Untitled Texas Attorney General Opinion ( 1980 )

. .
The Attorney General of Texas
January 29, 1980
MARK WHITE
Attorney General
Honorable Michael D. Meredith Opinion No. MW-133
Moore County Attorney
P. 0. Box 634 Re: Effect of amendments to
Dumas, Texas 79029 misdemeanor probation law on
suspenwon of driver’s licenses in
DWl cases.
Dear Mr. Meredith:
,~ : i ,_^,
You request our opinion on’the effect of the new RMikdeme&or Adult
Probation and Supervision Law,” Code of Criminal Procedure article 42.13
as enacted by Senate Bill 844, Acts 1979, 66th Leg., ch 654, at 1514, on the
provisiohs concerning the suspension of a person’s driver% license in Driving
While Intoxicated cases. Section 24(a) of article 6687b, V.T.C.S., provides in
relevant part:
(a) The license of any person shall be automatically
suspended upon final conviction of any of the
fOU?@ng offenses: ``,
,. . . .
2. Driving a motor vehicle while under the
influence of intoxicating liquor or narcotic
drugs.
Your question is whether a defendant in a case charging a violation of
article WOE-l, V.T.C.S. (misdemeanor DWI), who is placed on probation
under the provisions of the new article 42.13 of the Code of Criminal
Procedure has had a “final conviction” within the meaning of the quoted
provision.
Your concern arises from the legislature% repeal of section 4(a) former
Code of Criminal Procedure article 42.13 which provided:
Sec. 4. (a) When a defendant is granted probation
under the terms of this Act, the finding of guilt does
not become final, nor may the court render judgment
thereon, except as provided in Section 6 of this
Article [revocation of probation].
P. 425
Honorable Michael D. Meredith - Page TWO (Mw-133)
tb) The court shall record the fact and date that probation wss
granted on the docket sheet or in the minutes of the court. The
court shall also note the period end terms of the probation, and the
details of the judgment. The court’s records may not reflect a final
conviction, however, unless probation is later revoked in
accordance with Section 6 of this Article.
This section which was repealed, provided the basis on which numerous judicial
decisions and opinions of this office distinguished misdemeanor probation from felony
probation. See,.e.g., Savant v. State, 535 S.W.2d 190 (Tex. Crim. App. 1976); McIntosh VI
State, 534 S.W.2d 143 (Tex. Crim. App. 1976); Cob v. State, 518 S.W.Zd 829 ITex. Crim.
App. 1975); Ex arte Smith, 493 S.W.2d 959 e--- Tex. Cram. App. 1973); Standifer v. Texas
Department My 463 S.W.2d 38, 41 (Tex. Civ. App. - Houston t14th Dist.1
1971, no writ); Attorney Gene& Opinions H-ll28 (1978)i M-673 (1970); M-498 (1969); C-685,
C-626 0966); C-515 (1965).
While section 4 of fccmer article 42.13 expressly provided that there is no judgment
cc final conviction when a person received misdemeanor probation, the new article 42.13
repeatedly refers to misdemeanor probation in terms of a “conviction” except in section
,34 which provides for deferred adjudication of guilt. See sections 2(2), 3, 3a, 3c, 3e, 5,
6c, 7, ,d 8(a) and (b).
.~ -.:.‘~. _~. F..~ . _I,
Section 3 of new article 42.13 provides that the judges of’thecourts of this state
having original jurisdiction of criminal actions:
\:
. . . shall have the ‘power, after conviction nor a plea of guilty or
nolo contendere for any crime ‘or offense, where the punishment
assessed against the defendant is by confinement in jail or by fine
or by both such fine or imprisonment, to suspend the imposition of
the sentence and may place the defendant on probation . . . .
