Untitled Texas Attorney General Opinion ( 1967 )

November 27, 1967
Honorable Ogden Bass Opinion No. M-163
Criminal District Attorney
Brasoria County Rt?: Construction of House Bills
Angleton, Texas 77515 780 and 788, Acts of the 60th
Legislature.
Dear Mr. Bass:
In your opinion request you ask the following questions:
"(1) In your opinion, does House Bill 780 repeal by
implication Articles 666-17 and 802e,,.TexasPenal Cede (1925),
insofar as these statutes apply to persons under fifteen years
of age and, if so, is such repeal limited to the 'conviction'
of such persons so that the laws of arrest, search and seizure
remain applicable to such persons?
"(2) In your opinion does House Bill 788 impliedly re-
peal Articles 27.14 and 45.33, Texas Code of Criminal Pro-
cedure (1965), insofar as these articles apply to the class
of persons designated in Article 802e, Texas Penal Code
(1925), so as to preclude such persons from disposing of
cases without a personal appearance in open court?
"(3) In your opinion does House Bill 788 have the effect
of enlarging Articles 42.01, 42.15, 42.16 and 45.50, Texas
Code of Criminal Procedure (1965), to require that judgments
entered in cases filed under Article 802e, Texas Pen,alCode
(1925), recite not only the personal appearance of the de-
fendant in open court but also that of his parents or guard-
ian or, if the presence of the parents or guardiansis waived
by the court, the facts surrounding such waiver?"
An implied repeal of a statute is a matter of legislative
intent. Rogers v. Watrous, 8 Tex. 62 (1852); St. Louis & S.W.
Ry. Co. v. Kay, 85 Tex. 558, 22 S.W. 665 (1893); First National
Bank v. Lee County Cotton Oil Co., 274 S.W. 127 (Comm.App. 1925);
Berry v. State, 156 S.W. 626 (TexiCrim. 1913).
A repeal of statutes by implication is never favored or
presumed. 53 Tex.Jur.2d 151, Statutes, Sec. 102, and 22 Texas
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Hon. Ogden Bass, Page 2, (M-163)
cases cited therein.
A-repeal by implication will be adjudged only if this
result is inevitable or was~plainly intended by the Legislature;
Parshall v. State, 138 S.W. 759 (Tex.Crim. 1911); Berry v. State,
156 S.W. 626 (Tex.Crim. 1913); Texas & M.O. Ry. Co. v. Kelso,
250 S.W.2d 426 (Tex.Civ.App., 1952, error ref., n.r.e.1.
House Bill No. 780, Acts 60th Legislature, Regular Session,
Chapter 475, p. 1082, among other things, amended Article 30,
Vernon's Penal Code, so that said article now provides:
"Art. 30. Children not punishable.
“Sec. 1. No person may be 'convictedof any
offense, except perjury, which was committed
before he was 15 years of age; and for per-
jury only when it appears by proof that he
had sufficient discretion to understand the
nature and obligation of an oath.
"Sec. 2. No male under 17 yeare of age and
no female under 18 years of age may be con-
victed of an offense except perj~uryunless
the juvenile court waives jurisdiction and
certifies the person for criminal proceedings.
"sec. 3. No person who has been adjudged a
delinquent child may be convicted of any
offense alleged in the petition to adjudge
him a delinquent'child or any offense with-
in the knowledge of the juvenile judge as
evidenced by anything in the record of the
juvenile proceedings."
Section 1 of Article 30, as amended, clearly prohibits the
conviction of a person for any offense committed before he was
fifteen years of age except perjury, and then only upon proof that~ ._
he had sufficient discretion to understand the nature .and obli- ,, ,i.;,’
gation of an oath. Consequently, children under fifteen years
of age cannot be held responsible for a misdemeanor except
through proceedings in the juvenile court. However, we do
not believe that this inhibition applies to children fifteen
years of age or over.
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Hon. Ogden Bass, Page 3, (M-163)
House Bill 780, only amended Sections 3, 5, 6, 12 and
13 of Article 2338-1, Vernon's Civil Statutes. The changes
made in Sections 12 and 13 have no bearing on your questions.
The only change in Section 3 of Article 2338-1, Vernon's
Civil Statutes, was in the first sentence and the phraseology
was changed, without a change in meaning. Section 5 of Article
2338-l both before and after the amendment provides that the
juvenile court has exclusive original jurisdiction in pro-
ceedings governing any delinquent child. Itis alear that
the juvenile court does not have jurisdiction of a child
who commits a misdemeanor where the punishment is by fine
only, unless such child habitually commits a violation of
such law.
In House Bill 780 the Legislature amended both Article
2338-1, a civil statute, and Article 30, a penal statute. In.
the caption of the Act, it was stated that the Act related only
to certain offenses and gave the juvenile court exclusive
jurisdiction in certain cases. In the purpose clause of the
Act, the Legislature stated that it intended to give the juvenile
court exclusive jurisdiction in cases where children were be-
low the age'of fifteen years; provide a procedure for the
juvenile court to waive jurisdiction in cases involving
children over,fifteen years of age; and to prevent proceedings
against a child in both the juvenile court and in the district
court. In our opinion, it was the intent of the Legislature
to make exclusive provision only for children over fifteen
years of age who came within the jurisdiction of the juvenile
court. Since they are both part of the same Act, the amend-
ments to Article 30, must necessarily be construed with sub-
section (b) of Section 6 of Article 2338-l which provides:
"(b) If a child is charged with the violation
of a penal law of the grade of felony and was
fifteen years of age or older at the time of
the commission of the alleged offense, the
juvenile court may, within a reasonable time
after the alleged offense, waive jurisdiction
by following the r,equirementsset out in
Subsections (c) through (j) of this section,
and transfer the child to the appropriate
district court or criminal district court
for criminal proceedings."
