Untitled Texas Attorney General Opinion ( 1965 )

Honorable R. A. Stalllngs Opinion No. C-515
County Attorney
Port Rend County Re: Whether the operator's
Richmond, Texas license of a defendant granted
probation under the provisions
of the Misdemeanor Probation
Law of 1965 for the first
offense of driving a motor
vehicle while,intoxicatedis
Dear Mr. Stallings: automaticallysuspended.
In your opinion request you ask if a driver's license is
automaticallysuspended when a person has been convicted of the
misdemeanor offense of driving while intoxicated,first offense,
and has been granted probation under the terms of the Misde-
meanor Probation Law of 1965, Acts 1965, 59th Leg:, Ch. 164,
p. 346. This question presupposes that said Misdemeanor Pro-
bation Law of 1965 applies to driving while intoxicated,first
offense, and that a person convicted of said offense is eligible
for probation under the terms thereof.
Section 3(a) of said A&provides in part as follows:
"A defendant who has been found
guilty of a misdemeanorwherein the
maximum permissible punishment is by
confinement in jail or by a fine in
excess 0-0 may be granted proba-
tion If:
II
. . ." (Emphasis added)
Adherence to the strict letter of this provision would mean that
misdemeanor probation,may be granted only where the maximum
permissible punishment is (I) by confinement in jail or (2) by
a fine in excess of $200, and that when both confinement in jail
and a fine are permitted or required, the Act would not apply.
The purpose of the Misdemeanor Probation Law of 1965 was
to extend the benefits of probation to those persons convicted of
certain misdemeanor offenses. Heretofore, the benefits of pro-
bation have been available only to those persons convicted of
felony offenses. Section 3(a) of said Act was put in as a
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c
Hon. R. A. Stallings,page 2 (C-515)
bottom limit for the granting of probation so that probation
could only be granted to those persons convicted of misdemeanor.
o?fenses of a more serious nature and to prevent our courts from
being cluttered with probation requests in mere trivial matters.
If a strict interpretationof this Act is made, however,
then we will arrive at an absurd and unjust result. First,
Section 3(a) would allow a hiatus from probation for lesser
misdemeanor offenses to probation for felony offenses while no
probation could be given for more serious misdemeanor offenses.
The absurdity of such a strict construction is more apparent
in Sections 3(a)(2) and 3(c), for the strict interpretationof
these Sections would mean that a person who has previously been
convicted of a misdemeanor offense, wherein punishment by con-
finement In jail only is allowed, would not be eligible for
,futureprobation while a person who has previously been convicted
of a misdemeanor offense, wherein confinement in jail and a fine
of less than $200 is permissible,would be eligible fofpro-
bated sentence. Such a result would be one neither intended nor
anticipated by the Legislature and should not be attributed to
them.
In Magnolia Petroleum Co. v. Walker, 83 S.W. 929, our
Supreme court held:
II
'Where,however, the language
. . .
of the statute is of doubtful meaning,
or where ah adherence to the strict
letter would lead to injustice, to ab-
or to contradictoryprovisions,
SF%%
e u y devolves upon the court of as-
certaining the true meaning. If the
intentions of the Legislature cannot be
discovered, it is the duty of the court
to give the statute a reasonableconstruc-
tion, consistent with the general rin-
ciples of law.' 59 C.J., P. 957, f356%
Empire Gas & Fuel Co. v. State of Texas,
supra." (Emphasis added)
We, ,therefore,hold that the Misdemeanor Probation Law of
1965 applies to all misdemeanorswherein a permissible punish-
ment upon conviction is: 1) by confinement in jail; (2) by a
fine in excess of $200; (3f by confinement in jail plus a fine
of any amount.
We are further supported In our conclusion by the recent
decirion of the Supreme Court of Texas in Sweeny Hospital
Dirtrict v. Carr, 378 S.W.2d 40 (TexiSup.IgW) :
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- Ron. R. A. Stallings,page 3 (C-515)
“The courta of this state have
on occasion added worclsor phrases to
statutes when necessary to gtve effect
to legislativeintent,.. . .
Section k(a) of the Misdemeanor Probetion Laudof 1965 is
clear and unambiguous. It states:
“When a defendant is granted pro-
bation under the terms of this Act,
the finding of guilty does not become
final, nor may the COI11% render judg-
B-thereon, except as provided-in-
Section 6 of this Act.” (Emphasis
added) .
Article 6687b, Section 24(a)2, V.C.S., provides for the
automatic suspension of the license of any person upon final
conviction of driving a motor vehicle while undtr the mnce
of intoxicatingliquor or narcotic drugs.
Since the probated Judgment is not a final con?rSction,
the
driver’s license is not automaticallysuspended.
Section 6(b) provides:
“On the date the probation Is
revoked, the finding of guilty becomes
final and the court shall render judg-
ment thereon against the dtfendant....”
In the event that probation is revoked and the judgment
becomes final in accordance with this prOVlBiOn, tht dri%fSr’S
license is automaticallysuspended at such ,time.
We art not unmindful of tht provision of Article 668?b,
Soetlon 25(c), V.C.S., which reads as follows:
“For the purpose of this Act, the
term ‘conviction’shall meana finaT
conviction. Also, for the purpose of
Fhis Act, a forfeltur% of bail or collateral
deposited to secure a defendant’s appearance
in court, which forfeiture has not been
vacated, shall be equivalent to a conviction.
“Provided,however, that in case of
conviction for any of the offenses enumerated
in paragraph (a) of Section 24 of this Act,
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Hon. R. A. Stallings,page 4 (c-515)
and the sentence of the court having
been suspended as provided in the
Statutes, such suspended sentence shall
not mitigate against the suspension of
the operatorts,commercial operator's,
or chauffeur's license of the person
convicted." (Emphasisadded)
It is well settled that there is no sentence in a misde-
meanor case. Since this proviso applies only where the
sentence of the court is suspended, it has no application to a
misdemeanor case.
SUMMARY
A driver's license is not automaticallysus-
pended when a person is convicted of driving
while intoxicated,first offense, and placed
on probation under the terms of the Misdemeanor
Probation Law of 1965.
Yours very truly,
WAGGONER CARB
Attornev General of Texas
Assistant Attorney General
REO:sss
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. 0. Schultz
John Banks
Robert W. Norris
John Reeves
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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