                              AUSTIN   ia. TEXAB
~RSCE DA?-==-
A--    cauc==..L

                               August 30, 1951

          Hon. Homer Garrison, Jr., Mrector
          Tefezzyrtment    of Public Safety
          Austin, Texas           Opinion No. V-1266
                              Re: Construction of House Bill
                                  Ho. 581, Acts 52nd Lsg.,
                                  1951, codified as Article
                                  802d, V.P.C., regulating
                                  punishment of minors for
          Dear Col. Garrison:   , driving while intoxicated.
                   You have requested the opinion of this office
          on several questionsrelative to House Bill 581, Acts
          2:; L&SC 1951, ch. 436, p. 786, codified as Article
                        which creates the offense of driving while
          lnto&&~d’~y    minors between the ages of ‘fourteenand
          seventeenyears. Your questions are as follows:
                        ‘1. If a minor who has reached his four-
                   teenth birthday but has not reached his seven-
                   teenth birthday is convicted of driving while
                   lnt~xicated,is his lice&e ‘tooperate iimotor
                   vehicle automaticall suspended wer    the pro-
                   visions of Section,2X Art. 6687b, Vernon’s
                   Ann. Clv. Statutes of’Texas?
                        n2. Sec. 3 of IL B. 581, 52nd Texas keg-
                   islature,provides that a minor between four-
                   teen and seventeen convicted of .D.W.I.may be
                   placed on probation by the court. When such a
                   person Is convictedand placed on probation,
                   is the convictiona final convictionas required
                   by Sec. 24, Art. 6687b, relating to the auto-
                   matic suspensionof licenses?
                        n3* Assume that a minor fifteen years of
                   age is convicted of D.W.I. and that be is sub-
                   sequently convicted of D.W.I. when sixteen years
                   of age, would the second offense be punished as
                   provided in Section 1, IL B. 581, or would It
                   constitutea felony? Upon the second conviction
                   could his license to operate a motor vehicle be
                   suspended for one year?
Hon. Homer Garrison,Jr., page 2   (V-1266)


         “4. Suppose ziminor was first convicted
    of D.W.I. just prior to his seventeenthblrth-
    day and was subsequentlyconvictedof D.W.I.
    when eighteen years of age, would the second
    convictionbe punished as in the case.ofadults
    convicted the second time?”
          We set out initially the pertinentprovisiom
of House Bill 581, which has now been codifiedas Art%.
cle 8026, V.P.C., as follows, eliminatingthe formal
parts thereof:
           “Section 1. Any minor who hes reached
    his or her fourteenth (14th)birthdaybut
    has not reached his or her seventeenth(17th)
    birthday and who drives or operatesan auto-
    mobile or any other motor vehicleupon any
    public road or highway in this State, or upon
    any street or alley within the limits of an
    incorporatedcity, town or village,in a
    reckless   manner,,at an excessiverate of
    speed, or while’under   the influenceof intox-
    icating liquors, as hereinafterdefinedin
    this Act, shall be guilty of a misdemeanor
    and upon convictionshall be punishedby a
    fine of not less than One Dollar ($1) nor
    more than Fifty Pollard   ($59).

          “Sec. 2. (a) Any minor who drives any
     vehicle in wlllf~l or wanton disregard of
     the rights or safety of others or wlthout due
     caution or circUmspection,and at a speed or
     in a manner’s0 as to endanger or be likely to
     endanger a person or property shall be guilty
     of reckless driving.
          “(b) Any minor who operates. a motor vehl-
     cle at a speed In excess of the maximum speed
     allowable Under existing law shall be guilty Of
     speeding.
          “(c) Any minor who drives or operatesan
     automobile or any other vehicle while such per-
     son is Intoxicated or under the influenceof
     intoxicatingliquors shall be guilty of driving
     or operating a motor vehicle while under the ln-
     fluence of intoxicatingliquors.
Hon. Homer Garrison, Jr., page.3 (V-1266)

