                                           June 5, 1974



The Honorable   Emory C.          Walton                  Opinion   No.   H-   320
Criminal Dirtrict Attorney
P. 0. Box 527                                             Re:   Prorecution    of r+?r~q
Eaetknd,  Texar 76440                                           for por~ersion    of aa
                                                                alcoholic   beverqq
Dear   Mr.    Walton:

      You have asked two quertione     concerning          the prorecution      of minorr
and have lupplfed the following factr:

                       “On October      16, 1973, a 16-year-old   male went
                into a liquor ltore and plrchared       beer and wine for,
                and at the requeet of, four other minor’boyr        and girls.
                ranging frgm .I2 to IS year.8 of age.      After the purchare
                by~tbe 16ryear-old      bby, the adult operator of the liquor
              . store  delivered    the  purchared~beer   and wine to the car
                ~ontsining the four minora (agee 12 to lS.yeare);        then,
                the 16-year-old     boy got into hir car and Left and the four
                otheiminorr      left’in theii cri with the ‘beer and w-he,
                after which thq four minorr        were immediately    appre-
                hended.     The 16-year-old     male did not misrepresent      hir
                age ae being.18,      but simply said that he had no identifi-
                cation to prove his age to the liquor store operator.          The
                adult operator     of the liquor ltore wae filed upon and en-
                 tered a ‘guilty’ plea to making alcoholic      beverage8   avail-
                able tb the laid four minor male and female children.
                 No chargem have been filed against the five minore,          and
                 the rn+tor   ia pending. ”

       Your    quortione   aro:

                “1.     Whsther  or not the four minor childron            (one girl,
                        rge 12, one girl, ago 14, and two boya.           age 151 can




                                           ,p.   1477
. .




           The Honorable          Emory   C.   Walton,     page   2    (H-320)




                                    be prosecuted  for the alleged   one-time   offense
                                    of ‘Minor in Poeeeeaion    of Alcoholic   Beverage’?

                            “2.     Whethir   or not the 16-year-old    boy can be pro-
                                    #ecuted for the alleged   one-time    offense of ‘Making
                                    Alcoholic  Beverage   Available   to Minors’?”

                   The relevant   statute is Article   666-17, $ 14(a) and (b), Vernon’s Teqe
           Penal Auxiliary     LAWS [codified at the time of the alleged offenre PL Ariicle
           666-17,   iI4(a)  and (b); Vernon’,    Teur    Penal Code] which provider:

                                    “(14)(a)It lhall be unlawful   for any perron uuder
                            the age of twenty-ono    (2l) year& to purchase       any alcoholic
                            beverage,   . . . .  It lhrll  further    be unlawful    for any
                            porron tier    the age Of twenty-one       (21) year* to porrerr.
                            . . . or to consume any alcoholic        beverage.     . . .

                                   “(b) It lball be unlrarful jo pprchaee an alcoholic
                            beverage    for or give, or knowingly make available,     an
                            alcoholic   bovdrago   to a porron under the ago of twenty-
                            on0 (24 yoarr.       . . .I’

                  Article   5923b, Vornon’e   Toue    Civil Strtutee,   hae the effect of euboti-
           tuting eighteen years of age for the articlc’e      reference0   to twenty-one y&Ts
           of ago.   Violatfon  ir punirhable  by fine only.    Attorney General     Opinion H-82
           ( 1973).

                   At the time of the alleged  offenea , criminal   prosecutions of young per-
           l~ewere      governed  by Actr 1973, 63rd Leg.,     ch 544. p. 1484. 52 (formerly
           Article   30, Vernon’r   Texas Penal Code, and now found in substance at $8.07.
           Vernon’m Toxaa Penal Code).        That etatute providld    in pert:

      ..                          “(a) A person may not be prosecuted  for or convicted
                            for any offenee that he committed when younger than 15
                            years of age, except:

                                    “(1) porjury,    when it appear,    by proof that he had
                                    iufficient  discretion    to underetand  the nature end
                                    obligation    of an oeth;




                                                           p.   1478
 The Honorable        ‘Emory      C.   Walton,   page   3    (H-320)




                        “(2) a violation        of a penal statute cognizable
                        under Chapter          302, Actr of the 55th Legis-
                         laturb,       Regular   Session,  1957, aa amended
                         (Article       gO2e, Vernon’s    Texas Penal Codc);or

                         “(3) a violetion of a motor vehicle traffic ordi-
                         nance of an incorporated    city or town in this
                         rtate.

