Untitled Texas Attorney General Opinion ( 1972 )

Honorable Oscar B. McInnis Opinion No. M-1057
Criminal District Attorney
Hidalgo County Courthouse Re: Is an operator's license
Edinburg, Texas subject to automatic sus-
pension under Article ~6687
(b), Section 24 V.C.S.,
when the holder of the
license is convicted of
D.W.I. subsequent offense,
802 V.P.C., but the imposi-
tion of sentence is suspended
and he is placed on probation
under the provisions of the
adult probation act, Article
Dear Mr. McInnis: 42.12, V.C.C.P.?
You have requested an opinion of this office on the fol-
lowing question rephrased:
Is the operator's license subject to auto-
matic suspension under Article ~6687(b), Section
24, V.C~.S.,when the-holderof~the license is
convicted of D.W.I., subsequent offense, 802
V.P.C. but the imposition of sentence is suspend-
ed and he is placed on probation under the pro-
,vision~of the adult probation Act, Article 42.12,
V.C.C.P.?
Article 6687(b), Section 24, Vernon's Civil Statutes pro-
vides as follows:
"Section 24(a) The license of any person
shall be automatically suspended upon final
conviction of any of the following offenses:"
“2 Driving a motor vehicle while under
the influence of intoxicating liquor or narcotic
drugs."
-5160-
. -
Honorable Oscar McInnis, page 2 (M-1057)
Article 6687(b), Section 25(c) was amended by the 61st
Legislature, September 1; 1969, eliminating that portion
thereof which provided that if the courts suspended the sentence
such suspended-sentence would.not mitigate against the sus-
pension of operator's license so that Section 25(c) now reads
as follows:
"(c) For the purpose of this Act,
the term "conviction" shall meana final
conviction. Also, forthe purpose of this
Act, a forfeiture of~bail or collateral
deposited.to secure a defendant's appear-
ance in Court, which forfeiture has not
been vacated, shall be equivalent to a
conviction."
In construing the term "final conviction" as used in
Article 6687(b), Section 24 the courts have held that "final
conviction" is a judgment of conviction from which a motorist
has exhausted.his right to appeal. Hays v. Texas Department
of.Public Safety, 301 S.W.2d 276 (Tex. Civ. App. 1957);
.
Allen v. Texas Department of Public Safety, 411 S.W.Zd 644
(Tex. Civ. App. 19661. A conviction and grant of probation
under Article 42.12, is a final judgment which is appealable
even.though sentence is probated, Gossett v. State, 252, S.W.
2d 59, 162 Tex. Crim. App. 52 (1953);~Pitts v. State, 442
S.W.Zd 389, 390 (Tex. Crim. 1969). The fact that the judg-
ment may be subject to being,set aside as provided in Section
7 of the Adult Probation Act, makes it no less a final con-
-5161-
Honorable Oscar McInnis, page 3 (M-1057)
viction as any other conviction subject 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 - and Allen cases and in an
attempt to harmonize if possible Article 6687(b), Section
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; itwould 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.
The Legislature has the.right and power to enact statutes
for the protection of the general public traveling the high-
ways of Texas and to require that the privilege of maintain-
ing an operator's license be~atfendent with some obligations
and responsibilities. Gaytan.v..Cassidy, 317 F. Supp. 46 (W.
D., Tex., 1970); Gillespie v. Texas Department of Public
Safety, 152 Tex. 459, 259 S.W.2d 177 (1953), Cert.Den. 347
U.S. 933. In Article 6687(b), Section 24, the automatic
suspension of a driver's license is.solely for the protection
of the public using the highways. The action is not penal in
nature. Cooley v,.Texas Department of Public Safety, 348
S.W.Zd 267 (Tex. Civ. App.,.l961); Troutman v. Texas Depart-
-5162-
. . .
Honorable Oscar McInnis, page 4 (M-1057)
ment of Public Safea, 416 S.W.2d 539 (Tex. Civ. App. 1967):
1
Davison v. State, 313 S.W.2d 883, (Tex. Crim., 1958).
When the purpose of a statute is ascertained the signif-
icance of the words used may be restricted or enlarged in
order to effectuate that~purpose and to give the statute the
meaning which the law makers manifestly intended. Texas and
N.
- 0. R. Company v. Railroad``Commission,145 Tex. 541, 200
S.W.Zd 626 (1947). Considering the primary object of Article
6697 (b), Section 24,.and the consequence of a contrary con-
struction, it is reasonable.to conclude that the Legislature
intends that a person twice convicted of the offense of
driving.while intoxicated, even though probated, is subject
to the automatic suspension of,his operator's license. Art.
6687(b). Sec. 24.
The mere omission by the Legislature of the language of
Section 25(c), paragraph 2, -can by no rule of statutory
construction be construed to mean that the Legislature intended
that the conviction and probationunder Article 42.12 not re-
yuire.an automatic suspension of the operator's license where
an express legislative ,provisionmandates the suspension.
Accordingly, a person convicted of D.W.I. second offense
where the sentence is probated under the.terms of the Adult
Probation Act- Article 42.12, V.C.C.P., is subject to having
his operator's license automatically suspended.
-5163-
. . . .
Honorable Oscar McInnis, page 5 (M-1057)
SUMMARY
A person convicted of D.W.I. subsequent
offense where the sentence is probated under
the terms of the Adult Probation Act, Article
42.12, V.C.C.P., is subject to having his
operator's license automatically suspended.
Art. 6687(b), Sec. 24, V.C.S.
7
Very truly yours,
Prepared by Guy C. Fisher
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Lonny Zwiener
Jack Sparks
Bill Flanary
Bob Lattimore
SAM MCDANIEL .
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-5164-