Must a Texas municipal court report a juvenile's drug paraphernalia conviction to DPS?

Plain-English summary

The chair of the House Committee on Juvenile Justice and Family Issues asked the AG whether any statute requires municipal courts to report juvenile convictions for drug paraphernalia offenses to the Texas Department of Public Safety. The practical problem: municipal courts typically report all of their convictions to the Department, but when they tried to report juvenile drug paraphernalia convictions, the Department refused them and sent them back with a note to reclassify the convictions as "delinquent conduct." The chair questioned both the Department's authority to reject the reports and a municipal court's authority to relabel a juvenile's criminal conviction as delinquent conduct.

The AG started with jurisdiction. A municipal court can hear juvenile penal cases (other than traffic) only for offenses punishable by fine only; it has no jurisdiction over offenses punishable by confinement. Conduct other than a traffic offense that violates a penal law and is punishable by confinement is "delinquent conduct," and juvenile courts have exclusive jurisdiction over that. Possession of drug paraphernalia is a Class C misdemeanor punishable by fine only, so it is within a municipal court's jurisdiction and is not delinquent conduct. (The opinion noted that delivery of paraphernalia is a higher-level offense punishable by confinement, which a municipal court could not hear, so it read the question as about the fine-only possession offense.)

On reporting, the AG was not aware of any statute requiring a municipal court to report a juvenile's conviction for possession of drug paraphernalia to the Department. The Department maintains two statewide criminal-records databases, the Juvenile Justice Information System and the Computerized Criminal History System, and courts may have duties to report certain drug convictions to populate them, but neither database is required to hold fine-only misdemeanors. The AG then walked through the driver's-license-suspension reporting statutes and showed none applies: section 521.342 expressly excludes fine-only misdemeanors for juveniles, and the section 521.372(a) categories (a federal Controlled Substances Act offense, a "drug offense" defined as possession of a federally controlled substance, and certain Health and Safety Code felonies) do not cover possession of paraphernalia, in part because federal law prohibits the sale or transport of paraphernalia but not its possession. With no database-maintenance duty and no license-suspension duty, the AG concluded state law does not require municipal courts to report these convictions, and the Department is not required to accept them. Because nothing required the report, the AG did not need to reach the chair's follow-up question about how such convictions should be reported.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting representative (as the opinion described it): The opinion answered that it was not aware of any statute requiring municipal courts to report to the Department a juvenile's conviction for the fine-only misdemeanor of possession of drug paraphernalia, and that having so concluded it did not reach the remaining question about how such offenses should be reported.

Municipal courts handling juvenile paraphernalia cases (as the opinion described them): The opinion explained that possession of drug paraphernalia is a fine-only Class C misdemeanor within a municipal court's jurisdiction and is not delinquent conduct, and that no statute requires the court to report such a juvenile conviction to the Department.

The Department of Public Safety (as the opinion described it): The opinion stated that state law does not require the Department to collect or retain fine-only misdemeanor records in either the JJIS or the CCHS, and that no statutory authority requires the Department to accept reports of these convictions.

Common questions

Does a municipal court have to report a juvenile's drug paraphernalia conviction to DPS?
Under this opinion, no. The AG found no statute requiring a municipal court to report a juvenile's conviction for possession of drug paraphernalia to the Department of Public Safety.

Is possession of drug paraphernalia "delinquent conduct"?
No. The opinion explained it is a Class C misdemeanor punishable by fine only, so it falls within a municipal court's jurisdiction and is not delinquent conduct, which involves offenses punishable by confinement.

Why won't the state databases take these convictions?
The opinion said neither the Juvenile Justice Information System nor the Computerized Criminal History System is required to collect fine-only misdemeanors, so a fine-only paraphernalia conviction is not part of what those databases must retain.

Does this conviction suspend a juvenile's driver's license?
No. The opinion concluded possession of drug paraphernalia does not fall within any of the driver's-license-suspension categories, partly because federal law does not make mere possession of paraphernalia an offense.

Did the AG say how these convictions should be reported instead?
No. The opinion said that because no statute requires the report, it did not need to address the separate question of how municipal courts should report such offenses.

