Can a Texas justice of the peace court handle underage drinking cases?

Plain-English summary

The head of the Texas Alcoholic Beverage Commission asked the Attorney General which court can try the most common minor-and-alcohol offenses: a minor buying alcohol (section 106.02), a minor consuming alcohol (section 106.04), and buying for or furnishing alcohol to a minor (section 106.05). Specifically, could a justice of the peace court hear them? The answer turned out to be no, but for a reason that has nothing to do with the size of the fine.

The first worry was the money. In 1991 the legislature raised the maximum fine for repeat violations of these sections from $500 to $1,000, and an old Code of Criminal Procedure provision (article 4.11) tried to cap justice courts' criminal jurisdiction at offenses punishable by a $500 fine. The Attorney General brushed that aside: the Texas Constitution (article V, section 19) gives justice courts jurisdiction over misdemeanors "punishable by fine only" with no ceiling on the fine, and the legislature cannot shrink a court's constitutional jurisdiction by statute. So the $1,000 maximum was not a problem; article 4.11's cap was unconstitutional and void.

The real obstacle was a different sanction. Section 106.115 lets a court, on a minor's first conviction under these sections, order the defendant to take an alcohol awareness course in addition to the fine, and on a second or later conviction the court must order it. The constitution gives justice courts jurisdiction only over misdemeanors "punishable by fine only." The office read that phrase strictly: the fine has to be the only possible sanction. It drew on an 1876 decision, Tuttle v. State, where the old Texas Court of Appeals read a similar limitation into an earlier version of the provision and held that justice courts had no jurisdiction whenever something besides a pecuniary fine (there, jail) could be imposed. Following that strict reading, and noting that the policy reason is to make the legislature act deliberately before expanding these informal courts' reach, the office concluded that because an alcohol awareness course is a sanction other than a fine, and the legislature had not given justice courts jurisdiction over cases where such a sanction is available, justice courts could not hear prosecutions under sections 106.02, 106.04, and 106.05.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The jurisdiction of justice courts and the Alcoholic Beverage Code's minor-offense provisions have been amended several times since 1995, and the legislature has at times specifically addressed which courts hear these cases. Read this page for the office's strict reading of "punishable by fine only" as it stood in 1995, and check current statutes and later authority before relying on where one of these cases must be filed today.

What the opinion meant for those who asked

For the Alcoholic Beverage Commission and prosecutors: The opinion concluded that prosecutions under sections 106.02, 106.04, and 106.05 could not be brought in justice court, because the available alcohol-awareness-course sanction took them outside the "punishable by fine only" jurisdiction. The higher $1,000 fine, by contrast, was no barrier.

For justice courts and justices of the peace: The opinion treated the constitutional "fine only" limit as strict; if any non-fine sanction (even a nonpunitive one like an awareness course) is possible, the justice court lacks jurisdiction unless the legislature has expressly granted it.

For anyone tracking which statutes were affected: The office noted its answer reached the related offense of attempted purchase by a minor (section 106.025) as well, on the fine-range point.

Common questions

Could a justice of the peace court hear an underage drinking or minor-purchase case?
No. The Attorney General concluded justice courts lacked jurisdiction over sections 106.02, 106.04, and 106.05 because those sections allow an alcohol awareness course, a sanction other than a fine.

Wasn't the problem the $1,000 fine?
No. The office said the constitution gives justice courts jurisdiction over fine-only misdemeanors with no limit on the fine amount, so the raised maximum did not matter, and the statute trying to cap it at $500 (article 4.11) was unconstitutional and void.

Why does an alcohol awareness course change the answer?
Because the constitution limits justice-court jurisdiction to misdemeanors "punishable by fine only." The office read that to require the fine to be the sole possible sanction, and an awareness course is an additional, non-fine sanction.

Did it matter that the course is not really a punishment?
No. The office said the strict reading applies regardless of whether the additional sanction is considered punitive or nonpunitive.

Background and statutory framework

Article V, section 19 of the Texas Constitution gives justice of the peace courts original jurisdiction in criminal matters over misdemeanor cases "punishable by fine only," plus such other jurisdiction as the legislature provides. The office first disposed of the fine-amount concern: because the constitutional grant carries no cap on the fine, the 1991 increase of the maximum fine to $1,000 (Acts 1991, 72d Leg., ch. 163, §§ 1-3) did not exceed justice-court jurisdiction, and the attempt in Code of Criminal Procedure article 4.11 to limit that jurisdiction to $500 fines was void because the legislature cannot restrict a court's constitutional jurisdiction (citing the office's own Attorney General Opinion DM-277 (1993)).