        rc
       1 'Sec. 3. Provided that for g00d cause
     shown, and when It shall appear,to the SatIS-
     faction of the court that the ends of justice
     and the best interest of the public as well
     as the defendant will be subservedthereby,
     the courts of the State of Texas having orlg-
     inal jurisdictionof such criminalactions
     shall have the power after convictionor plea
     of guilty to suspend the impositionof such
     fine and may place the defendant on probation
     for a period of ninety (90) days.
          "Any such minor placed on probation shall
     be under the supervisionof such court.
          %ec. 4. Hothing contained in this Act
     shall be construed to repeal or affect any
     other Statutes regulating the powers and
     duties of Juvenile Courts: the provlslons of
     this Act shall be cumulativewith all other
     Acts on this subject."
           We turn now to.your questions and will dispose
of them In the order asked.
           1. If a minor who has reached his fourteenth
birthday but has not reached his seventeenthbirthday Is
convictedof driving while lntoxicated.~lshis license to
operate a motor vehicle automaticallysuspendedunder the
 rovislons of Section 24. Art. 66o'i'b,
                                      Vernon's Ann. (Xv.
 tat&es of Texas?
           The.provision in the drivers’ license statute
providing for automatic suspension of licenses,being Sec-
tion 24 of Article 66873, V.C.S., reads-as follows:
           "(a) The license of any person shall
      be automaticallysuspended upon final convlc-
      tlon of any of the following offenses:
           * . . .

           "2. Driving a motor vehicle while un-
      der the Influence of Intoxicatingliquor . . ."
           It is pertinent to observe at this point that
House Bill 581, which Is now Article 802d, V.P.C., cre-
ates an entirely new offense. Prior to Its passage, male
Hon. Homer Garrison, Jr., page 4    (V-1266)



juveniles under seventeen years of age and female juve-
niles under eighteen years of age were not subject to
punishmentfor crimes but were subject only to the pro-
visions of Article 2338-1, V.C.S., which established
juvenile courts and provides the procedurefor trials
for juveniledelinquency. Section 12 of that statute
specificallyprovides that:
              "If during the pendency of a criminal
         charge or Indictmentagainst any person In
         any other court than a Juvenile Court, it
         shall be ascertainedthat said person is a
         female over the age of ten (10) years and
         under the age of eighteen (1.8) years, or is
         a male person over the age of ten (10) years
         and under the age of seventeen (17) years
         at the time of the trial for the alleged of-
         fense, it shall be the duty of such court
         to transfer such case Immediatelytogether
         with all papers, documents and testimony
         connected therewithto the Juvenile Court
         of said~aounty."
           The offenses created by House Bill 581 are a
departurefrom the general policy for handling juvenile
offendersand constituteexceptions to the foregoing la
g -g e
        As to the'offensesthus created,Article 2338-1.
         l

V.C.S., will not apply.
           Turting back to the drivers' license law, we
note that the automatic suspension provided for In Sec-
tion 24 of Article 6687b is for convictionof "driving
a 'motorvehicle while under the influenceof lntoxlcat-
lng liquor." That Is almost the precise gravamen of th
offense created by House Bill 581 relative speclflcally
to driving while intoxicated,except that the gravamen
is Inclusiveof factual allegationsof minority. We do
not think that the particular offense of driving while
intoxicatedby a minor, which Is one of the offenses cr
ated by House Bill 581, Is distinguishable,because of
the minority of the defendant, from the offense descrlb
in Section 24 of Article 6687b as *drivinga motor vep
cle while under the Influence of intoxicatingliquor.
section of the drivers' license law does not purport to
fer specificallyto any particular section of the Penal
Code other than to describe very generally the characte
of the offenses for which automatic suspensionwill be
consequence.
Hon. Homer Garrison,Jr., page 5   (V-1266)



