                           Bfficc of tl)e Bttornep @cneral
                                   &ate of IEexae
DAN MORALES
 ATTORNEY
      CENERAL                           December 19, 1996

    The Honorable James W. Carr                       Opiion No. DM-427
    Lavaca County Attorney
    P.O. Box 576                                      Re: Whether     justice   courts   and
    Courthouse, 2nd Floor                             municipal courts have jurisdiction of
    I-Iallettsville, Texas 77964                      prosecutions under Alcoholic Beverage
                                                      Code sections 106.02, 106.04, and
    The Honorable David M. Motley                     106.05, which prohibit the possession,
    Kerr County Attorney                              consumption, and purchase of alcoholic
    County Courthouse, Suite B20                      beverages by persons under the age of
    700 East Main street                              twenty-one years (RQ-8 10)
    Keaville. Texas 78028-5324

    Dear Mr. Cam and Mr. Motley:

            You both ask which court or courts in your counties have original jurisdiction of
    prosecutions of criminal cases filed under Alcoholic Beverage Code (“code”) sections
    106.02, 106.04, and 106.05. Those sections prohibit the purchase, co11sun41tio4 or
    possession of an alcoholic beverage by a person who is younger than twenty-one years.
    Your questions result from our issuance of Attorney General Opinion DM-320, which
    concluded that the justice courts do not have jurisdiction of prosecutions u&x those
    sections. Attorney General OpinionDM-320 (1995) at 3.

             Sic-e the issuance of that opinion, the Seventy-fourth Legislature, in House Bill
    No. 1648, has changed the criminal jurisdiction ofjustice courts and municipal courts. See
    Act ofMay 24.1995.74th Leg., RS., ch. 449,1995 Tex Gen. Laws 3150,315O. Those
    legislative changes not only determine the answer to yoti questions but also have
    statewide effect. For these reasons, we consider in this opinion whether justice courts and
    municipal courts have jurisdiction of prosecutions under Alcoholic Beverage Code
    sections 106.02, 106.04, and 106.05. Based on our conclusion here, we have answered
    your specific questions about Lavaca and Kerr counties in a separate opinion, Letter
    Opinion No. 96- 144 (1996), also issued to&y.

             The conclusion Of Attorney General Opiaion DM-320 was based on our
    COnstruCtion of the constitutional grant of jurisdiction to justice courts “in crkinal matters
    of misdemeanor cases punishable by fine only,” Tex. Co&. aut. V, 5 19, as “iincludri]
    only offe.tws the sole sanction for which is a fine,” Attorney General Opinion DM-320
    (1995) at 2. We recognized there that the legisti          could have, but had not, expanded
    the jurisdiction of the justice courts pursuant to the constitutional provision for “such
    other jurisdiction as may be provided by law,” Tex. Const. art. V, 3 19, to include the
    non&e sanction of alcohol awareness training that Alcoholic Beverage Code section
The Honorable James W. Carr - Page        2     (DM-427)
The Honorable David M. Motley




 106.115 authorized a court to impose on conviction under section 106.02, 106.04, or
 106.05. Attorney General Opinion DM-320 (1995) at 2 ~3. Furthermore, when we
issued Attorney General Opinion DM-320, the municipal courts getter&y had concurrent
jurisdiction with justice courts

           in criminal cases within the justice court jurisdiction that:

                    (I) arise within the territorial limits of the city; and

                    (2) are punishable only with a fine not to exceed $500.

 Act of May 2. 1991, 72d Leg., RS., ch. 108, 5 7, 1991 Tex. Gen. Laws 681, 682;
 (amendiig Gov’t Code $ 29.003(b)), unrent&d by Act of May 24, .1995,74th Leg., RS.,
 ch. 449, $ 2. 1995 Tex. Gen. Laws 3150, 3151; accord Code Crim. Proc. art. 4.14
 (providing that jurisdiction of municipal court, including ntunkipal court of recor4, is
 concurrent %th any justice of the peace in any precinct in which the city, town or village
 is situated in all criminal cases arising under the crimkal laws of this State, in which the
 punishment is by fine only, and where the maximum of such tine may not exceed $500,
 and arising within such corporate limita”), amenakd by Act of May 24, 1995,74th Leg.,
RS., ch. 449, =$3, 1995 Tex. Gen. Laws 3150, 3151-52.’ The municipal coutts had no
greater statutory jurisdiction of state aiminal offenses than the justice courts had.
.Because municipal courts are not constitutionally created coutta but rather exist only by
virtue of the legislature’s wn&ttionaJ power to %stal~liah such other courts as it may
 deem necessary,” Tat. Const. art. V, 3 1, they have nojutiadiction other than that which
the legislature prcsaibeq      id.  Therefo~    for the reasons stated in Attorney General
 Opinion DM-320 in regard to justice courta, municipal courta then also lacked original
 uiminal jurisdiction in prosecutions under code sections 106.02,106.04, and 106.05.

