Honorable Weldon Holcomb            Opinion No, WW-1171
Criminal District Attorney
Smith County                        Re:   Whether Article
Tyler, Texas                              666-17, Vernon's
                                          Penal Code, which
                                          makes the purchase
                                          of alcoholic bev-
                                          erages, etc. by
                                          persons under 21
                                          years of age,
                                          supersedes Sections
                                          12 and 13 of-Ar-
Dear Sir:                                 title 2338-1, V.C.S.
      Your request for an opinion reads in part:
          "The pertinent problem for which we are askin$
       an opinion from your office involves the follow-
       ing:
          "Article 2338-1, Revised Civil Statutes of
       Texas, Section 12, in part reads as follows:
          "'If during the pendency of a criminal charge
       or indictment against any person in any court
       other than a Juvenile Court, it shall be ascer-
       tained that said person is a female over the age
       of ten (10) years and unde~rthe age of eighteen
       (18) 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 al-
       leged offense, it shall be the duty of such court
       to transfer such case immediately together with
       all papers, documents and testimony connected
       ther;ewithto the Juvenile Court of said county
       000
            "Section 13, reads in part as follows:
Hon. Weldon Ho:lcomb,'Pa,ge
                          2   (wwn7:1, )


         II   ,
                No adjudication upon the status of any
     child'i~ ihe jurisdiction of'the court shall
     operate to impose any of the civil disabilities
     ordinarily imposed by conviction, n,orshall any
     child be deemed a criminal by reason of such ad-
     judication, nor shall such adjud,icationbe deemed
     a conviction, nor shall any child be charged with
     or convicted of a crime In any court e e .,'
        "The above quoted law is a part of that which
     was passed by the Legislature in the Acts of 1943,
     48th Legislature, Page 313, Chapter 2a.
        "Article 666-17, Vernon's Annotated Penal Code,
     Volume lA, Section 14(a), reads as follows:
        "(It shall be unlawful for any person under the
     age of twenty-one (21) years to purchase any alco-
     holic beverage, and upon conviction thereof shall
     be fined in a sum of not less than Ten Dollars
     ($10) or more than One Hundred Dollars ($100). It
     shall further be unlawful for any person under the
     age of twenty-one (21) years to possess, unless
     such person under the age of twenty-one (21) years
     be a bona fide employee, as permitted elsewhere in
     this Act, on the licensed premises where such alco-
     holic beverage is possessed, or consume any alco-
     holic beverage in any public place unless at the
     time of such possession or consumption such person
     under the age of twenty-one (21) years is accompanied
     by his or her parent, guardian, adult husband or
     adult wife, or othe:r adult person into whose custody
     he o:rshe has been committed for the time by some
     C3Llrt,who is actually, visibly and pe~rsonally
     present at the time such alcoholic beverage is
     possessed or consumed by such person under the age
     of twenty-one (21) years, and upon convi.ctionthere-
     of shall be fined in a sum of not less than Ten
     Dollars ($10) or Moorethan One Hundred Dollars
     ($1003*.'
        "This statute was passed by the Legislature in
     the Acts of 19551 54th Legislature, Page 1149,
     Chapter 433, Paragraph 1,
.    ,




    Hon. Weldon Polcomb, Page 3    (WW-1171)


             "Our problem is this: There i.san apparent
          direct conflict between the t,woabove quoted
          statutes. The Juvenile Statute above quoted,
           assed in 1943, states that females under eighteen
          P18) and males under seventeen (17) shall not be
          charged with or convicted of a cr.ime'inany
          court. The latter statute, 666-17, Section 14(a),
          states, in substance, that any person under the
          age of twenty-one (21) shall be fined upon con-
          viction not less than Ten       nor more than
          One Hundred ($100) Dollars.
             "Does the latter statute passed in 1955,
          supersede the Juvenile Statute (19431, because
          Section 14 of the Act, passed in 1955, states
          that all conflicting laws and parts of laws to
          the extent of such conflict are repealed, au-
          thorize the corporation or justice courts to
          assess a fine in accordance with the ~instant
          statute and en~forcesuch judgment aga~inst
          females under the age of eighteen (18) and
          above the age of ten (lo), and males under the
          age of seventeen (171 and over the age of ten
          (lO)?ll
          Prior'to the passage of Article&6-17 in 1955, the
    sale of alcoholic beverages to a "delinquent child" (fe-
    males over 10 years of age and under 18 years of age and
    males over 10 years of age and under 17 years of age) was
    illegal and imposed certain penalties upon the seller, but
    no effecti~vesanction was provided against t.hechild. The
    individu~alsale to or possession of alcoholic beverages by
    a child apparently d~idnotsonfer jurisdiction upon the
    juvenile court in and of itself to support juvenile action.
    However, hab,itualuse o:rpossession by a chi~lddid confer
    jurisdiction under the juvenile la,wsand ft stlli-does. See
    Art, 2338-1, Sec:3(~fl,V,C,S,
          In this situation the ~Legis:Lature
                                            was ron.frontedwith
    the problem and decided to i~mposean enforceable sanction
    upon a child for a one-time use or possession of alcoholic
    beverages, We have concluded that the Leg:islatureelected
    to use a cr,iminalsanctl~onIanadd:itionto all of the present
Hon. Weldon Holcomb, Page 4    (WW-1171)