           We thereforehold in answer to your first ques-
tion that a minor who holds a license issued wader Artl-
cle 6687b, who, being within the age bracket of fourteen
to seventeenyears, 1s convicted of driving while lntoxl-
cated as provided by House Bill 581, being Article 8026,
V.P.C., shall for the first convictionsuffer an automatic
suspensionof such license for the period and within the
provisionsof Section 24 of Article 6687b.
           2.  Sec. 3 of PI.B. 581..52nd Texas Legislature,
provides that a minor between fourteen and seventeenCon-
victed of D.W.I. may be placed on probation by the court.
When such person is convicted and DlaCed on Drobation. 1s
the convictiona final convictionas reaulred by Sec. 24,
Art. 6687b, relating to the automatic suspensionof ll-
tenses?
           Section 3 of House Bill 581, to which you refer
in your second question, Is set forth above.
            This office has previously ruled ln Opinion
 V-1157 (1951) that the suspension of a sentence In con-
 nection with a convictiondoes not affect the automatic
 suspensionof a driver’s license if the offense 1s one of
 the enumeratedoffenses set out in Section 24 of Article
 6687b.  Slmllarly,this office has held ln Opinion V-408
 (1947) that placing a convicted adult defendant on proba-
 tlon under the Adult Probation and Parole Law,~belngArtl-
.cle 781b, V.C.C.P., does not permit the convictingcourt
 to include within the comprehensionof the probation a re-
 mission of the automatic suspension of the driver's license
 of the defendant,when the offense is one of the enumerated
 offenses set out in Section 24 of Article 6687b.
           In so far as the effect of the suspensionof
sentence or placing the defendant on probation is con-
cerned, we see no reason for distinguishingbetween an
adult and a minor with regard to'the consequenceof such
action on the automatic suspension of a minor's driver's
license. We hold that the action of a convicting court
in placing a minor on probation under Section 3 of House
Bill 581 does.not alter or affect the suspension of the
driver's license as an automatic consequenceof the con-
viction for one of the offenses set out ln Section 24 of
Article 6687b.
            3.  Assume that a minor fifteen years of age
 Is convicted of D.W.I. and that he is subsequentlycon-
 victed of D.W.I. when sixteen years of age. WOUld the
Hon. Homer Garrison,Jr., page 6   (V-1266)




           Your reference to whether the second offense
of driving while Intoxicatedby a minor might be a fel-
Ony requires referenae to Article 802b, V.P.C., which
prescribesthe penalty for the second or a subsequent
offense bf driving while intoxicated. That statute de-
fines a separate offense from the offense of driving
while intoxicatedby a minor.   Under Article 2338-1,
V.C.S., and prior to the passaegof House Bill 581, a
minor may not be punished for crime, which, of course,
includes the felony offense of a second or subsequent
convictionfor driving while intoxicated,as set out In
Article 802b, V.P.C. House Bill 581 establishesthe mis-
demeanor offense of driving while Intoxicatedby a minor
as one exception to the provisions of Article 2338-l.
The felony offense of a second or subsequentconviction
for driving while Lntoxlcated1s not included as an ex-
ception to Article 2338-1, and that statute w0ul.dpre-
clude punishinga mlnor for the second convictionof
poFbmv ;hl$ Intoxicatedas a felony under Article
     2 . . .
           However, a person might be convictedseveral
times for repetitionsof the misdemeanoroffense of drlv-
lng while lntoxlcqted,as defined by House Bill 581,
while still a minor. Upon ,thesecond convictionunder
this statute for driving while intoxicated,the driver’s
license of the minor so convictedwould be suspendedfor
a yeai?,under Section 24 of Article 66873, regardless of
the fact that both convictionswere misdemeanors. Tatum
v. Texas Department of Public Safety, 241 S-W.26 16m~
Civ. App. 1951, error ref.).
           4. Suppose a n&r was first convicted of
D.W.I. just prior to his seventeenthbirthday and was
subsequentlyconvictedof D.W.I. when elateen years of
aRe. would the second convictionbe punished as In the
case of adults convicted the second tFme?
           This question requires a constructionof Arti-
cle 802b, V.P.C., which reads:
           "Any person who has been convicted of
     the misdemeanoroffense of drlv3.n~or oper-
     atiw an automobile or other motor vehicle
Hon. Homer Garrison,Jr., Page 7   (V-1266)



    upon any Dublic road or hinhway ln this State
    or upon any street or alley within an lncor;
    porated city. town or villane, while lntoxi-
    cated or und the lnfluence of intoxicating
    cr,     and %o shall thereafterdrive or
    operate an automobileor other motor vehlcle~
    upon any public road or highway In this
    State or upon any street or alley within
    the limits of an incorporatedcity, town
    or village, while such person la intaxi-
    cated or under the Influence of lntoxicat-
    lng liquor, shall be guilty of a felony and
    upon convictionbe punished by confinement