        Siicc the issuance of Attorney General OpinionDM-320, the IegisJature has
generally expanded the original jurisdiction of the justice      courts and municipal wurts,
including municipal wurts of record-and has speciticaJJy expanded the jurisdiction of
certain municipal courts of record-so that prosecutions under sections 106.02, 106.04,
and 106.05 may now be brotightkt those wutts. The Seventy-fourth Legislatute’s House
BillNo. 1648. An ofMay24,1995,74thLeg.,RS.,ch.             449, 1995Tex. GenLaws3150,
3150, grants original jurisdiction to justice wurta in ckninal cases punishable by a fine
only or by a tine and, *as authorized by statute, a sanction not consisting of con6nernent
                                                                                       ,’
The Honorable James W. Carr - Page 3           (DM-427)
The Honorable David M. Motley




 or imprisonment that is rehabilitative or remedial in nature.” Id g I (amending justice-
courtjurisdiction in Code Grim. Proc. art.. 4.11). The same legislation generally expands
in a simih fashion the jurisdiction of the municipal courts, including municipal courts of
record. See id. $5 2 (amending jurisdiction of municipal court, including municipal court
of record, in Gov’t Code 3 29.003), 3 (amending jurisdiction of municipal court, including
municipal wurt of record, in Code Crim. Proc. art. 4.14); see uko id. @4 - 6 (amending
jurisdiction of specific municipal courts of record in Gov’t Code $9 30.035, .263, .653).
The jurisdictional changes enacted in House Bill No. 1648 apply only to offenses
committed after September 1, 1995. Id. Q 7 - 8. We believe that alcohol awareness
education now falls within the newly expanded jurisdiction of the justice wurts and
municipal courts because, as we explain below, alcohol awareness education is not
punitive but rather is remedial in nature.

        A sanction constitutes punishment if it serves the twin aims of punish-
ment: retribution and deterrence. UnitedSfates v. Hdpr, 490 U.S.. 435, 448 (1989).
“[A] . . . sanction that cannot fairly be’aaid solely to serve a remedial purpose, but rather
can only be explained as also serving either retriiutive or deterrent purposes, is
punishment.” Id. (referring to civil sanction but stating that notion of punishment “cuts
across the division between the civil and the whninaJ law”). See WEBS?ER’SNINTHNEW
COLLEGIATE     DICTIONARY   955 (1989) (defining punishment aa “suffering, pain, or loss that
serves as retribution,” or -a penalty inflicted on an offender through judicial procedure”);
see also id. at 868 (defining penalty in part aa “the au&ring in person, rights, or property
that is annexed by law or judicial decision to the wmmiasion of a.crime or public
offense”). lmprisonrnent in jail and forfeiture of a right or privilege are examples of
punishments that faU outside the jurisdiction of the justice courta, see Ex parle Morris,
325 S.W.Zd 386. 388 (Tex Ctim. App. 1959); see aLso Attorney General Opinion
DM-285 (1994) at 4 (suspension of driver’s license), as well as the municipal courts,
which have the same jurisdictional limits, see Act of May 24,1995,74th        Leg., RS., ch.
449, 8s 2 - 6, 1995 Tex. Gen. Laws 3150, 3151-52. We believe that these sanctions
necessarily serve retributive or deterrent purposes.

        Alcohol awareness education, on the other hand, serves remedial purposes. Code
section 106.115, as amended by the last legislative session, see Act of May 24.1995.74th
Leg., RS.. ch. 615. $1.1995 Tex. Gut. Laws 3474,3475, provides in part as follows:

                (a) Except as provided by Subsection (b), on conviction of a
           minor of an offense under Section 106.02, 106.04, or 106.05. the
           wurt., in addition to asses&g a tine as provided by those sections,
           shall require the defendant to attend an alcohol awareness course
           approved by the Texas Commission on Alcohol and Drug
           Abuse. . . ? Footnote added.]