Section 3a provides that a jury may recommend probation “when there is a
conviction.*’
In Attorney General Opinion M-1057 (19721,’the question was posed as to whether sn
operator’s license was subject to automatic suspension when the person was convicted of
felony DWI, but imposition of sentence is suspended and he is placed on probation under
the provisions of article 42.12 of the Code of Criminal Procedure. .That opinion said:
In construing the term ‘final conviction’ as used in Article
6687(b), Section 24 the courts have heid that ‘final conviction’ is a
judgment of conviction from which a motorist has exhausted hi
right to appeaL Hays v. Texas Department of Public Safety, 301
S.W.2d 276 (Tex. Civ. App. 1957); Allen v. Texas Department of
411 S.W.2d 644 (Tex. Civ. App. 1966). A conviction
==-f
and grant o probation under Article 42.12, is a final judgment
which is appealable even though sentence is probated, Gossett v.
P. 426
.
Honorable Michael D. Meredith - Page Three (EN-1331
e, 252 S.W.2d 59, 162 Tex. Crim. App. 52 (1953); Pitts v. State,
442 S.W.2d 389, 390 (Tex. Crim. 1969). The fact that the judgment
may be subject to being set aside as provided in Section 7 of the
Adult Probation Act, makes it no less a final conviction as any
other conviction stiject to appeal, habeas corpus, executive pardon
or other collateral relief.
In view of the construction placed on ‘final conviction’ by the
state courts in the a and Allen cases and in an attempt to
harmonize if possible Article 668mSection 24, and Article 42.12,
in such a way as to give effect to each enactment, and avoid
conflicts between them 55 Tex. Jur.2d ‘Statutes’ Section 186, it
would appear that ‘final conviction’ as that term is used therein is a
judgment of conviction from which the person convicted and
probated under the terms of the Adult Probation Act has exhausted
his right to appeal.
Section 8(b) of new article 42.13 provides in part as follows:
. . . The right of the probationer to appeal to the Court of Criminal
Appeals for a review of the trial and conviction as provided by law
shall be accorded the ‘probationer at the time the defendant is
placed cm probation. . . .
See Steffen v. State, 525 S.W.2d 162 flex. Crim. App. 1975); B&on v. State, 511
S.W.2d8 (Tex. Crim. App. 1974); Fitzpatrick v. State, 458 S.W.2d 924 (Tex. Crim. App.
1970); and Pitts v. State, ,442 S.W.2d 389 (Tex. Crim. App. 1969); concerning application of
this same provisi,on in section 8 of articl, 42.12
‘:.
Since the new article 42.13 is clearly designed to parallel theprovisions of article
42.12, and since section 4 of former article 42.13 has been repealed, we believe that
Attorney General Opinion M-1057 @972), and the cases on which it was based require us to
answer your question in the same way: A “final conviction” as that term is used in section
24 of article 6687(b), V.T.C.S., is a judgment of conviction from which the defendant has
exhausted his right to appeal including the conviction of a person whose sentence has been
probated under the terms of sections 3 or 3a of the new Misdemeanor Adult Probation and
Supervision Law.
In reference to the effect of a conviction becoming final and the automatic nature
of section 24 of article 66874 V.T.C.S., this office said in Attorney General Opinion H-
1053 0977):
[IIf the in-state ‘conviction becomes final, the suspension is
automatic, whether a report of the conviction is sent to the
Department of Public Safety or not, whether or not the judgment
of conviction specifically provides for the suspension, and whether
p. 427
Honorable Michael D. Meredith - Page Pour (NW-133)
or not the defendant actually surrenders his license to the court.
No action by the court, the jury, or the Department of Public
Safety is necessary to bring the suspension into effect. Marley v.
w, 394 S.W.2d 516 (Tex. Crim. App. 1965); Standifer v. Texas exas
Loo.
-
Dept. of Public Safety, 463 S.W.2d 38 (Tex. Civ. App. - Houston
D4th Dist.1 1971, no writ); Texas Dept. of Public Safety v. Preble,
‘reble,
398 S.W.2d 785 (Tex. Civ. App. - Houston 1966, no writ); Gaddy
iddy v.
