Untitled Texas Attorney General Opinion ( 1966 )

Honorable Michael garney Opinion No. C-665
County Attorney
Ector County Re: Whether a plea of
Odessa, Texas nolo contendere
entered in justice or
corporationcourt,
will be admissible in
a later proceeding to
revoke a defendant's
driver's license on
the ground that the
defendant is a habitual
Dear Mr. Earney: violator.
In your opinion request you state:
"My question is: Will pleas of nolo
contendere entered in Justice and Corporation
Courts to traffic violations be admissible in
a later proceeding to revoke the driver's li-
cense as a habitual violator under Article
6687b? ”
In the opinion which you submitted with your request
you state:
"The new Code of Criminal Procedure,
Artic'
le 2 14 provides for pleas of nolo
contender335n Justice and CorporationCourt
cases. The article reads as follows:
"IA plea of "guilty"or a plea of "nolo
contendere" in a misdemeanorcase may be made
either by the defendant or his counsel in open
court..,;*
'?Phenew Code sets out the effect of
a plea of nolo contendere in Article 27.02,
Section 6, which reads as follows:
"1. ..6. A plea of nolo contendere. The
legal effect of such plea shall be the same as
that of a plea of guilty, but the plea may not
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Honorable Michael Earney, page 2 (C-665 )
be used against the defendant as an admission
in any civil suit based upon or growing out
of the act-upon which the oriminal prose-
cution is based; ....I
“The question Immediatelyarises whether
or not the above provisions would allow successive
pleas of nolo contendere to defeat the revocation
of a defendant‘sdriver*s license under Article
6687b, Vernon's Annotated Civil Statutes-on
-rounds that the driver is a habitual violator
of the traffic laws. Particularattention should
be given to the fast that the language of Article
6687b, Vernon's Annotated Civil Statutes, speaks
ine language of convictions."
Although the Texas courts have not passed upon the
exact question which you ask, there have been two Texas court
decisions in cases which are very similar in nature to this
One case State v. Ea'Tes,109 S.W.2d 167 (Tex.
````be``p~ 1937). Dealt with the disbarment of an attorney
after a plea of "nolo contendere"in the Federal court. The
other case, Goldman-v,State, 277 S.W.2d 217 (Tex. Clv. App.
2’ 1954, error ref., nze.),dealt with the suspension of the
license of a medical practitionerafter he had been convicted
of a felony offense in the Federal court upon a plea of
"nolo contenderec.
Although Rule 11 of the Federal Rules of Criminal Pro-
cedure, which provides for pleas of nolo contendere in Federal
court, has no provision similar to Section 6 of Article 27.02
wherein it is provided that the plea of nolo contendere may
not be used against the Defendant as an admission In any civil
suit based upon or growing out of the action upon which the
criminal prosecutionIs based, the Federal courts have long
construed the plea In this manner. See Bell v. Commission
of Internal Revenue, 320 F.2d 953 (8th Cir,, 1963), where it
was held that the only distinguishablefeature between a plea
of "nolo contendere"and that of "gn.lltynis that the plea of
"nolo contendere"cannot be used against the Defendant as an
admission in any civil suit for the same act.
In the Estes case the Court said at page 171 of 109
S.W.2d:
"The next oontention made by the
respondent is that he was not convicted within
the intent and meaning of article 311 He urges
in this connection that he entered a ljleaof
nolo contendere in the federal court case in which
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Honorable Michael Earney, page 3 (c-665 )
he was charged with the commission of a
felony, and that such plea, when accepted
by the prosecutingattorney, becomes an
implied confession of guilt and is equiv-
alent to a plea of guilty for the purpose
of that case only and cannot be used against
the defendant as an admission of guilt in
any civil suit for the same act.
"If it be granted that the plea
entered by the respondent does not oreate an
estoppel and that he is at liberty to re-
litigate the fact of his guilt or innocence
in another case, it avails nothing in this
case. The term 'conviction'referred to in
the statute is not restricted to a convic-
tion procured upon entry of a particular
plea by the accused in the case in which the
convictionwas had. The issue raised by the
relators in the second count of the petition
is whether respondent had been 'convictedof
a felony' as alleged. It appears from the
recitations of the judgment in evidence that
he was convicted. No contention is made that
the offense for which he was convicted was
not a felony, nor is the issue of guilt or
innocence involved in this proceeding."
In the Goldman case at page 222 of 277 S.W.2d, the Court
followed the Testescase and said:
'Appellantfurther contends that a
Federal Court judgment based upon a plea of
#nolo contenderei cannot constitute a con-
viction upon which a suit for revocation of
a medical license can be maintained. As
previously stated appellant was convicted
as charged in a 12-count indictment upon his
plea of *nolo contendere'and sentenced to
pay a fine of $5,000, which the record con-
clusively shows he paid. The punishment
for conviction of a single violation of
the Harrison Narcotic Act under the Federal
Code is a fine of not to exceed $2,000 or
imprisonmentfor not more than five years
or both. Appellant was convicted under an
indictment containing12 counts. His con-
viction was therefore a felony under both
the Federal Code and the Texas law. 18 U.S.C.A.,
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Honorable Michael Earney, page 4 (C-665 )
Sec. 1; Rowers v. State, 155 Tex. Cr. R.
401, 235 S.W.2nd 449; Article 47, Tex.
Penal Code.
"Appellantcscontention here made that
a convictionin the Federal Court upon a plea
of ‘nolo contendere'cannot and does not fur-
nish a legal basis .forrevocation of his medi-
cal license is wholly refuted by an opinion in
a similar cape handed down by the Commissionof
Appeals and adopted by the Supreme Court in the
case of State v. Estes, 130 Tex. 425, 109 S.W.
2d 167, except that Estes was disbarred as a
lawyer, The accused there contended that his
plea of 'nolo contendere"to a Federal Court
charge could not support a judgment of con-
viction such as would disbar him as a lawyer.
The court there held, in effect, that a con-
viction is not restrictedbecause of any kind
of a particularplea of the accused. Since
the judgment in evidence showed him convicted,
such was sufficientas a basis for disbarment."
Article 6687b, Section 22 (b), Subsection 4, Vernon's
Civil Statutes, provides in part:
"The term Ihabitualviolator' as used
herein, shall mean any person with four or
more convictionsarising out of different trans-
actions in a consecutiveperiod of twelve (12)
months, or seven (7) or more convictionsarising
out of different transactionswithin a period
of twenty-four (24) months, such convictions
being for moving violations of the traffic laws
of the State of-Texas or its political sub-
divisions...."(Emphasisadded.)
It is the opinion of this office that, for purposes of said
Article 6687b, Section 22 (b), Subsection 4, it is immaterial
whether the convictionwas obtained after a plea of "guilty",
"not guilty”, or "nolo contendere"by the Defendant.
SUMNARY
A convictionfor a traffic violation
upon a plea of nolo contendere may be used under
Article 6687b, Section 22(b), Subsection 4,
Vernon's Civil Statutes, to show that a person
is an habitual violator of the traffic law of
the State of Texas.
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. .
Honorable Michael Earney, page 5 (c-665 )
Yours very truly,
WAGGONER CARR
REO/er
APPROVED:
OPINION COMMITTEE
w. 0. Shultz, Chairman
Ralph Rash
Philllp Crawford
Howard M, Fender
Sam Kelley
APPROVED FOR THE ATTORNEY GENERAL
By: T. B, Wright
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