        ‘SobsectJon@),which is dismsed belowat pages7-9. providesas foUows:
The Honorable James W. Carr - Page 4               (DM-427)
The Honorable David M. Motley




The authority of the Texas Commission on Alcohol and Drug Abuse to approve an
“alcohol awareness wurse” derives from section 461.012 of the Health and Safety Code,
which charges the commission with the duty, among others, to

               (2) plan, develop, coordinate, evaluate, and implement wn-
          structive methods and programs for the prevention, intervention,
          treatment, and rehabilitation of chemical dependency in cooperation
          with federal and state agencies, local governments, organizations,
          and persons, and provide technical assistance, funds, and consultation
          services for statewide and wmmunity-based services . . . .

The policy actuating the creation of the Texas Commission on Alcohol and Drug Abuse is
statedinsection461.001oftheHealthandSafetyCode:

               Chemical dependency is a preventable and treatable illness and
          public health problem a&cting the general welfare and the economy
          of the state. The legislature recognizes the need for proper and
          auflicient facilities, programs, and prowdures for prevention, inter-
          vention, treatment and re?tabiitation. It is the policy of this state
,-        that a chemically dependent person shall he offered a wntinuum of
          ~~thatwillenablethepersontolmdanonnallifeasa
          productive member of society.

See u&o Health & Safety Code § 461.003 (wmtnission created for purpose of “pre-
ventri]   broken homes and. . . los[t] . . . lives”). Hence, the purpose of alcohol
awareness education is the prevention and remediation of the public health problem of
chemical dependency.

        The Texas Commission on Alcohol and Drug Abuse has adopted implementing
regulations in chapter 152 of title 40 of the Admin&&ve Code. Section 152.20 of title
40 provides as follows:

               The purpose of an alcohol awareness program approved by the
          wmmission shall be to present information to participants on the
          effects of alcohol upon behavior and upon the lives of persons who
          use. alcohol; ,to help participants identify their own ddnking patterns
          or problems; to &mate. participants about the laws relating to
          possession, wnsumption, and pmchase of alwholic beverages; and
          to assist participants in developing a plan to reduce the probability of
          involvement in tirture alcohol-related illegal behavior or detrimental
          activity.


 (footnet.?watiaued)
             defendanttopafoxmeightto12hoursofwmonnn          ‘ty km-viceinstead of
           participatingin an alo3holawareness-.                              .
The Honorable James W. Car-r - Page 5           @M-427)
The Honorable David M. Motley




Section 152.25(13) of title 40 requires that an approved program of alcohol awareness~
education for minors set reasonable wurse fees. We are informed that the usual admission
fee for an alcohol awareness course ranges between $25 and $50, with $25 being more
common. We also are informed that the typical wurse schedule wnsists of three hours of
instruction per day on two separate days and that the student is permitted to attend the
classes on dates that are convenient to the student, subject:to class availability and any
wurt-impcsed deadline.-

         We believe that alcohol awareness education is solely remedial in purpose even
thcugh a result of the imposition of a wurse of such education may be the deterrence of
violations of code sections 106.02,106.04, and 106.05. The wurse’s six-hour duration is
not onerous, especially given that the student is allowed some control over scheduling the
class dates, and the modest registration fee is not disproportionate to the costs of
instruction and course materials. Although the purpose of the course (and, if the course is
successfiJ ita actual result in some cases) is the prevention of chemical dependency and
thus is related to the deterrence of violations of the subject code sections, the relationship
is only iudirect. In any event, we believe that the deterrent effect of an alcohol awareness
wurse is not baaed on negative reinforcetn~          that is, an aversion to the wurse as a
repugnant wnsequence of engaging in the subject code violations. Rather, the deterrent
e&t of alcohol awareness education is based on the student’s increased appreciation of
the dangers of alcohol abuse, an appreciation that will enwurage voluntary abstention or
tcqxxance and, in the case. of a person with actual chemical dependency, the voluntary
seeking of treatment.

         In our opinion, then, a wurt-otdered program that deters conduct hy education
rather than by negative reinforcement is not a punishmw         but a sanction that is
rehabilitative or remedial in nature. We accordingly conclude that justice courts and
municipal wurts are not deprived of jurisdiction of prosecutions under code sections
106.02, 196.04, and 106.05 merely because code section 196.115 authorizes the
imposition of alcohol awareness education upon conviction under any of those sections.

