PRICE   DANIEL
ATTORNEYGENERAL




        Hon. James W. Mtller         Opinion No. v-1283
        County Attorney
        Dallam County                Re:   Interpretation of House Dill
        Dalhart, Texas                     581, Acts 52nd Leg., R.S. 1951,
                                           respecting punishment of minors
                                           for driving while intoxicated.
        Dear Sir:
                 Your recent request is for an opinion reconciling the
        provlsions of House Bill 581 Acts 52na Leg., R.3. 1951, ch. 436,
        p. 786, codified as Article 802d, V.P.C., with the provislbna of
        Article 2X38-1, V.C.S. You also indicate concern as to whether
        there is a conflict between the penalty provisions of House Bill
        581 and those in Article 802, V.P.C.

                 Rouse Bill 581 creates the misdemeanor offense of driv-
        ing a motor vehicle upon public roads, highways, streets, etc.,
        "in a reckless manner, at an excessive rate of speed, or while
        under the influence of intoxicating liquors," as defined, when
        committed by minors fourteen through sixteen years of age. It
        provides for a fine of not leas than $1.00 nor more than $50.00
        upon convlctlon.
                 Article 2338-l is a comprehensive statute which sub-
        stitutes juvenile courts for criminal courts to deal with any
        child of a designated age who violates any law or ordinance or
        is otherwise within the provisions of the statute. It sets
        forth comprehensive provisions for the handling, care, and dls-
        position of such children. It applies to female children over
        ten and under eighteen years of age and male children over ten
        and under seventeen years of age.
                 You are particularly concerned with ascertaining the
        proper court in which to institute action against a minor who
        violates Rouse Bill 581.
                  Rouse Bill 581 provides, inso   far as pertinent, as fol-
        lous:
                  "Section 1. Any minor who has reached his
             or her fourteenth (14th) birthday but has not
             reached his or her seventeenth (17th) birthday
             and who drives or operates an automobile or any
             other motor vehicle upon any public road or
Hon. James W. Miller, page 2         v-1283


     highway in this State, or upon any street or
     alley within the limits of an incorporated
     city, town or village, in a reckless manner,
     at an excessive rate of speed, or while under
     the influence of intoxicating liquors, as here-
     inafter defined in this Act, shall be guilty
     of a misdemeanor and upon conviction -shallbe
     punished by a fine of not less than One Dollar
     ($1) nor more than Fifty Dollars ($50).
         II
          : . . . .
         "Sec. 3. Provided that for good cause
     shown, and when It shall appear to the satis-
     faction of the court that the ends of justice
     and thenbest interest of the public as well
     as the defendantwill be subserved thereby,
     the~courts of the State of Texas having orig-
     inal.jurisdiction of such criminal actions
     shall have the power after convlction~or plea
     of guilty to suspend the Imposition of such
     fine landmay place the defendant on probation
     for a period of ninety (90) days.
         "Any such minor placed on probation shall
     be under the supervision of such.court.
         "Sec. 4. Nothing contained in this Act
     shall be construed to repeal or affect any
     other Statutes regulating the powers and du-
     ties of Juvenile Courts; the provisions of
     this Act shall be comulative with all other
     Acts on this subject."
         The provisions of House Bill 581 are clear and specific
and, but for Section 4 thereof, any conflicts between it and a
prior statute would result in an implied repeal of the earlier
statute to the extent of the conflict. Popham v. Patterson, 121
Tex. 615, 51 S.W. 2d 680 (1932); Att'y Gen. Ops. V-1041 (1950)
and-.V-993(1950). It is also clear that, unless prevented by the
effect of Section 4, those courts normally having jurisdiction of
misdemeanor offenses punishable by fine only of $50.00 or less
would have jurisdiction of cases involving violation of its pro-
visions.
         It is our opinion that to construe House Bill 581 as
providing for the prosecution of the offenses listed therein in
the same manner as any other misdemeanor cases involving a fine
only of $50.00 or less would not repeal or affect any other statutes
regulating the powers and duties of juvenile courts within the
meaning of Section 4.
Hon. James W. Miller, Page 3        v-1283



         Section 13 of Article 2338-l establishes in the juvenile
court, thereby authorized and created, jurisdiction of a civil
nature only and provides that no adjudication by such court "shall
. . . be deemed a conviction." The juvenile court, therefore,
may not entertain jurisdiction of criminal cases, as such, which
is the nature of the prosecution contemplated by House Bill 581.
Such a construction of House Bill 581 does not take away any of
the powers or duties of juvenile courts.