Background and statutory framework

A municipal court may exercise jurisdiction over juveniles for non-traffic penal offenses only when the offense is punishable by fine only, and has no jurisdiction over offenses punishable by confinement (Tex. Gov't Code §§ 29.003(b), 29.003(b)(2), (c); Tex. Fam. Code § 51.08(b)). Non-traffic conduct violating a penal law and punishable by confinement is "delinquent conduct," over which juvenile courts have exclusive jurisdiction (Tex. Fam. Code §§ 51.03(a)(1), 51.04(a)). Possession of drug paraphernalia is a Class C misdemeanor punishable by fine only and is not delinquent conduct (Tex. Health & Safety Code § 481.125(a), (d); Tex. Penal Code § 12.23). Delivery of paraphernalia, by contrast, is a higher offense punishable by confinement and outside a municipal court's criminal jurisdiction, so the opinion read the question to concern the fine-only possession offense (Tex. Health & Safety Code § 481.125(b), (c), (e), (f); Tex. Penal Code §§ 12.21, 12.35).

The AG found no statute requiring a municipal court to report a juvenile's possession-of-paraphernalia conviction to the Department. The Department maintains the Juvenile Justice Information System and the Computerized Criminal History System (Tex. Fam. Code §§ 58.101-.113; Tex. Code Crim. Proc. arts. 60.01-.21), and courts may have duties to report certain drug convictions to maintain them (Tex. Code Crim. Proc. art. 60.05; Tex. Fam. Code § 58.108), but neither database is required to hold fine-only misdemeanors (Tex. Fam. Code § 58.104(a); Tex. Code Crim. Proc. art. 60.05). The Department's administrative rules likewise do not require collecting fine-only misdemeanor information (37 Tex. Admin. Code §§ 27.54, 27.101(c)).

The driver's-license statutes also impose no duty here. Courts must report convictions that result in license suspension (Tex. Transp. Code §§ 521.342, 521.372(a), 521.347(b)), but possession of paraphernalia does not cause suspension. Section 521.342 excludes fine-only misdemeanors from juvenile license suspension (Tex. Transp. Code § 521.342(a)), and none of the three section 521.372(a) categories applies: a federal Controlled Substances Act offense (paraphernalia possession is not a federal offense) (Tex. Transp. Code §§ 521.371(a), 521.372(a)(1); 21 U.S.C. § 863(a)); a "drug offense" meaning possession of a federally controlled substance (Tex. Transp. Code §§ 521.372(a)(2), 521.371(a); 23 U.S.C. § 159(c)); and certain Health and Safety Code felonies, which do not reach misdemeanors (Tex. Transp. Code § 521.372(a)(3)). So state law does not require municipal courts to report these convictions for database maintenance or license suspension, and the Department need not accept them; the AG therefore did not reach how such offenses should be reported. The opinion noted a juvenile court has separate authority to suspend a juvenile's license (Tex. Fam. Code § 54.042(f)), and that on contempt a municipal court reports the contempt order, not the underlying offense, to effect a suspension (Tex. Code Crim. Proc. art. 45.050(c)(2)(B); Tex. Transp. Code § 521.3451).

Citations

Statutes:

• Tex. Gov't Code §§ 29.003(b), 29.003(b)(2), (c)
• Tex. Fam. Code §§ 51.08(b), 51.03(a)(1), 51.04(a), 58.101-.113, 58.104(a), 58.108, 54.042(f)
• Tex. Health & Safety Code § 481.125(a), (b), (c), (d), (e), (f)
• Tex. Penal Code §§ 12.23, 12.21, 12.35
• Tex. Code Crim. Proc. arts. 60.01-.21, 60.05, 45.050(c)(2)(B)
• Tex. Transp. Code §§ 521.342, 521.342(a), 521.372(a), 521.372(a)(1), 521.372(a)(2), 521.372(a)(3), 521.371(a), 521.347(b), 521.3451
• 21 U.S.C. § 863(a)
• 23 U.S.C. § 159(c)
• 37 Tex. Admin. Code §§ 27.54, 27.101(c)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0150
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0150.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 31, 2017

The Honorable Harold V. Dutton, Jr. Opinion No. KP-0150
Chair, Committee on Juvenile Justice
and Family Issues Re: Whether municipal courts are authorized
Texas House of Representatives to report juvenile convictions for drug
Post Office Box 2910 paraphernalia offenses to the Texas Department
Austin, Texas 78768-2910 of Public Safety (RQ-0143-KP)

Dear Representative Dutton:

    You ask whether any statutory authority requires municipal courts to report juvenile convictions for drug paraphernalia offenses to the Texas Department of Public Safety ("Department"). [1] You inform us that municipal courts typically report all convictions to the Department. Request Letter at 1. When municipal courts attempt to report juvenile drug paraphernalia convictions, however, you tell us the Department refuses acceptance and returns the reports with the "notation to change the listing of these convictions to the delinquent conduct category." Id. You question both the Department's authority to reject the reports and a municipal court's authority to classify juvenile criminal convictions as delinquent conduct. Id.