                      ‘l(b) Unless the juvenile court waives juriadic-
               tion and certifiee  the individual  for criminal   prosecution,
               a perron nuy not be proeocuted       for or convicted of any
               offoneo committed     before roaching    17 yeare of age,
               except:

                         “(1) perjury,  when it lppoare by prooj        that he
                         h a dlufficiont diecrotion  to undoretand      the nature
                         and obligation  of an oath;

                         “(2) a violation of a penal ltrtute cognizable
                         undor Chapter 302, Acte ?f the 55th Lagielature,
                         Regular,  Sorrion,  1957, ae amended   (Article BO20,
                         Vornon’e    Texae Penal Code); or

                         “(3) a violation of a motor vehicle traffic ordinance
                         of an lncerporated   city or town in this state. . . .‘I

        Section 51.04. Vernon’e      Texaa Family     Code, provides   that tbe juvlznllc
court hae excluiive    original juriediction    over proceedingr   under Title 3 04 tbz
Family   Code.   Section (a) of Article    .53.01, which ia a part of Title 3, provides
that:

                      “(a) On referral      of a child or a child’.   case to the
               office or official   derignated      by the juvenile court, the
               intake officer.    probation     officer,  or other perron lulho-
               rfred by the court lhall conduct a preliminary           inve#tigetion
               to detormfno    whothor:.      . . .




                                                 p.   1479
The Honorable     Emory        C.   Walton.    page 4     (H-3201




                        “(2) there ie probable  cause to believe the
                child engaged in delinquent conduct or conduct
                indicating   a need for supervision.  . . .I’

         Section (b) providee   that if “there is no probable  cau~le. . . the child
rh.all immediately   be released   and proceedings   terminated.  ” Section 51.03
of Title 3 of the Family    Code define8 delinquent conduct and conduct indica-
ting a need for l  upervieion  •#~ lollowe:

                        “(a)    Deliquent    conduct ir conduct,         other than
                a traffic      Offenro,  that violatoe:

                              “(I) a penal law of thia state punirhable
                        by imprironment    or by confinement in jail; or

                               “(2) a rearonable     and.lawful  order of a
                       juvenile    court enferod under Section 54.04 or
                       54.05 of thie code; except tbat a violation of a
                       rearonablo     and lawful order of a juvenile court
                       entered purmant        to & determination   that the
                       child tingaged in conduct indicating a neod for
                       ruporvirion      aa defined in Section 51.03(b)(2)   or
                       5t.O3(b)(3)    of thie code doee not constitute delin-
                       quent        conduct.

                       “(b) Conduct       indicating      a need for   lupervlsion    in:

                               “(I) conduct, othei than a traffic offense,
                        that on three or more occasions    violrtea  either
                        of rho following:

                                           “(A) the penal Iewe of thie rtate of the
                                    grade of misdemeanor     that are plniahable  by
                                    flno only: or

                                           “(B)    the penal ordinencer     of any political
                                    lubdivielon     of thir ltate;




                                                  p.   1480
The Honorable       Emory   C.    Walton.      page 5      (H-320)




                                 “(2)    conduct   which    violatee   the com-
                        puleory     lchool lttoadance         kwe;

                                  Y(3) the voluntary       absence     of a child
                        from hlr home without the coneent of hi6
                        parent     or guardian      for a substantial        length
                        of timo or without         intent to return;      or

                               “(4) the.vio(ation   of an order of a juve-
                       nils court entered under Section 54.04 or
                       54.05 of thie coda. purrkant        to + determination
                       thit the child ongagod in conduct which violater
                       the compuleory       lcbool lttondince lawe or the
                       voluntary    rbronco    of tho child from hie homo
                       rithout   the conoont of tdr parent or guardian
                .      for l lubatanthl      hngtb of time or without.
                       htsnt   to rotura.”
  .