The dispositive issue was the alcohol awareness course authorized by Alcoholic Beverage Code section 106.115, which a court may order on a first conviction and must order on a later conviction under sections 106.02, 106.04, or 106.05. To read "punishable by fine only," the office looked to history. From 1876 until a 1985 amendment, section 19 spoke of cases where the penalty or fine "may not be more than for two hundred dollars," and in Tuttle v. State, 1 Tex. Ct. App. 364, 366 (1876), the old Texas Court of Appeals read into that language a requirement that the penalty be a pecuniary fine alone, holding that whenever imprisonment could be assessed as an alternative or part of the penalty, justice courts had no jurisdiction. The office applied the same strict approach to the current "fine only" language, extended it to any non-fine sanction whether or not punitive, and added a policy rationale: a strict reading forces the legislature to act deliberately before adding to these informal courts' jurisdiction. It therefore concluded that the awareness-course sanction in section 106.115 removed sections 106.02, 106.04, and 106.05 from justice-court jurisdiction.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. V, § 19 (justice-court jurisdiction over misdemeanors "punishable by fine only")
• Alco. Bev. Code §§ 106.02, 106.04, 106.05 (minor purchase, consumption, and furnishing offenses); § 106.115 (alcohol awareness course); § 106.025 (attempted purchase by a minor, noted in a footnote)
• Code Crim. Proc. art. 4.11 (purported $500 cap on justice-court criminal jurisdiction; held void)
• Acts 1991, 72d Leg., ch. 163, §§ 1-3 (raising the maximum fines)

Case discussed:

• Tuttle v. State, 1 Tex. Ct. App. 364, 366 (1876) (strict reading of justice-court criminal jurisdiction)

Attorney General opinions discussed:

• DM-277 (1993) (legislature cannot restrict a court's constitutional jurisdiction)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0320
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0320.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

February 6, 1995

Mr. Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
P.O. Box 13127
Austin, Texas 78711-3127

Opinion No. DM-320

Re: Whether justice courts have jurisdiction of prosecutions for violations of sections 106.02, 106.04, and 106.05 of the Alcoholic Beverage Code (RQ-651)

Dear Mr. Bailey:

You ask us two questions regarding Alcoholic Beverage Code ("code") sections 106.02, 106.04, and 106.05. Section 106.02 prohibits the purchase of an alcoholic beverage by a minor. Section 106.04 generally prohibits the consumption of an alcoholic beverage by a minor. Finally, section 106.05 generally prohibits the purchase of alcohol for, or the furnishing of alcohol to, a minor. The Seventy-second Legislature amended these sections to change the range of fines assessable for subsequent convictions under these sections from a minimum of $100 and a maximum of $500 to a minimum of $250 and a maximum of $1,000. See Acts 1991, 72d Leg., ch. 163, §§ 1-3.[1]

You first ask whether the justice courts have jurisdiction of prosecutions for subsequent violations of these three sections in spite of the new fine ranges. Our state constitution grants to justice courts original jurisdiction of all misdemeanor offenses that are "punishable by fine only," without limitation as to fine amount, "and such other jurisdiction as may be provided by law." Tex. Const. art. V, § 19. Article 4.11 of the Code of Criminal Procedure, however, purports to limit the criminal jurisdiction of justice courts to crimes punishable by a maximum fine of $500. This purported limitation is unconstitutional and void because the legislature has no power to restrict the constitutional jurisdiction of the district courts and the inferior courts. E.g., Attorney General Opinion DM-277 (1993) at 3. Therefore, the new maximum fines of $1,000 under sections 106.02, 106.04, and 106.05 do not exceed the justice courts' jurisdiction.

Although the maximum fines do not eliminate the justice courts as potential forums, we still cannot determine the ultimate question of whether these courts have jurisdiction of prosecutions under the subject code sections until we consider your second question, which involves another aspect of justice court criminal jurisdiction. You ask whether the imposition of an alcohol awareness course by a justice court pursuant to code section 106.115 constitutes a "punishment" that would deprive the court of jurisdiction by exceeding the constitutional jurisdictional limitation to misdemeanors "punishable" solely by fine, Tex. Const. art. V, § 19.[2] Section 106.115 provides, in pertinent part:

(a) On the first conviction of a minor of an offense under Section 106.02, 106.04, or 106.05 of this code, the court, in addition to assessing a fine as provided by those sections, may require the defendant to attend an alcohol awareness course approved by the Texas Commission on Alcohol and Drug Abuse or a similar alcohol awareness course approved by the court . . .

