Untitled Texas Attorney General Opinion ( 1984 )

The Attorrwy General of Texas
Decsmbcr 13. 1984
JIM MATTOX
Attorney General
.
Supretnr cowl sullaq HonorAble ChArlc6 IhrAn6 Opinion No. ``-250
P. 0. Soa 12546 chairmsn
Aurtln. lx. 76711.2548 House Admiaistrnti~x~ Conanittce Re: Whether the TEXAS Department
51v475.2561 TEXAS House of Rep n?sentAtives of Public Snfety nay probate the
Telcl Sltm74.1~7
P. 0. Box 2910 6U6p6,,6iOtl Of A driver’s liCeUSe
Tal4copier 5121475-0255
AuStin, Tt?XAS 18149 of A perAott who ha6 been con-
victed of driving while lntoxi-
714 Jackson.Suite 7W CAtSd AS 6 result Of A breath
Dcllar. 7X. 752024505 tC6t r6fUSAl
2141742.5944
DeAr Representntivc Evsne:
4824Alberta Are.. Sutle ((10
El Paso. TX. 7-2793 You hAve Askc!d two questions Concerning the SuPpAnSiOn of A
915i533.3464 person’s driver’s license in connection with PreAeCUtiOn fcr driving
while intoxicAtcd. You first Ask whether the TeXAA Department of
001Taxas. Suite 700 Public SAfety [her~cinafter DPS] May suspend the license of A person
Houston. TX. 77002.3111 convicted of drivjr:g vhlle intoxicated [hereinAfter DUI] And plAced on
713122X1655 probation followiu#l such conviction if the fndivfdual has been found
on Appeal to h6m refused A breath teAt. Such proceedings Are
AepArAte And di:rtinct from crlminsl proceeding6 under the DWI
806 Broadway.Suita 312
StAtUteA. Secondly. you ARk vhether the depertment r&y suspend A
Lubbock. 7X. 794014479
6Q6l747.5235 driver’s &zense tthen A person hA6 been convicted of DUI by A jury And
such A jury recooocndA that his license not be suspended, despite An
Affirmative f%ndinS of A brecrth test refussl.
4308 N. Twtth. Suit. 6
MCAIW. 7x. 7wo1.1665
50662.4547 Article 67011-5. V.T.C.S., govern6 the Adoini6trAtfon of breath
test6 And the SUtl``eUSiOn Of liC6nSe6 for rSfUAAl6 t0 tAke the s(Lme.
SeCtiOU Z(b) retpire6 that An Arresting officer AdViSe A person
200 MaIn Plaza. wc4 4ca Arrested for WI thrt refusal to submit to t~he test my raut1.t In the
San Antonlo. TX. 752052797
driver’6 license being “AUtOCUttiCAlly suspended for 90 days . . .
512!2254191
whether or not L!1@?person 16 subsequently prosecuted AA A result of
the Arrest.” Upon refusA1. ot A request to submit to A breath test,
An Equ*tOpportuniwl the Arresting officer Is required by section 2(E) to imm6diAtely make
*ttirm*tiw Actlon EmPloy*r A written report t:o the DPS. Upon receipt of the report the director
of DFS is reqUird to suspend the perzlon’s 1icenAe for 90 dAyS after
the perAon 16 notified of his right to An AdministrAtive hearing on
the bresth test t,efusal. V.T.C.S. Art. 67011-S. 12(f).
The person wko refuses the brcrth test nnd is notified by the DPS
that hjs license ~111 be suspended has A right to request an adminis-
trative hearing. At these hearings the court is required to order the
6Usp6nSiOn of the license If it finds thrt there was probsble cAus6
for the DWI arrerit. that the person WAS given An opportunity te submit
P. 1117
.
Honorsbls ChArleA gVAn6 - PASC 2 (311-250)
to A brerth test. And thAt he refused. Id. SZ(f). Section 2(f)
provide6 further thAt these AdmiAiAtrAtlVehcAringS on breeth test
refuAAls ars required to be “set in the 6Ame m6nnAr AS 6 hesrlng under
Section 22(a)” of Article 6’587b. V.T.C.S. Thur, when the DPS is
informed by A driver ChAt the driver desires An AdministrAtive
heAring. the DPS is required to set such csse in ACCOrdAnC6 with the
provisions of section 22(~). article 6687b.