     We begin with a review of the jurisdiction of municipal courts pertaining to juvenile criminal conduct. A municipal court may under certain circumstances exercise jurisdiction over juveniles for penal offenses other than traffic violations, but the jurisdiction extends only to criminal offenses punishable by fine only. See TEX. GOV'T CODE § 29.003(b) (jurisdiction of municipal court over criminal cases arising under State law); TEX. FAM. CODE § 51.08(b) (circumstances in which municipal court may exercise jurisdiction over juvenile offender). Municipal courts have no jurisdiction over juvenile offenders for offenses punishable by confinement. See TEX. GOV'T CODE § 29.003(b)(2), (c) (excluding offenses punishable by confinement from municipal court's jurisdiction). Rather, a juvenile's conduct—other than a traffic offense—that violates a penal law of this State and is punishable by confinement constitutes "delinquent conduct," and juvenile courts have exclusive jurisdiction over cases involving delinquent conduct. TEX. FAM. CODE §§ 51.03(a)(1) (defining delinquent conduct), 51.04(a) (vesting juvenile courts with exclusive jurisdiction over cases involving juveniles engaged in delinquent conduct). With respect to drug paraphernalia charges, municipal courts only have jurisdiction over juveniles for the offense of possession of drug paraphernalia, which is a Class C misdemeanor punishable by fine only and does not constitute delinquent conduct. See TEX. HEALTH & SAFETY CODE § 481.125(a), (d) (defining offense of possession of drug paraphernalia); TEX. PENAL CODE § 12.23 (penalty range for Class C misdemeanor convictions). [2]

    Regarding the reporting requirements for this offense, we are not aware of any statute requiring a municipal court to report to the Department juvenile convictions for possession of drug paraphernalia. While Texas law does require courts to report certain drug-related convictions to the Department, no statute of which we are aware requires municipal courts to report juvenile convictions for this particular offense. Under the Family Code and Code of Criminal Procedure, the Department is responsible for maintaining two statewide computerized databases containing criminal records, the Juvenile Justice Information System (JJIS) and the Computerized Criminal History System (CCHS). See generally TEX. FAM. CODE §§ 58.101-.113 (JJIS); TEX. CODE CRIM. PROC. arts. 60.01-.21 (CCHS). Courts may have a duty to report to the Department certain drug-related convictions for the purpose of maintaining these databases. See, e.g., TEX. CODE CRIM. PROC. art. 60.05 (requiring CCHS to contain disposition of cases by courts for certain offenses); TEX. FAM. CODE § 58.108 (requiring juvenile courts to report certain data to the Department to maintain JJIS). State law does not, however, require the Department to collect or retain criminal records—for either database—related to misdemeanors punishable by fine only. See TEX. FAM. CODE § 58.104(a) ("[T]he [JJIS] shall consist of information relating to delinquent conduct committed by a juvenile offender that, if the conduct had been committed by an adult, would constitute a criminal offense other than an offense punishable by a fine only ...."); TEX. CODE CRIM. PROC. art. 60.05 (requiring CCHS to contain "information for each arrest for a felony or a misdemeanor not punishable by fine only"). [3]

    The Transportation Code may additionally require courts to report to the Department certain drug-related convictions affecting a person's driver's license. See TEX. TRANSP. CODE §§ 521.342, 521.372(a) (listing convictions resulting in license suspension); see also id. § 521.347(b) (requiring courts to report to the Department convictions for offenses resulting in license suspension). Municipal courts have no duty, however, to report juvenile convictions for possession of drug paraphernalia for this purpose, as conviction of this offense does not result in the suspension or denial of a juvenile's driver's license. See id. §§ 521.342, 521.372(a) (listing convictions resulting in license suspension). Rather, the Transportation Code contains two provisions requiring the suspension of a juvenile's license for conviction of certain drug-related offenses, neither of which requires license suspension for conviction of possession of drug paraphernalia. [4] See id. §§ 521.342, 521.372(a).