380 S.W.2d 783 (Tex. Civ. App.
&I. -
Eastland 1964, no writ); Hays v. Dept. of Public Safety, 301 S.W.2d
276 (Tex. Civ. App. - Eastland 1957, writ dism’d).
Even though probation imposed under sections 3 and 3a of article 42.13 requires suspension
of the individual’s driver’s license, section 3d establishes a different procedure for
probation. It provides in part:
Section 3d (a) When in its opinion the best interest of society
and the defendant will be served, the 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 guilt, defer further
proceedings without entering en adjudication of guilt and place
the defendant on probation on reasonable terms and conditions as
the court may require and for a period as the court may subscribe
not to ‘exceed the maximum period of impriscnment prescribed for
the offense for which defendant is charged. However, upon written
motion of the defendant requesting final adjudication filed within
30 days after entering such plea and the deferment of adjudication,
the court shall proceed .to final adjudication as in alI other cases. : /
(b) On violation of a condition or probation imposed under
Subsection (a) of this section, the defendant may be arrested and
detained as provided in Section 6 of this article. The defendant is
entitled to a hearing limited to a determination by the court of
whether it proceeds with an adjudication of guilty on the original
charge. No appeal may be taken from this determination. After an
adjudication of guilt, all proceedings, including assessment of
punishment, pronouncement of sentence, granting of probation, and
defendant’s appeal continue as if the adjudication of guilt had not
been deferred.
If a defendant in a misdemeanor case pleads guilty or nolo contendere and receives
probation from the court under section 3d(a), there would be~cconviction” within
the meaning of that term as used in section 24(a) of article 6687b, V.T.C.S., and there
would be no automatic suspension of the person’s driver’s license.
Section 3d of new article 42.13 is the same as that in section 3d of article 42.12 in all
pertinent respects. In Crutchfield v. State, 560 S.W.2d 685 (Tex. Crim. App. 1978),
defendant was placed on probation under section 3d(a) of article 42.12, which probation
p. 428
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Honorable Michael D. Meredith - Page Five (Mw-133)
was revoked for violation of probationary conditions. In this case the court noted the
similarity of the language of section 3d(a) and (b) of article 42.12 to section 4.12(a) and (b)
of article 4476-15, V.T.C.S., the Controlled Substances Act. The court quoted Richie v.
State, 542 S.W.2d 422, 424 (Tex. Crim. App. 1976) which construed section 4.12(a)and
asows:
Reading Subsections (a) and (b) together, it is apparent that no
judgment is to be entered at the time a conditional discharge is
granted but one must be entered at the time the conditional
discharge is revoked. In this regard the conditional discharge
procedures under Sec. 4.12, supra, are no different than the
misdemeanor probation procedures under Art. 42.13, Vernon’s
AM.C.C.P.
See also George v. State, 557 S.W.2d 787 (Tex. Crim. App. 1977) (order granting
conditional discharge under section 4.12 of article 4476-15, V.T.C.S., not a conviction).
Since there is no conviction nor a judgment evidencig a conviction when a person is
placed on probation under section 3d of new article 42.13, the effect of probation under
this provision is the same as it was under the previous misdemeanor probation provision
and there is no “final conviction” for purposes of section 24(a) of article 66874 V.T.C.S.
SUMMARY
A person convicted of misdemeanor DWI and whose sentence is
probated under the terms of section 3 or section 3a of the
Misdemeanor Adult Probation and Supervision Law, article 42.13,
Cods of Criminal Procedure, enacted by Senate Bill 844, Acts 1979,
66th Legislature, ch. 654, at 1514, is subject to having his operator’s
license automatically suspended under section 24, article 6687(b),
V.T.C.S.
A person who receives probation under section 3d of article
42.13, Code of Criminal Procedure, which provides for conditional
discharge on deferral of adjudication, is not stiject to having his
operator% license automatically suspended.
vewiYlkx*
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
p. 429
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Honorable Michael D. Meredith - Page Six (MN-133)
Prepared by William G Reid
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
Susan Garrison
William G Reid
p. 430