Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
April 11. 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Joe Warner Bell Opinion No. JM-146
P. 0. BOX 12546 Trinity County Attorney
Austin. TX. 78711.2546
P. 0. Box 878 Re: Whether a person arrested
51214752501
Groveton, Texas 74845 prior to January I, 1984, for
Telex 9101874-1367
Telecopier 51214750266 driving while intoxicated may
be granted a deferred judgment
after January 1, 1984
714Jackson, Suite 700
Dallas,TX. 75202.4506
2141742.6944 Dear Mr. Bell:
You have requested that this office determine the effects of
4624Alberta Ave., Suite 160 recent amendments to article 42.13, section 3d of the Code of Criminal
El Paso, TX. 79905-2793
Procedure on defendants in driving while intoxicated [hereinafter DWII
915l533.3464
misdemeanor actions involving a violation of article 67011-1, V.T.C.S.
Prior to amendment, article 42.13, section 3d authorized courts to
p 01 Texas, Suite 700 "defer further proceedings without entering a" adjudication of guilt"
,ous,on, TX. 77002-3111 in any misdemeanor case. See Attorney General Opinion MW-133 (1980).
713/223.5666 The amendments to which you refer remove misdemeanor DWI actions from
the scope of section 3d. Article 42.13, section 3d, as amended by
606Broadway, Suite 312
Senate Bill No. 1 of the Sixty-eighth Legislature, provides in
Lubbock, TX. 79401.3479 relevant part:
CVN747.5236
(a) Except as provided by Subsection (d) of
4309 N. Tenth. Suite B
this section when in its opinion the best interest
,&Allen, TX. 76501.1605 of society and the defendant will be served, the
5121662-4547 court may, after receiving a plea of guilty or a
plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant's
200Main Plaza, Suite 400
San Antonio. TX. 76205.2797
guilt, defer further proceedings without entering
512/225-4191 a" adjudication of guilt and place the defendant
on probation for a period as the court may
prescribe, not to exceed the maximum period of
An Equal Opportunity/
imprisonment prescribed for the offense for which
Affirmative Action Employer
the defendant is charged.
. . . .
(d) This section does not apply to a defendant
charged with a" offense under Subdivision (21,
Subsection (a). Section 19.05. Penal Code, or an
offense under Article 67011-l. Revised Statutes,
as amended.
,. f
Honorable Joe Warner Bell - Page 2 (JM-146)
Acts 1983, 68th Leg., ch. 303, 516, at 1594, 1595. The above
amendments to article 42.13, section 3d took effect on January 1,
1984. See Acts 68th Leg., ch. 303, 929, at 1607. You ask whether a
court maygrant a deferred judgment to a defendant who is charged with
a misdemeanor prior to January 1, 1984 but whose case comes to trial
after January 1, 1984. We conclude that it can.
Statutes should be read as a whole and should be construed to
give meaning and purpose to every part. Ex parte Pruitt, 551 S.W.2d
706, 709 (Tex. 1977). It is apparent from the entirety of Senate Bill
No. I that the legislature clearly intended to initiate stronger
measures to deal with offenses involving intoxicated drivers. Section
16 of Senate Bill No. 1, quoted above, limits the court's power to
grant deferred adjudications in DWI cases. Section 28 of Senate Bill
No. 1 articulates the intended scope of the act:
(b) The changes in law made by this Act for the
punishment of an offense under Article 67011-l.
Revised Statutes, ss amended, apply only to the
punishment for an offense committed on or after
the effective date of this Act. For purposes of
this section, an offense is committed before the
effecti.vedate of this Act only if any element of
the offense occurs before the effective date.
(c) An offense committed before the effective
date of this Act is covered by the law in effect
when the offense was committed, and the former law
is continued in effect for this purpose.
(d) Article 5.03-l. Insurance Code, applies
only for convictions of offense that occur after
the effective date of this Act.
Acts 1983, 68th Leg., ch. 303, 928, at 1607.
It is our opinion that the amendments contained in section 16 of
Senate Bill No. 1, which deny to defendants in DWI actions the
deferred judgment provisions of article 42.13, section 3d. do not
apply to violations that occurred before the effective date of the
act. According to section 28, the law at the time the offense was
committed controls. The pre-amendment article 42.13, section 3d
permitted deferred judgments in misdemeanor DWI actions, and it is
that version of article 42.13 that will control in any trial
proceeding that may result from a pre-1984 DWI charge.
Our conclusion comports with the constitutional prohibition
concerning the passage of ex post facto laws. Tex. Const. art. I,
§16. One Texas court has defined an ex post facto law as follows:
p. 629
. .
Honorable Joe Warner Bell - Page 3 (``-146)
Any law is an ex post facto law which inflicts a
greater punishment than the law annexed to the
crime when committed, or which alters the
situation of the accused to his disadvantage.
Ex parte Alegria, 464 S.W.2d 868, 872 (Tex. Crim. App. 1971).
A defendant who was charged with a misdemeanor DWI under article
67011-1, V.T.C.S. before January 1, 1984 was elegible for a deferred
adjudication under article 42.13, section 3d; i.e. a deferred judgment
was an available punishment "annexed to the crime when committed."
Under the amendments in section 16 of Senate Bill No. 1, a deferred
adjudication is not available to a defendant charged with a
misdemeanor DWI. To remove from a defendant who was charged before
the passage of Senate Bill No. 1 the possibi.lityof being granted a
deferred adjudication would certainly alter the position of the
accused to his disadvantage.
SUMMARY
The amendments to article 42.13, section 3d of
the Code of Criminal Procedure contained in Senate
Bill No. 1, Acts of the Sixty-eighth Legislature,
chapter 303 at 1594, which prohibit courts from
granting a deferred adjudication to a defendant
charged with a misdemeanor DWI under article
67011-1, V.T.C.S., do not apply to defendants who
were charged prior to the January 1, 1984
effective date of the amendments.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
p. 630
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Honorable Joe Warner Bell - Page 4 (JM-146)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Ji,mMoellinger
Nancy Sutton
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