                       Office
                            oftfje
                                Qttornep'QiSeneral
                                 . &ate of ltCexae
                                      February 6,199s



Mr. Doyne Bailey                                 opinion No. DM-320
Administrator
Texas Alcoholic Beverage Commission             lb:    Whether justice courts have juris-
P.O. Box 13127                                  diction of prosecutions for violations of
Austin, Texas 7871 I-3127                       sections 106.02, 106.04, and 106.05 of the
                                                Alcoholic Beverage Code (RQ-65 1)

Dear Mr. Bailey:

        You ask us two questions regarding Alcoholic Beverage Code (“code”) sections
 106.02, 106.04, and 106.05. Section 106.02 prohibits the purchase of an alcoholic
beverage by a minor. Section 106.04 generally probibits the consumption of an alcoholic
beverage by a minor. Fiiy,      section 106.05 generally prohibits the purchase of alcohol
for, or the furnishing of alcohol to, a minor. The Seventy-second Legislature amended
these sections to change the range of fines assessable for subsequent convictions under
these sections from a minimum ofSlOOandamaximmn            of SSOOto a minimum of S250
andamaximumofS1,OOO. See Acts 1991,72dLeg., ch. 163,Q 1-3.’

         You fkst ask whether the justice courts have jurisdiction of prosecutions for
subsequent violations of these three sections in spite of the new tie ranges. Our state
constitution grants to justice courts original jurisdiction of all misdemeanor offenses that
are “punishable by tie only,” without limitation as to tine amount, “and such other
jurisdiction as may be provided by law.” Tex. Const. art. V, $19. Article 4.11 of the
Code of Criminal Procedure, however, purports to Iimit the ckninal jurisdiction of justice
cants to crimes punishable by a maximum fine of SSOO. This purported limitation is
tuvxnmitutionaI and void because the legislature has no power to restrict the
wnstitutiond jurisdiction of the district courts and the inferior courts. E.g., Attorney
General Opiion DM-277 (1993) at 3. Therefore, the new maximum tines of S1.000
under sections 106.02,106.04, and 106.05 do not exceed the justice courts’ jurisdiction.


        1Afirrt-timcviolati~daayottbaccodcsectionsisplnibhablcbyafineranging~mS2Sto
szoo. see Alco. Bov. code $0 106.02@),.04(C),.05(c).

         WenotctbsttheSMnty-thirdLegi~urcsddcdairw~sstion106.025,which~~
olTonseof atmptod purchaseof ao alcohoiic bevera= by P mirmr. See Acts 1993, 73d Leg.. ch 934,
$776. A rubscguentviolation of ac&n 106.025 ah is plnishable by a fine ITWI~ from SZ50to Sl,OOO
(lhc tirsbtimc fine range is s25 to S200). Ako. Bcv. code 5 106.025@),(c). cur -    to your first
qocationappliesaswclltotbisstaMc.


                                        p.   1697
Mr. DoyneBailey     - Page 2    @M-320)




         Although the maximum f&s do not eliminate the justice courts as potential
forums, we still cannot determine the ultimate question of whether &se courts have
jurisdiction of prosecutions under the subject code sections until we consider your second
question, which involves another aspect of justice court criminal jurisdiction. You ask
whether the imposition of an alcohol awareness course by a justice court pursuant to code
section 106.115 constitutes a “punishment” that would deprive the court of jurisdiction by
exceeding the wnstitutionsJ jurisdictional limitation to mi&.mermors “punishable” solely
by fine, Tex. Const. art. V, 5 19.2 Section 106.115 provides, in pertinent part:

                (a) On the Grst wnviction of a minor of an offense unda
           Section 106.02,106.04, or 106.05 of this cod% the wur& in addition
           to dg        a fine as provided by those sections, may require the
           defbndant to attend an alcohol awareness course approved by the
           Texas Commission on Alcohol and Drug Abuse or a similar alcohol
           awareness course approved by the court . . .

                (b) Ifthe conviction under Section 106.02,106.04, or 106.05 of
           this code is for a second or subsequent offense, the court shall
           require the defbndant to participate in an alcohol awareness course in
           addition to paying the fine assessed under that section . . . .