        In this regard, however, we tn&t note that there is one other possible sanction for
violation of any of the subject code sections. Subsection (b) of code section 196.115
purports to authorize the imposition of wmmunity service as follows:

                Ifthedefendantresidesinaruralorotherareain~~access
           to an alcohol awareness wurse is not readily available, the wurt ahall
           require the defendant to perform eight to 12 hours of wmmunity
           service instead of participating in an alcohol awareness wurse.

Act of May 24, 1995, 74th Leg., RS.. ch. 615, 5 1, 1995 Tex Gen Laws 3474,3475
(amending Alw. Bev. Code 3 196.115). This provision raises the issue of whether
community service is a punishment that would deprive justice courts and municipal courts
of crimkal jurisdiction.  It is newssary that we consider subsection (b) in order to
 The Honorable James W. Carr - Page 6          (DM-427)
 The Honorable David M. Motley




 determine whether justice courts and municipal courts have jut&h&on        of prosecutions
 under the subject code sections.

         A sanction is punishment, as we have noted, if it kannot fairly be said solely to
serve a remedial purpose, but rather can only be expJained as ako serving either retributive
or deterrent purposes,” UnitedStatesv. Hcdper,490 U.S. at 448. Nothing in the language
of subsection (b) wntines the discretion of the court with respect to the sort of community
service thatit may order. AccordmgJy, this sanction cannot be said to be solely remedial.
Since the sanction therefore is or may he punitive, it would appear that justice and
municipal wurts would have no jurisdiction of violations of code sections 106.02,106.04,
and 106.05 in “+sa[s] in which access to an alcohol awareness wurse is not rdy
avaiiahlq” ifsubsection (b) of section 106.115 were wnstitutional.

          In Attorney GeneraJ Opinion DM-285, however, we concluded that the justice
  hurts were not deprived of jurisdiction of prosecutions under a’penal statute that was
  amended to authorize SDorder of community service if the defendant failed to pay a tine
  or costa previously assessed on a wnviction or was unable, because of poverty, to pay a
  line or Costa on a wnviction. The amendment at issue in that opinion involved section
  104 of V.T.C.S. article 67014 which section prohiiits“overtakingand passing a school
  )us.” Se V.T.C.S. art. 67qld, 5 104(e). We explained that connnunity aetvice under
. se&ion 104 was authorized only when the defendant had E&ad, or was unable, to pay a
  fineorcostsandthuswasnotinadditionto,but~~wasinthealtemativeto,the~e
  and was de&xxi only to effectuate the atate’s interest in punishment and deterrence.
  Attorney General Opiion DM-285 (1995) at 4-5. ,Furthe.m~ore, we explained, the
  Seventy-third Leg&tme       also had enacted a separate statute generally authorizing a
  “justice or judge” to impose wmmunity aervice in the aame ciraunstances, id. at 5
  (quoting Code Crirn. Proc. art. 45.521), and thus had acted consistently with constitution
  article V, section 19, which grants to justice wutta “such other jurisdiction as may be
  provided by law,” id. (quoting Tex Const. art. V, § 19).

        By contrast, subsection (b) of section 106.115 purports to authorize community
service aa an altemative. not to a tine, but to alcohol awareness education.            Thus,
wmmunity service under this provision is pu&hment in addition to the fine. Moreover,
the 1~         has enacted no Jaw generally authotizingjustice courts or municipal courts
toimposewmmlml ‘ty service in addition to fines. Therefore., subsection (b), if valid,
would deprive justice wurts and municipal courts, at least in some areas, of jurisdiction of
all prosecutions under code sections 106.02, 106.04, and 106.05 because those
misdemeanors would be punishable by something other than a fine.

         Subsection (b) raises wnstitutional wncems because it provides for the imposition
of a punishment in some areas of Texas that may not be imposed in other areas Our
state’s constitutional principle-s of due process and equal protection guarantee that
penalties for violations of state crimkal Jaws will operate on all alike+ regardless of which
political subdivision is the venue of prosecution Evparte Sizemore,~8S.W.2d 134, 136
(Te-x. Crirn. App. 1928).
The Honorable James W. Carr - Page 7         (DM-427)
The Honorable David M. Motley




