                              February   15. 1974



The Honorable Wilson E. Speir, Director             Opinion No. H-    232
Texan Department of Public Safety
5805 N. Lamar, Box 4087                             Re: Whether the recent
Austin. Thiar 78773                                 decision of the Court of
                                                    Criminal Appeals in Ex
                                                    parte Johnny Ray h&f&m
                                                    renders Article 6701 l-4,
                                                    Vernoda Texas Civilikatutes
                                                    unconstitutional?

Dear Colonel Speir:

       You have requested our opinion concerning the constitutionality and
interpretation of Article 67011-4, Vernon’s Texas Civil Statutes (formerly
Article 802e, Vernon’s Texas Penal Code), in view of the decision of the
Court of Criminal Appeals in Ex parte Mattbewr,   488 S. W. 2d 434 (Tex. Crim.
1913).

       Articlk 6701’-   4, V. T. C. S., provides penalties for driving a motor
vehicle’while   under the influence of intoxicating liquor or otherwise in violation
of the ‘Cnffir laws of the State of Texas.   By its terms. it is applicable to:

                  YSection 1. Any male minor who has passed hie
           14th birthday but ha6 not reached his 17th birthday. and
           atiy’female minoi who has parsed her 14th birthday but
           has not reached her 18th birthday. . . ”

       In Ex parte Matthews, rupra. Matthews claimed that Article 2338-1.      0 3,
Vernon’s Texai Civil Statuter. and Article 30, 5 2. of the old Penal Code (now
$8:07,   Vernon’s Texas Penal Code), the statuteiunder which he had been
tried as an adult (he was 17 at the time of trial), were unconstitutional in that
the males and females   were treated unequally, and that he was therefore denied




                                    p. 1080
The Honorable    Wilson   E. Spcir,   page 2 (H-232)




equal protection of the law. Article 2338-1, $ 3, defined “child” to be any
female over the age of ten and under the age of eighteen yearcr or any male
over the-age of tep,ad under the age of seventeen years.       Article 30, g 2, as
it was applied to Matthew% provided that no male under s‘eventeen yza>S of
age and no female under eighteen years of age might be convicted of an offense
(except perjury) without waiver of jurisdiction by the juvenile court.     Following
a growing line of casea. the Court of Criminal Appeals, on January 3, 1973.
rendered its decision in Matthew. stating that it was unable to find any rational
objective or logical constitutional justification for the disparity in the age/nex
classification.  In concluded that those portions of the two statutes which treated
males.and females differently were unconstitutional.

      Your first question is:

                   “Does the rationale of the Matthews case render
           Article   802e, Vernon’cl Penal Code, unconstitutional 7
           If it is unconstitutional, are there any parts of the
           rtatute not affscted by the unconstitutionality? I’

       There may be valid bares.for distinguishing between the sexes in defining
crimea. an, for example, ia Buchanan v. State, 480 S. W. 2d 207 (Tu.          Grim.
1972).  However,   we ace no justification or rational basis in the distinction
made by Article 6701 1 - 4, V. T. C. S. , concerning peraonn in the neventeen-
eighteen year old category and in our opinion the courts will hold the statute
unconstitutional to the extent of its application to that category of persons.
Ex part* Matthews, rupra.

       In Ex parte Matthews,, supra. the Court of Criminal Appeals said “WC
conclude that the portion. . . which provides for the inclusion of females of
age aevsnteen within the definition of the word ‘child’, ia violative of the equal
protection clause. ” It also aatd. “[alfter    excising the seventeen-eighteen year
old classification from Article 30, V. A. P. C. and Article 2338-1, V. A. C. S.,
appellant was amenable to prosecution.      . . . I’ The Court seems to have consid-
ered those statutes unconstitutional only in their application to persona in the
seventeen-eighteen   year old classification.

      The cardinal rule of statutory interpretation is to determine the intent of
the Legislature and to give it effect where possible.  Texas-Louisiana   Power Co.




                                        p. 1061
The Honorable    Wilnon E. Speir.    page 3     (H-232)




v. City of Farmerrville,      67 S. W.   2d 235 (Tex.   1933).

      In Vol.   2. Sutherland,   Statutory Coastruction,         6 2412, p. 189 it is said:
                                          ---“m... _ .
                   “When exceptions,  exemptions or proviros in
            a statute are found to be invalid, the entire act may
            be void on the theory that by ntrihing out the invalid
            exception the act ham been widened in its scope aad
           .tberefore cannot properly represent the legislative
            intent. .. , . I!.

      See alao Texas-Louislana.Power  Co. v. City of Farmersvtlle,    supra;
Anderron v. Wood, 152 S. W. 2d 1084 (Tax. 1941), both citing and quoting from
an earlier. adition .af Sutherland.

       Strik$g  ;from Article .6701 L.- 4 that portion which would make it applicable
to femalea .Qy+.r seventeen but sot to male8 past their seventeenth birthday, the
invalid :exoeption in the Act, would .aot broaden its .acope.  To the contrary, the
scope would 4e limited to the .extent that it would no longer apply to female0 pant
the age of seventeen.    Female0 seventeen and under as well aB malee seventeen
and under are now subject to it# provision6 and would remain so.

       It .is our opinion,  therefore, that ~the rationale of the Matthew8 came
does render,.Article     67011 - 4, V. T.C. S. , , unconstitutional to the extent that
it distinguishes between males and femalea over seventeen and under .eighteen
years of ages. It is our opinion further that the ‘statute. insofar as it applies to
male8 and females seventeen and under. ia not unconstitutional.

      ‘f;our...nextquestion   as&

                   1% [ 6701 1 .- 4 in constitutional, do its provisiona
           .allow.the arrest and prosecution of minor6 who have
            passed their fourteenth birthdays for an action committed
            before such person is fifteen years of age?”

      Section 8:07    of the new Penal Code provides.        in part:

                   “(a) Except am provided by Subsection (c) of this
            section. a person may not be prosecuted or convicted
            for ay offense that he committed when younger than
            15 yearcl.


                                           p. 1082
The Honorable    Wilson    E. Speir,   page 4    (H-232)




                  ‘1.   . . .


                 ‘j(c) Subsection (E) and (b)-of thirclection       shall
           not apply to pro6ecutton6 for:

                          ..
                          .*. . .

                          ‘(2) a violation of a penal statute
                            cognimable under Chapter 302, Act6
                           of the 55th Legislature,  Regular
                          Session, 1957, a6 amended; [Article
                           67OlL- 4. V. T. C. S. 1. . . . ”

      Article   6701k     4. V. T. C. S.,   in it6 0 4, provide6   in part:

                  “The offenses created under thin Act rhall be
           under the jurisdiction of the courts regularly empowered
           to try misdemeanors    carrying the penalty herein affixed,
           ad shall not be under the jurisdiction of the Juvenile
           Courtr; . . . ‘I

       It is our opinion, therefore, that, under our present rtatutes, minors
over fourteen yearsof     age may be arrented and prosecuted for violation of
Article 6701 L- 4. committed prior to their fifteenth birthdays.

                                       SUMMARY

           Article 6701 L- 4 Vernon’6 Tens     Civil Statute6. cannot
      be con6titutionally enforced against persons in the seventeen to
      eighteen year old category but i6 enforceable against those
      seventeen and under.    Persons over fourteen but under fifteen
      years of age may be prosecuted for violation of, Article 67011 - 4.




                                                           Attorney General   of Texas
The Honorable   Wilson E. Speir.   page 5    (H-232)




Opinion Committee




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