          Tbls penal law creates a separate offense; it
is not a matter of enhancement of the penalty. Haynes
v. State, 200 S.W-28 824 (Tex. Crlm. 1947).
          There is, of course, a fundamentalrule of
statutory consttictlonthat penal laws are strictly con-
strued. This being true, we must construeArticle 802b,
V.P.C., strictly in determiningwhether its reference to
any person who has been previously convicted of "the:mls-
demeanor offense of driving . . . while Intoxicated .'. .M
may be construedto include a convictionfor the newly cre-
ated offense of driving while intoxicatedby a minor as
created by House Bill 581.
      CAn    examinationof the history of the statutes
relating to drlvlng while IntoxicatedIs enlightening
and we think Is @-value in determiningthe answer to
this question..,/I
          As first passed in 1923, Article 802 of the
Penal Code provided that the offense of driving while
Intoxicatedwas a felony, and thus it remained through
subsequentlegislativeamendments until 1941, when the
47th Legislaturepassed an Act changing the first offense
to a misdemeanorand adding Article 802b and Article 802~
of the Penal Code, creating two new offenses. That 1941
Act, which was Acts 47th Leg.,.1941; ch. 507, p. 819,
was comprehensiveof the drunken driving offenses at that
time. By turning to that Act and observLngIt In the
light of the history of the offense of CtrlvFngwhile in-
toxicated,It will bs seen that when Section 2 of that
Act -- which originallyenacted Artiale 802b of the Penal
Eon. Homer Garrison, Jr.,   page 8   (V-1266)


Code -A referred to ‘the mi_ademeanoroffense of . . .
drZvlng while Intoxicated,”It olearly referred to the
misdemeanoroffense which was simultaneouslycreated
by Section 1 of the same Act, because before the pas-
sage of that Act the first or a subsequentoffense of
driving while intoxicatedhad consistentlybeen a fel-
any. We conclude that the reference remains unchanged.
          We thereforehold that the convictionof a
minor for the offense of drlvlng while intoxicatedln
violation of House Bill 581, codifiedas Article 802d,
V.P.C., may not be used as a prior convlatlonto form
the basis of a convlctlonfor violatingArticle 802b,
V.P.C., for a second or subsequentconvictionfor driv-
ing while intoxicated.
         We are, of course not passing on the constl-
tutionalltyof house Bill 561, that questionnot having
been asked.
                       SUMMARY
          Convlctlon of a minor for driving while
     IntoxicatedIn violation of Article 802d,
     V.P.C., automaticallysuspends any license
     to operate a motor vehicle’which such minor
     may have, under Section 24 of Article 6687b,
     V.C.S.
         When a minor Is convicted of driving
     while IntoxicatedIn violation of Article
     8026, V.P.C., and placed on probation,the
     probation does not affect the automatic sus-
     pension of the license to operate a motor
     vehicle of such minor.
          A minor convicteda second or subse-
     quent time for driving while intoxicated
     in violation of Article 802d, V.P.C., may
     only be convicted of a misdemeanor,but upon
     the second convictionthe minor’s license to
     operate a motor vehicle Is automaticallysus-
     pended for a year, under Section 24 of Artl-
     cle 6687b, V.C.S.
          Conviction of a minor for driving while
     intoxicatedin violation of Article  8026,
     V.P.C., may not be used as the basis for con-
     victing such person of the fel.onyOffense of
Hon. Homer Garrison, Jr., page 9   (V-1266)


     drlvlng while intoxicatedupon a Second or
     subsequentconviction,in violation of Arti-
     cle 802b, V.P.C.

APPROVED:                     Yours very truly,
Hea WcDanlel                    PRICE DANIEL
State Affairs Division        Attorney General
Everett Hutchlnson
ExecutiveAssistant
Price Daniel
Attorney General

DJC:jmc