        The courts of this state have consistently struck down laws that would impose
diiexent punishments on defendants for the commission of the same offense in diierent
parts of the state. ‘In Sisemorethe courtstruck down a provision of a local road law that
purported to require the crediting of convicts’ road labor against their tines and costs at
the rate of f%y cents per day of work because it diiered from a statewide law providing
that such labor would be credited at three dollars per day.- The principles of Sitemore
were reafh-med in Expmte Ferpson, 132 S.W.2d 408, 410 (Tax. Grim. App. 1939)
which held that due process and equal protection were denied by statutes providing for the
allowance of difibrent amounts daily, according to the population of the county of
conviction, as credits on tines and costs assessed against persons sentenced to work or
imprisonment in jail on convictions of misdemeanors they were when unable to pay such
fines and costs. Then, in Exparie Cmson, 159 S.W.2d 126 (Tex. Crim. App. 1942) the
court declared unconstitutional a statute providing for a one-dollar cost assessment in
caimhal cases for the county law library fund in counties having eight or more county
caxts, which statute thus applied only to the counties of Dallasand Harris. The &mot
court found Sizemore to be applicable to the cost assessment statute because the statute
purported to “attach a greater penalty for the violation of a provision of the Penal Code
for some counties than is applied generally throughout the State,” Id. at 129-30. Finally,
in Memet v. Staie, 642 S.W.2d 518,525-26 (Tex. App.-Houston [14th Dist.] 1982, pet.
refd). the court struck down on e&al protection and due process grounds a statute
purporting to make a proscribed offense punishable as a class C niisdemeanor (by tine
only) in some cities and punishable as class B misdemeanor (by a higher maximum fme or
imprisonment or both) in others.

        fiZ&&ently with the foregoing case law, this office opined in Attorney General
Opinion JM-880: “A Jaw allowing different costs to be Assessed in difFerem counties for
the same penal offense would have the e&ct of allowing the penalty for state-defined
crimes to vary from county to county and would violate both ‘due process’ and ‘equal
protection* constitutional rights.” Attorney General Opinion JhG880 (1988) at 3.
Accordingly, in Attorney General Opiion DM-123 (1992) we declared unconstitutional a
statute that authorized the taxing of an additional ten dollars in court costs for each
crimid conviction in the statutory county court in some counties.

        The forego-mg authorities uniformly suggest that subsection (b) of section 106.115
camrot pass muster because it does not operate on all persons alike but instead authorize%
for the same offense, a cdminal punishment in some venues of prosecution that is not
authorized in other venues. We therefore conclude that subsection (b) is unwnstituti~d
as a denial of both due process and equal protection. C$ Memer v. State, 642 S.W.2d at
325.

        The invalidity of subsection (b) does not a&ct the rest of section 106.115,
however. Because the Code Construction Act, Gov’t Code ch. 311, governs section
106.115, see Alto. Bev. Code $1.02, we must apply the rule that the invalidity of a
provision of a statute “does not a&ct other provisions . . . of the statute that can be given
effect without the invalid provision,” G&t Code 5 3 11.032(c). The other provisions of
                                                                              .
The Honorable James W. Carr - Page 8         (DM-427)
The Honorable David M. Motley




section 106.115 remain valid and enforceable because. they may be given effect without
subsection (b). Accordingly, we conclude that subsection (a) of section 106. I 15 is
applicable statewide and that all courts shall require a minor offender under the relevant
statutes to attend an alcohol awareness course.

        Having,considered all the possible sanctions for a violation of any of the subject
code sections, we conclude that the justice courts and the municipal courts to which the
Seventy-fourth Legislature’s House Bii No. 1648 applies do have jurisdiction of
prosecutions for violations of code sections 106.02, 106.04, and 106.05 because the
sanctions that may be imposed for such violations include only a fine and a remedial
sanction not consisting of confhtement or imptisomnent.

                                  SUMMARY

                l’& .justice courts and the municipal courts to which the
           Seventy-fourth Legislature’s House Bii No. 1648 applies do have
          jurisdiction of prosecutions for violations of Alcoholic Beverage
           code sections 106.02,106.04, and 106.05.

               Subsection (b) of section 106.115 of the Alcoholic Beverage
          Code violates state constitutional guarantees of due ~process and
          e&l protection because it authorizes the imposition of a ckinal
          punishment    (community   service)  in some venues of prosecution
          (areas in which an aldol awareness come is not readily available)
          that is not authorized in other venues. Subsection (b) is therefore
          invalid, but the other provisions of section 106.115 remainvalidand
          enforce.able because they may be given effect witjtout subsection (b).




                                                    DAN     MORALES
                                                    Attorney General of Texas

JORGE VEGA
Fm Ass&ant Attorney General

&UCAHJ.SHIRLEY
Chair, Gpiion Committee

Prepared by James B. Pinson
Assistant Attorney General

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