None of there aro applicable    to the. factr rot forth in your opinion roqusqt
and in vlor of thire rktutory     limitrtione  lnd’dofiuitionr,  we do not bolipyk
that Title 3 of the Family   Code io applicable    to one-time  vio&tionr  of A+-
cle 666~.17(14)..                                                  .

         Although    the detaile        of tho etatutor    have   chinged,     the baric   atatstQ.ry
lcheme    hae not, and three A,ttornry Ge,aoraL:ppinjonr             have diecurled     *c
rslationrhtp   among tho;e. ihreo lcte,          (ArticlC 66647(14), V. T. P. C.,      (now
V. T. P.A. L),      Acte 1973, 63rd Leg.,         ch. 544, p. 1484, $ 2 (formerly
Article 30, V. T. P. C., and now $8.07,             V. T..P. C.)~rnd ,Title 3 of the
Femi’ly Codo, erp.       5 s St.03 rnd U.04 (formerly         Article   2338-1,V.T.C.S.)).
Attorney General       Opinion WW-1171 (.L961) concluded         that Artic~le 666-L?(I4)
was “a rpecial      exception   to the general propopition        that children   cannqt he
convicted of a cri&nal        offonso.    ” The opinion did not codrider         the lorrc$r
Artlclo   $0 of the Penal Code.        Attorney     Gcniral   Opinion M-t63     (1967) held
that Article   30 precluded      conviction    of children   under the age of fifteen years.
Attorney    General    Opinioa M-327       (1968)involved    ofJeneee under Article        6&6.-I7
(IO committed      .by parroam fifteen      yoara of ‘age or oldor but younger        th+b \he
ago no r nvly    lrtabliohlng     adult rorpoarlbility.       Tho opiaion coucludod +a!




                                                p. .1481
l-ho Honorable     Emory      C.   Walton.    p.gs       6   (H-320)




loch one-time    offendera  4re “not          within the jurimdistion of the juvenile
court 4nd mry ba proaecuted.for              such violrtion   in 413appropriate  crimin41
court b4ving jurladiction     of rucb        ~ffensc. ” 4nd that in nuch cases the pro-
vision requiring   4 tr4nafar    from        criminal   courtr to the juvenile  court
(now F4mily      Code,   ( 51.0‘8, would      not 4pply.

         We hrva #aan nothing in the action of rubsequent    legial4tures    to
indicate 4 cb4nge from the interpretation     d the rt4tuter advanced     by
there opinionr.    When the bglrl4ture     doe* not amend a st4tutc to rlter
a consimtsnt construction   given it by the Attorney  Cener41,   that conatruc-
tion ia entitled to great wilgbt.   Sah Antonio Union Junior College      Digtrict
v. Daniel,   206 S. W. 2d 995 (Tex.    1947).

            Therefore,   it i4 our opinion that. under the facta you describe,        tho
,poraona under the 4ge of fifteen ya4re are not l       ,ubjsct to criminal   prorocu-
 tion or to juvaailo proceodlngm       4nd tht tboro perronr    fifteen yearr   of rge
 4nd  4b6v4    4rd l ubjoct to prorecutlon   in t&o 4ppropri4to    crimhl    court.


                                              SUMMARY

                         Ono~timo      violatorr of Article   666-17(14)(a)    and
                 (b), V. T,   P.~A. L. , which  prohibit4    porrcmrion     or  con-
                 rumptiod     of llc 0h 01  bevorager
                                              ic          by 4 minor or furnirb-.
                 ing rlcoholic  bovorager     to 4 mlndr,   4ro  not rubjoct to
                 crimim1   proraeution    or to juvenile   proceedingr      if they
                 are under fifteen yearr     of 4ge.   Tbey are    li4ble to
                 crimin41 proaocution     if they 4re fifteen yerrr      of 4ge
                 or oldor.   A ono-time     offender  of Article   666-17(14)(4)
                 or (b) ii not #ubJect to juvenile    prbceedingr.


                                                             Very   truly yours,




                                                     u       Attorney   CAnoraL    of Tour




                                               p.        1482
The Honorable   Emory   C. Walton.   page 7 (H-3201




APPROVED:




DAVID M. KENDALL,        Chairman
Opinion Committee




                                       p. 1483