Section 22(~) vest6 jurlsdictlon of these Administrative hrnringr
in municlpsl uyors And judges, or justices of the peecc And provide6
in part:
Sec. 22. (A) . . . Such hearing 6hAll be had
net less thAn ten (10) dAy6 After nOtifiC6tiOn to
the licensee or operator under Any of the ,
provisions of thi:a section. And upon charge6 in
writing. A copy of which Shall be given to said
operator or 1icen:we not less than ten (10) days
beforc said hSAril@;, except AS otherwise provided
by this 6ubsectioP. For the purpose of heAring
such csses, jurisdiction IA vested in the mayor of
the city. or judge of the policr court, or A
Justice of the Peace in the county where the
operator or licensee resides . . . It shall be the
duty of the court to set the matter fur heerlng
upon ten (IO) days’ written notice to the
Department . . . Ilotice by registered mail to the
Address ShOWI on th,e licsnse of the liCenSe6 shall
constitute rervilrt? for the purpose of this
section. . . .
Article 670114, section Z(f). incorporates Article 6687b.
section 22(~). only for the purpose of determining the msnner in vhich
breAth t66t refusal CAsea 6re “Set.” Article 67011-S does not
iacorporste other provtolons of article 6687b. portions of vhich
provide for the probAtion elf license suspension, which ve believe do
not hAve Anything to do with the “setting” of the AdminiStrStivA
hearing. See V.T.C.S. Art,. 6607b. 522(e) (Authority t0 prObAte
1icenAe rcv~tion or 6U6pl!Il6iO,,). There iA no provision in either
Article 67011-5 or 6687b. W!(A) which provide6 for the probation of a
license suspension for the failure to submit to A brerrth test.
Attorney General Opinion II-1201 (1978). concluded thst Article
67011-S fncorporAted the pr,JbAtfon PrOViAiOtlA of article 6687b. We
believe that this opinion m:l6constn~ed the StAtutea And it is hereby
overruled. In 1983. the l~?l!islature amended article 67011-S to make
it clear that suspension of a driver’s lice@se for refusal to take e
brearh test i6 An entirely Separate matter from the penoltles And
procedures of Article 66i)‘rb (a. uai~ning that suspension will
aUtOmtiCAlly take place rl?l;ardless of “whether or not the person is
subsequently prosecuted AS a result of the arrest” section Z(b);
p. 1118 .
deletion of pertiwnt part of old leccion Z requiring telnrtetewnt of
suspended llccnee when pcrron found “not guilty” of DUI). Thun. the
auapenaion at iesue here ia apparently intended LO be a purely civil
penalty. Attorney General Opinion U-1201 z have been incorrect
under the old lansuaugc; It i# eY)re clearly incorrect under the rwnded
languege. UC conclude, in anaver to your questlone, char the
suspcnaion of a driver’s llcenae for failure co submit to l hrerth
true may not be probated notvit:hatanding the fact that a conviction in
a different court of a DUI offenre may have resulted in a probated
oeutence or the fact that t”llt jury follovinng a DUI coovlctioc haa
tecolmaended that the liernee wt bo ewpended.
The suspension of a driver’s license for
failure to rubnit to l brenth test mey not be
probated.
.Irn MATTOX
Attorney General of Texas
TOM GREEN
First Assirtant Attorney Cenc!ral
DAVID R. RICHARDS
Executive A#siMant Attorney General
RICK CILPIN
Cheirwn. Opinion Conmilttec
Prepared by Rick Cilpfn
Assistent Attorney General
UPROVED:
OPINIONCOMMITTEE
Rick Cilpin. Chairman
Colin Cerl
Susan Garrison.
Tony cui110ry
Jim Hoellinger
Jennifer Riggs
Nanry Sutton
P. 1119