(b) If the conviction under Section 106.02, 106.04, or 106.05 of this code is for a second or subsequent offense, the court shall require the defendant to participate in an alcohol awareness course in addition to paying the fine assessed under that section . . . .

Your question assumes that the constitutional grant of criminal jurisdiction of misdemeanors "punishable by fine only" includes offenses for which the court may impose nonpunitive sanctions, such as (we will assume for the sake of argument) alcohol awareness courses. For the following reasons we believe that the constitutional grant of jurisdiction includes only offenses the sole sanction for which is a fine and therefore that the justice courts do not have jurisdiction of violations of sections 106.02, 106.04, and 106.05.

From the adoption of the constitution in 1876 until the amendment of the jurisdictional provision to its current language in 1985, section 19 of article V provided in pertinent part as follows: "Justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than for two hundred dollars . . . ." Tex. Const. art. V, § 19 historical notes. Although this provision lacked any limitation similar to the current one of "punishable by fine only," the old Texas Court of Appeals in 1876 read the limitation into the provision:

[T]he framers of our organic law intended only to confer upon justices' courts . . . jurisdiction in cases where the penalty was by pecuniary fine alone, not to exceed the limit specified. Imprisonment in the county jail cannot be estimated in dollars, nor can it be considered in any manner a pecuniary fine. It follows, therefore, in the opinion of this court, that whenever, in misdemeanors, imprisonment may be assessed as an alternative or as a part of the penalty to be imposed, justices' courts have no jurisdiction to try. Of course this rule is not to be understood as applicable to, or interfering in any manner with, the authority of such courts to imprison for the non-payment of fine and costs, or, when necessary, to assert, protect, and enforce their authority in cases where their jurisdiction properly obtains.

Tuttle v. State, 1 Tex. Ct. App. 364, 366 (1876).

We believe the Texas Court of Appeals' foregoing strict reading of the justice courts' former constitutional jurisdiction warrants a similar strict reading of the current provision in regard to jurisdiction of offenses for which there is a sanction in addition to, or in the alternative to, a fine, regardless of whether that sanction may be considered to be nonpunitive. We further believe a strict reading of the constitutional jurisdiction also is good policy. Section 19 of article V delegates authority to the legislature to grant additional jurisdiction to the justice courts. Therefore, a strict reading will ensure that the legislature will act deliberately in granting additional jurisdiction to the justice courts only in matters that are suited to the informality of justice court proceedings. Therefore, we conclude that section 19 of article V of the constitution grants jurisdiction to justice courts in criminal matters in which the only possible sanction is a fine and, accordingly, that the justice courts do not have jurisdiction of prosecutions under sections 106.02, 106.04, and 106.05 of the Alcoholic Beverage Code because those sections provide for the nonfine sanction of alcohol awareness education and because the legislature has not granted to the justice courts jurisdiction of prosecutions in which such a sanction may be imposed.

SUMMARY

Section 19 of article V of the Texas Constitution grants jurisdiction to justice courts in criminal matters in which the only possible sanction is a fine. Therefore, the justice courts do not have jurisdiction of prosecutions under sections 106.02, 106.04, and 106.05 of the Alcoholic Beverage Code because those sections provide for the nonfine sanction of alcohol awareness education and because the legislature has not granted to the justice courts jurisdiction of prosecutions in which such a sanction may be imposed.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] A first-time violation of any of these code sections is punishable by a fine ranging from $25 to $200. See Alco. Bev. Code §§ 106.02(b), .04(c), .05(c).

We note that the Seventy-third Legislature added a new section 106.025, which creates the offense of attempted purchase of an alcoholic beverage by a minor. See Acts 1993, 73d Leg., ch. 934, § 776. A subsequent violation of section 106.025 also is punishable by a fine ranging from $250 to $1,000 (the first-time fine range is $25 to $200). Alco. Bev. Code § 106.025(b), (c). Our answer to your first question applies as well to this statute.

[2] The constitutional provision for justice court jurisdiction is as follows: "The justice of the peace courts shall have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only, exclusive jurisdiction in civil matters where the amount in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by law. Justices of the peace shall be ex officio notaries public."