Untitled Texas Attorney General Opinion ( 1970 )

June 24, 1970
Honorable Joe D. Meroney Opinion No. M- 653
County Attorney
Freestone County Re: Questions regarding proceed-
Teague, Texas 75860 ings in Justice Court for
suspension of license follow-
ing operator's refusal to sub-
Dear Mr. Meroney: mit to chemical breath test.
Your request for an opinion concerns hearings conducted
before a justice of the peace under the provisions of Article
802f, Vernon's Penal Code, and Article 6687b, Section 22(a),
Vernon's Civil Statute~s,for the purpose of suspending the
license of an operator who has refused to submit to a chemical
breath test, and presents the following questions:
1. Is it the duty of the county attorney to represent
the state in these matters?
2. Must the person representing the State of Texas be
a licensed attorney7
3. Would the licensee have the right to file a plea of
privilege?
Article 802f, V.P.C., provides, generally, that a person
arrested for the offense of driving while intoxicated is deemed
to have given his consent to a chemical breath test. Upon his
refusal to submit to such a test, the Department of Public
Safety may suspend such operator's driving privileges for a
period as ordered by the Court, not exceeding one year, follow-
ing a hearing (as provided in Art. 6687b, Sec. 22(a), V.C.S.)
before the mayor of the city , or judge of the police court,
or a justice of the peace in the county or subdivision thereof
where the operator or licensee resides upon a finding "that
probable cause existed that such person was driving or in
actual physical control of a motor vehicle on the highway while
under the influence of intoxicating liquor at the time of the
arrest by the officer."
Article V, Section 21 of the Texas Constitution imposes
the following duty upon county attorneys:
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Hon. Joe D. Meroney, page 2, (M-653 )
"The County Attorneys shall represent the
State in all cases in the District and in-
ferior courts in their respective counties:*
However, it is well settled that license suspension hear-
ings provided by section 22(a) of Article 668733,are admin-
istrative proceedings, Drake v. Texas De t. of Public safet ,
393 S.W.2d 320 (Tex.Civ.App. 1965, error- v.
Texas Dept. of Public Safety, 413 S.W.Zd 470 (Tex.Civ.App. 1967,
no writ); Prince v. Garrison, 248 S.W.Zd 241 (Tex.Civ.App. 1952,
no writ), ana concern the administrative and regulative power
vested in the department, Texas Department of Public Safety
v. Richardson, 384 S.W.Zd 128, 132 (Tex.Sup. 1964).
These hearings are semi-judicial in nature, King v. Texas
Department of Public Safety, 362 S.W.Zd 131, 133 (Tex.Civ.App.
1962). reversed on other srounds. 366 S.W.?d 215 (Tex.Sup.
1963); and the designated-magistrates act in the capacie of
administrative agents for the purpose of making affirmative
findings of fact, not as judicial tribunals or courts. State
Dept. of Public Safety v. Cox, 279 s.w.2a 661 (Tex.Civ.Am955,
error ref. n.r.e.).
Finding no authority imposing a prescribed duty upon the
county attorney to represent the state in these administrative
proceedings, we answer your first question in the negative; how-
ever, the county attorney may represent the interests of the
state in such matters if he chooses, although he is not required
t0 a0 SO. See Howth v. Greer, 90 S;W. 211