 Your question assumes that the wnstitutional grant of ckninal jurisdiction of
misdemetmors “punishable by he only” includes offenses for which the court may impose
nonpunitive sanctions, such as (we will assume for the sake of argument) alcohol
awareness wurscs. For the following reasons we believe that the constitutional grant of
jurisdiction includes only offenses the sole sanction for which is a fine and therefore that
the justice wurts do not have jurisdiction of violations of sections 106.02, 106.04, and
 106.053



       atecowtiMionalpttwtatoofor~wawtjurisdiction        isasfollows:

               htetiwoftkpwwcoortsshauhaveorigirutljurisdictionincriminat
          MtCISOf-EarapmisbablCbyfitlConly,CXClUSiVCjurisdidiOllin
          civilmsnor3whotathe~in       oorlmmyistwohoodmddouamorl~and
          atchotherjmirdictionasmsyhcpmvidcdbylaw. 1usticcsofthepwwahallhc
          oxoaiciono&ri&pohlic.




                                       p.   1698
Mr. Doyne Bailey - Page 3        @M-320)




         From the adoption of the constitution in 1876 until the amendment of the
jurisdictional provision to its current language in 1985, section 19 of article V provided in
pertinent part as follows: “‘Justices of the peaw shag have jurisdictjon in crimmal matters
of all cases where the penalty or 5e to be imposed by law may not be more than for two
hundred dollars . . . .” Ten. Const. art. V, 5 19 historical notes. Although this provision
lacked any limitation similar to the current one of “punishable by 5e only.” the old Texas
Court of Appeals in 1876 read the limitation into the provision:

            [Tlhe tiamers of our organic law intended only to w&r upon
           justices’ wurts.. . jurisdiction in cases where the penalty was by
            peamhy 5e alone, not to exceed the limit speci5d. Imprisonment
           in the wtmty jail cannot be estimated in dollars, nor can it be
            considered in any manner a pecuniary fine. It follows, therefore, in
           the opinion of this court, that whenever, in misdemeanors,
            ’ prisomnent may be assessed as an alternati~ or as a part of the
            i!z e to be imposed, justices’ courts have no jurisdiction to try. Of
            m         this rule is not to be understood as applicable to, or
            interfering in any mamter with, the authority of such wurts to
           imprison for the non-payment of fine and costs, or, when necessary,
           to assert, protect, and en8orce their authority in cases where their
           jurisdiction properly obtains.

Tuttk v. State, 1 Tar. Ct. App. 364,366 (1876).

         We believe the Texas Court of Appeals’ foregoing strict reading of the justice
 wurts’ former wnstitutional jurisdiction warmnts asbnilarstrictreadingofthecurrent
provision in regard to jurisdiction of offenses for which there is a sanction in addition to,
or in the alternative to, a 5e, regardless of whether that sanction may be considered to be
nonpunitive. We fbrther believe a strict reading of the wnstitutional jurisdiction also is
good policy. Section 19 of article V delegates authority to the legislature to grant
additional jurisdiction to the justice wurts. Therefore, a strict reading will ensure that the
legislature will act deliberately in granting additional jurisdiction to the justice courts only
in matters that are suited to the infomtaUty of justice wurt proceedings. Therefore, we
conclude that section 19 of article V of the wnsdtution grants jurisdiction to justice wurts
in crimid matters in which the only possible sanction is a 5e and, acwrdingly, that the
justice courts do not have jurisdiction of prosecutions under sections 106.02, 106.04, and
 106.05 of the Alcoholic Beverage Code because those sections provide for the nor&e
 sanction of alcohol awareness education and because the legislature has not granted to the
justice courts jurisdiction of prosecutions in which such a sanction may be imposed.




                                         p. 1699
Mr. DoyneBailey    - Page 4    @M-320)




                                   SUMMARY

                Section 19 of article V of the Texas Constitution grants
          jurisdiction to justice courts in criminal matter5 in which the only
          possible sanction is a line. Therefore, the justice courts do not have
          jurisdiction of prosecutions under sections 106.02, 106.04, and
           106.05 of the Alcoholic Beverage Code because those sections
          provide for +e nonfine sanction of alcohol awareness education and
          because the legislature has not granted to the justice courts
          jurisdiction of prosecutions in which such a sanction may be
          imposed.




                                                    DAN MORALES
                                                    Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prq3ared by Rick Gilpin
Assistmt Attorney General




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