     First, section 521.342 provides that the conviction of a person under the age of 21 for certain drug-related offenses will result in license suspension, but the provision specifically excludes "misdemeanor[s] punishable by fine only" from the list of offenses resulting in license suspension for juveniles. See id. § 521.342(a). In addition to this provision, section 521.372(a) lists three categories of drug-related offenses resulting in license suspension for any person. Id. § 521.372(a). The first category resulting in license suspension is conviction of an offense under the federal Controlled Substances Act. Id. §§ 521.371(a), 521.372(a)(1). However, as possession of drug paraphernalia is not an offense under this federal law, this provision does not apply. See 21 U.S.C. § 863(a) (Controlled Substances Act prohibiting the sale or transportation of drug paraphernalia but not creating an offense for possession). The second category resulting in license suspension is conviction of a "drug offense," defined, in relevant part, as possession of a substance prohibited under the federal Controlled Substances Act. See TEX. TRANSP. CODE §§ 521.372(a)(2), 521.371(a) (defining "drug offense" as having the meaning assigned under 23 U.S.C. § 159(c)); 23 U.S.C. § 159(c)(2) (defining "drug offense," in relevant part, as any criminal offense proscribing the "possession ... [of] any substance the possession of which is prohibited under the Controlled Substances Act"). Again, as federal law does not prohibit the possession of drug paraphernalia, this provision is also inapplicable. See 21 U.S.C. § 863(a). Finally, convictions for certain felonies under the Health and Safety Code will also result in license suspension, but this provision has no applicability to misdemeanor offenses. See TEX. TRANSP. CODE § 521.372(a)(3). Possession of drug paraphernalia, therefore, does not fall within any of the categories requiring license suspension. [5]

    Accordingly, State law does not require municipal courts to report to the Department juvenile convictions for possession of drug paraphernalia for the purpose of maintaining the State's criminal history databases or for license suspension purposes. Beyond these provisions, we are not aware of any other statutory authority requiring a municipal court to report or the Department to accept reports of such convictions. [6] Having so concluded, we need not address your remaining question regarding how municipal courts should report such offenses to the Department.

                                SUMMARY

                 We are not aware of any statute requiring municipal courts to report to the Texas Department of Public Safety juvenile convictions for the misdemeanor offense of possession of drug paraphernalia.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Harold V. Dutton, Jr., Chair, House Comm. on Juvenile Justice & Family Issues, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 21, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] In addition to the offense of possession, State law also creates an offense for the delivery of drug paraphernalia that is a Class A misdemeanor or state jail felony, depending on circumstances, and punishable by fine and/or confinement in jail. See TEX. HEALTH & SAFETY CODE § 481.125(b), (c), (e), (f); see also TEX. PENAL CODE §§ 12.21, 12.35. As a municipal court's criminal jurisdiction over cases arising under State law does not extend to offenses punishable by confinement, we assume your reference to "drug paraphernalia convictions" refers to convictions for the Class C misdemeanor offense of possession punishable by fine only. See TEX. HEALTH & SAFETY CODE § 481.125(a), (d).

[3] Consistent with these statutes, the Department's administrative rules pertaining to these databases also do not require the collection or retention of information related to misdemeanors punishable by fine only. See 37 TEX. ADMIN. CODE §§ 27.54 (2017) (Tex. Dep't of Pub. Safety, Types of Info. Collected in the Juvenile Justice Info. Sys.) ("[T]he [JJIS] shall consist of information relating to delinquent conduct committed by a juvenile offender that, if the conduct had been committed by an adult, would constitute a criminal offense other than an offense punishable by fine only."), 27.101(c) (Tex. Dep't of Pub. Safety, Comput. Crim. History Sys.) ("Local law enforcement and criminal justice agencies must report, and the department must retain, the information required by Texas Code of Criminal Procedure, Chapter 60.").

[4] A juvenile court has additional statutory authority to suspend a juvenile driver's permit or license. See TEX. FAM. CODE § 54.042(f).

[5] If a juvenile fails to obey an order of a municipal court, the court may hold the child in contempt and order the Department to suspend the contemnor's driver's license or permit until the contemnor fully complies with the court's orders. TEX. CODE CRIM. PROC. art. 45.050(c)(2)(B). To effectuate the suspension, however, the court reports the contempt order—rather than the underlying offense—to the Department. See TEX. TRANSP. CODE § 521.3451 (providing that Department shall suspend license upon receipt of contempt order).

[6] A brief submitted by the Texas Juvenile Justice Department likewise concludes that State law does not require municipal courts to report juvenile drug paraphernalia convictions to the Department. See Brief from Jill Mata, Gen. Counsel, Tex. Juvenile Justice Dep't at 3 (Jan. 10, 2017) (on file with the Op. Comm.).