fine has been paid, provided they are segregated        from adult
offenders.

       Section 3 of Article       233811. as amended,   defines a “child”
as any female person over        the age of 10 years and under the age



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Hon.   0.   N. Humphreys,      Jr.,   Page   2    (M-327)



of   18 years   and any male    person    over the age of 10 years   and under
the age of 17 years.

         Section 1 of Article 30, Vernon’s   Penal Code, prohibits the
conviction of a persons for any offense,   except perjury,    committed
before he was 15 years of age, therefore     such “children”    can be
held responsible   only through proceedings    in the juvenile court, if
at all.  Attorney General Opinion’No.     M-163 (1967).

         Under Section 5(a) of Article 2338-1,    the juvenile court has
exclusive   original jurisdiction  in proceedings  governing any “delin-
quent child, I’but the juvenile court may waive jurisdiction     to the
appropriate    district court or criminal district court as specified
in Section 6 thereof.

          If a “child” does not violate a felony penal law or a mis-
demeanor law punishable by confinement         in jail, he is not a “delin-
quent child” under the terms of Section 3 of Article 2338-l unless
he habitually violates misdemeanor       laws punishable by fine only,
or penal ordinances,     or other proscribed    deportment,   conduct or
activity.

         In view of the above, a juvenile court. would not have juris-
diction of .a child for the “one-time”   purchase,   possession   or
consumption    of an alcoholic beverage   as described   in Section
14(a) because such a person is not defined as a “delinquent child. ”
Obviously then, a juvenile court could not waive jurisdiction        that
it does.not have, nor could it assume jurisdiction      of a case trans-
ferr,ed to it, under such circumstances,     as provided in Section 12
of Article 2338-l.

          It is our opinion that a female person 15 years of age or
over, but under the age of 18 years,        or a male person 15 years
of age or over, but under the age of 17 years,          who violates the
provisions     of Section 14(a) of Article 666-17,    other than habitually,
is not within the jurisdiction     of the juvenile court and may be pro-
secuted for such violation in an appropriate         criminal  court having
jurisdiction    of such offense.    Upon conviction thereof he, or she,
may be incarcerated       until such fine is paid or otherwise      satisfied
according to law; however,        such person shall be, segregated       from
adult offenders under the provisions        of Article 2338-l(17).


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Hon.   0.    N. Humphreys.      Jr..   Page   3   (M-327)




         Whether such a person is a “one-time”     offender or is an
habitual offender such as would place him or her under the juris-
diction of the juvenile court is a question of fact which could be
ascertained   by the arresting officer,  and/or the court after con-
sultation     or conference   with the judge ofthe    juvenile   court.

                               SUMMARY

                    A female person 15 years of age or over, but
            under 18 years of age, or a male person 15 years
            of age or over, but under the age of 17 years.        who
            violates the provisions    of Section 14(a) of Article
            666-17,   Vernon’s   Penal Code, other than habitually.
            may be prosecuted     for such violation and upon con-
            viction thereof he, or she, may be incarcerated          until
            such fine is paid or otherwise      satisfied according to
            law; however,     such confined person shall be segregated
            from adult offenders    under the provisions      of Article
            2338-1,   Section 17, Vernon’s    Civil Statutes.    Whether
            such a person is a none-time”       offender or is an
            habitual offender is a question of fact.




                                                                DC.   MARTIN
                                                            ey General of Texas

Prepared       by Monroe Clayton
Assistant      Attorney General

APPROVED:

OPINION COMMITTEE
Kerns Taylor,  Chairman
Bob Lattimore
Tom Bullington
Lonny Zwiener
John Reeves

 STAFF LEGAL ASSISTANT
 Hawthorne Phillips
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