         Nor does House Bill 581 affect the exclusive jurlsdic-
tion of the juvenile court. By Section 5 of Article 2338-1,
juvenile courts only have "exclusive original 'urisdiction of
proceedings governing any delinauent child." iEmphasis added
throughout opinion.)
          The offenses mentioned in House Bill 581 are not such
as to constitute the offender a "delinquent child," since Sec-
tion 3 of Article 2338-l defines that term to mean "any female
person over the age of ten (10) years and under the age of eigh-
teen (18) years and any male person over the age of ten (10)
years and under the age of seventeen (17) years: (a) who vio-
lates any penal law of this State of the grade of felony; b)
or who violates any penal law of this State of the grade of mis-
demeanor where the punishment prescribed for such offense may be
by confinement in jail," or who "habitually" does certain acts.
         It is to be noted that the provisions of Section 4 of
House Bill 581 express no intent that it shall not repeal or
affect statutes dealing with proceedings involving unlawful con-
duct of minors, but is limited to an intent to leave unaffected
merely the "powers and duties of Juvenile Courts.!' Nothing in
House Bill 581 would prevent civil proceedings for correction of
a minor in the juvenile court. The Act Is merely "cumulative"
of, or in addition to, other statutes dealing with the conduct
of minors contrary to the penal statutes, authorizing an addi-
tional procedure in the nature of a criminal action against such
minor.
         In so authorizing the criminal action and in
placing jurisdiction thereof in the courts which ordinarily have
jurisdiction of misdemeanor offensesof the grade prescribed by
House Bill 581, its provisions conflict with certain other pro-
visions of Article 2338-l and must, therefore, be construed to
effect a repeal to the extent of the conflict. For example,
Article 2338-l provides in Section 11, that peace officers and
probation officers may 'take Into custody any child who is found
violating any law or .ordinnnce,"and directs that the child be
brought before the juvenile court. The same section prohibits
officers from taking such child before "a Police Court or a
Justice of Peace Court." Section 12 requires that all criminal
Hon. James W. Miller, page 4       v-1283



cases involving the designated minors shall be transferred to
the juvenile court. Section 13 provldes that no child, as
defined; shall "be charged with or convicted of a crime in any
court." These provisions are-deemed to be superseded in so far
as they conflict with House Bill 581 but it is to be noted that
they are provislons.dealing with "powers and duties" of peace
officers, probation officers, police and justice courts, and
other courts, and such a repeal is not, therefore, inhibited by
Section 4 of House Bill 581.
         You are advised, therefore, that the offenses described
by House Bill 58i acreto be handled as criminal matters and pro-
secutlon mag.be instituted in those courts having jurisdiction
of criminal cases punishable by fine only of $50.00 or less. A
prosecution as such may not be instituted in the juvenile court,
but the acts prohibited by House Bill 581 may be the subject of
juvenile court action if the matter Is otherwise properly brought
before such court.
         The effectof House Bill 581 is to create a new and
separate offense from the offense defined in Article 802, V.P.C.,
which is the general statute dealing with driving while intoxi-
cated.~ Atty Gen. Op. v-1266 (1951). Since these two statutes
define separate offenses, the penalty prescribed by House Bill
581, while varying from the penalty set out in Article 802, is
not in conflict with it. The penalty provisions of House Bill
581 will control in prosecutions under this law.

         Since you have not presented any question as to the con-
stitutionality of any of the provisions of House Bill 581, we ex-
press no oplnion thereon.

                         SUMMARY
        The provisions of Hou.seBill 581, Acts 52na
   Leg., 1951, ch. 436, p. 786, make minors fourteen
   years of age to seventeen years of age subject to
   criminal prosecution for reckless drlvlng, speed-
   ing, and driving while intoxicated, as defined
   therein. Juvenile courts do not have jurisdiction
   of criminal matters, and those actions set out in
   House Bill 581 are to be prosecuted in courts hav-
   ing jurisdiction of offenses punishable by fine
   only of $50.00 or less. There is no conflict be-
   tween the penalty provisions of Article 802, V.P.C.,
   and those in House Bill 581.
.   .




        Hon. James W. Miller, page 5         v-1283



                                       Yours very truly,
                                       PRICE DANIEL
                                       Attorney General

                                       By s/Joe S. Moore
                                            Joe S. Moore
                                            Assistant

        APPROVED:
        Ned McDaniel
        State Affairs Division

        Everett Hutchinson
        Executive Assistant
        Price Daniel
        Attorney General
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