remedies now existing under the juvenile laws and passed
the act as a special exception to the general proposition
that children cannot be convicted of a criminal offense.
Thus the situation came about that after the passage
of this act the juvenile authorities had all of the power
and authority they formerly had but that there has been
added the power to impose a fine and criminal proceeding
upon a child for the possession and use of alcoholic
beverages. We arrive at this conclusion because of the
following cases:
      In Ellis v. Holcombe,'69 S.W.2d 449 (Civ. App., 1934,
Error Ref. May 2 1934) the court states the general rule
covering apparenily conflicting statutes as follows:
           "In support of their proposition above
       stated, appellees cite and rely upon the
       well-settled statutory rule of decision that
       repeal of an existing statute by implica-
       tion is never favored, and a repeal should
       only be implied when the conflict between
       the latter and former statutes is so
       positive that the purpose to repeal is
       manifest. The antagonism must be so
       pronounced that both statutes cannot stand.
       'Though they seem to be repugnant, if it
       is possible to fairly reconcile them such
       is the duty of the court. A construction
       will be sought which harmonizes them and
       leaves both in concurrent operation
       rather than destroys one of them. If the
       later statute reasonably admits of a
       construction which will allow effect to
       the older law and still leave an ample
       field for its own operation, a total re-
       pugnance cannot be said to exist, and
       therefore, an implied'repeal does not
       result, since in such cases both may
       stand and perform a distinct *** office."'
      Article 2338-1 is taken from the Juvenile Cow& Act.
The purpose of which article was to substitute entirely new
.      .




    Hon. Weldon Hoicomb, Page 5     (ww-1171)


    proceedings in the nature of civil proceedings covering
    juvenile offenders and as such it would be classed as a
    "general" law. The Texas Liquor Control Act, Article 666-1,
    etc.. Vernon's Penal Code. has been classed bv our courts
    as a-"special" act. Hall&n V* Texas Liouor Control Board,
    166 S.W.2d 175 (Civ. App., Error Ref. Dec. 16, 1942). The
    question therefore is whether the special act, (Texas
    Liquor Control Act), can be reconciled with the general
    statute (Juvenile Court Act). Our Supreme Court in the
    case of Sam Bassett Lumber Co. v. Citv of Houston, 145 Tex.
    492, 198 S.W.2d 879 (19471, pronounced the general rule at
    Page 888 when it said:
              "The general rule is that when the law
           makes a general provision, apparently for all
           cases, and a special provision for a particu-
           lar class, the general must yield to the
           special insofar as a particular class is con-
           cerned. P,e_re,z.
                          ,v,.
                             Pe,r,e&59 Tex. 322. This
           rule is based upon the principle that all
           acts and parts thereof must stand if possible,
           each occupying its proper place, and that the
           intention of the Legislature is more clearly
           reflected by a particular statute than by a
           general one. Accordingly a specific act is
           properly regarded as an exception to, or
           qualification of, a general law on the same
           subject previously enacted. In such a case
           both statutes are permitted to stand, the
           general one being applicable to all cases
           except the narticular one embraced in the
           s ecial act: Townsend v,.T.sXr.e_ll,,
                                              118 Tex.
           4t3, 16 S.w.2dei-F
          We therefore agree with your conclusion that Section
    666-17, insofar as it covers minors and juveniles is an excep-
    tion to the general statutes covering juvenile offenders,
    Article 2338-l. Such conclusion follows the intent of the
    Legislature and allows the fining of such juvenile offenders
    in order to better effectuate the intents and purposes set
    out in the State Liquor Control Act.
Hon. Weldon Holcomb, Page 6      (WW-1171)


                              SUMMARY

           Article 666-17, Section 14(a) which makes
       the purchase of alcoholic beverages, etc. by
       persons under twenty-one (21) years of age
       is an exception to Sections 12 and 13 of
       Article 2338-1, Vernon's Annotated Civil
       Statutes, and as such makes persons under
       twenty-one (21) years of age susceptible to
       fines for violation thereof.
                                  Very truly yours,
                                     II
                                  WIL WILSON
                                  Attkrney General of axas


                                  Byl+---LM
                                     Norman V, Suare'
                                     Assistant AttolfieyGeneral
NVS:bjh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Cass
L. P. Lollar

REVIEWED FOR THE ATTORNEY GENERAL
BY:   HOUGHTON BROWNLEE