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Hon. Ogden Bass, Page 4, (~-163)
Construing together these provisions of House Bill 780,
it is our opinion that the Legislature intended only to pre-
vent prosecution of children fifteen years of age or over
when the juvenile court has jurisdiction of the offense
committed by such children. We are strengthened in this position
because House Bill 788, effective the same date, amended Article
802e, Vernon's Penal Code, to require the appearance of the
parents of the child in open court when he was being prosecuted
under the provisions of that Act. The entire statute was not
re-enacted. Certainly the Legislature did not intend to amend
the law, by adding an additional provision to a statute which
it had repealed by implication.
For a number of years, male children nine years of age
or over and under seventeen years of age and female children
nine years of age or over and under eighteen years of age have
been required to appear and answer misdemeanor charges, not
involving punishment by confinement in jail, and if found
guilty have been fined in accordance with the penal laws of
this state. We do not believe that the Legislature intended
to change the law in this respect as to male children over
fourteen years of age and under seventeen years of age, and
female children over fourteen years of age and under eighteen
years of age and to allow such children who commit misde-
meanor offenses not punishable by confinement in jail, to
avoid all restrictions imposed by law and to escape the
consequences of their act.
Although Article 30, as amended, prohibits the trial of
children under fifteen years of age in any court other than a
juvenile court for any offense, no attempt has been made to
repeal any other existing laws. Consequently,:the present
laws of arrest, search, and seizure have in no manner been
affected.
In answer to your question Number (2), it is our opinion
that House Bill 788 precludes those children charged with
violations under Article 802e from disposing of their cases
without a personal appearance in open court. We are of the
further opinion that House Bill 788 requires that one or both
parents or guardians be present during all proceedings in the
case unless this requirement is waived by the court in those
cases in which, after diligent effort, the court is unable to
locate them or to compel their attendance. The judgment should
recite that one or both of the child's parents or guardians
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Hon. Ogden Bass, Page 5, (M-163)
appeared at the trial. It is our further opinion that it would
be advisable to recite such facts in the judgment to minimize
subsequent attack on appeal on this issue. Of course, if the
parents or guardians did not appear, the court should recite
those facts which caused the court to grant the waiver of this
requirement.
Articles 42.15 and 45.50, both of Vernon's Code of Criminal
Procedure, provide that upon conviction in a criminal case
where the defendant is only fined, that the defendant be committed
to jail until such time as said fine and costs are paid. Article
802e, Section 2, provides:
"No such minor, after conviction or plea
of guilty and imposition of fine, shall
be committed to any jail in default of
payment of the fine imposed, but the
court imposing such fine shall have
power to suspend and take possession
of such minor's driving license and
retain the same until such fine has
been paid."
It is the opinion of this office that said Section 2 of Article
802e is controlling over both Articles 42.15 and 45.50 and that
the child who does not pay his fine and court costs when con-
victed of an offense set forth in Article 802e should be handled
in accordance with the provisions of Article 802e and may not
be committed to jail in accordance with the provisions of
Articles 42.15 and 45.50.
Since Article 42.16, Vernon's Code of Criminal Procedure,
deals only with those cases in which punishment is other than
by fine, and since the punishment prescribed by Article 802e
is by fine only, Article 42.16 is not applicable to convictions
obtained under Article 802e.
SUMMARY
H. B. 780, Chapter 475, 60th Legislature, Regular "
Session, 1967, Page 1082, amending Article 2338-1,
Vernon's Civil Statutes md Article 30, Vernon's
Penal Code, prevents the conviction of children
under the age of fifteen years for the commission
of any offense except perjury, but does not
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Hon. Ogden Bass, Page 6, (M-163)
prevent trial and conviction of children fifteen
years of age and older. The statutes relating to
arrest, search and seizure are not affected by
these amendments.
Ii.B. 788; Acts 60th Legislature, Regular
.Session, Chapter 476, Page 1086, requires the
presence of a child tried under the provisions
of Article 802e and also requires the appearance
of the 'child'sparents or guardians unless this
is waived by the court in accordance with the
provisions thereof.
In the case of the conviction of a child
under the provisions of Article 802e, the judgment
must recite the fact that the child appeared
in person in accordance with Article 42.01,
Vernon's Code of Criminal Procedure. Although
not mandatory, it is advisable for the judgment
to also recite the fact that the child's parents
or guardians appeared in court or, in the case
of the waiver of their appearance by the court,
the fact of such waiver and reasons therefor.
truly yours,
Prepared by Robert E. Owen "
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
w. V. Geppert
Sam Kelley
Lonny Zwiener
John Banks
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
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