Untitled Texas Attorney General Opinion ( 1959 )

EXAS
July 9, 1959
Honorable W. G. Woods, Jr. Opinion No. W-663
County Attorney
Liberty County Re': Is actual notice required
Liberty, Texas by Section 2(b) of Article
6701.11,
Vernon's civil
Statutes; does the ten day
period for filing appeals
from orders of the Depart-
ment of Public Safety
start at the time of the
Dear Mr. Woods: order or of the notice?
We have your letter regarding Seotion'2(b) of Article 670~1,Vernon's
Civil Statutes, the Safety Responsibility Law, in which you ask:
"I respectfully request a ruling fran your office
as to (1) whether actual notice to the party in iriterest
and/or aggrieved party is necessary and, if 80, (2) would
the ten (10) day limitation period for filing appeals from
acts or orders of the Department be computed from the
date of actual notice of the act or order."
Section 2(b) of Article 670x1 reads in part as follows:
"Any order or act of the Department, under the pro-
visions of this Act, may be subject to review within ten
(10) days after notice thereof, by appeal to the County
Court at Iaw at the instance of any party in interest
and in the county wherein the per&-ag&eved by such
order or act resides, or if there be no County~Court at
Law therein, then in the County Court of said county,
. . ." (Emphasis added)
The manner of notice required by the statute is not prescribed and no
provision is made in Article 6701.hfor constructive notice. In your aocompany-
ing brief, you conclude both questions should be answered in the affirmative.
We agree with your conclusions. Texas Department of Public Safety v. Hamilton,
304 S.W.2d 719 (Civ. App. 1957, error ref. n.r.e.) concerning Article 668/b,
Vernon's Civil Statutes, (the Driver's License Law), discusses the notice
z-eql.fdl%'n, -d-al 3.-ln'rv-tY~
'fLX,nrtrt:
. T-u-e
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2Tpp-fl``~%
here:
Honorable W. G. Woods, Jr., page 2 (WW-663)
"Section 28, supra, does not expressly provide for
notice but there la a presumption in the absence of ex-
plicit language to the contrary that the legislature intended
a valid and constitutional statute, and, therefore, intended
that due notice should be given. Indu6trialAccident Board
v. O'Dowd, Tex., 303 S.W.2d 763. Appellant concedes that no
notioe was given to Hamilton. Since an administrative agency
has no power to cancel or suspend a license without notice
the trial court properly set aside the'board's order suspending
his license. 1Tex. Jur.(Ten Yr. Supp.) 110."
qotioe" is usually defined as ". . . information concerning a fact
actually communicated . . ." (31Tex. Jr. 385, Notice, sec. 2.) Since
there is no provision in the instant statute for constructive notice, we
are of the opinion that actual notice of the department's order or act must
be given to the licensee.
The 0888 of Oliveira v. Department of Public Safety, 309 S.W.2d 557
(Civ. App. 1958) is authority for the oonclusion stated above, as well aa
for the proposition that the ten day period of limitation is calcuated from
the date of such notice. We quote from this case a8 follows:
"It is plain from the record that the Deparhnent performed
an 'act' on July 24, 1957 when it sent the notice to appellant.
It is plain also that the express words of the statute provide
for an appeal to the County Court at Law within.~ten days after
the notice of the 'act', not within ten aays after the effective
date of the order of suspension, a8 appellee contends."
Both of your questions are answered in the affirmative.
Se&ion 2(b), Article 6701h, Vexnon's Civil
Statutes, requires actual notice to the
liceneee of the Department's order of suspension,
and the ten day period in which to appeal is cal-
culated fram the date such notice is perfected.
Yours very truly,
WILL WIISON
Lm-&G?G?
Tom I. McFarling
TIM:zt:me Assistant Attorney General
Honorable W. G. Woods, Jr., page 3 (WW-663)
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
William E. Allen
Elmer McVey
C. Dean Davie
Marvin H. Brown, Jr.
REVIEWEDFORTHEA!l!TORNEX GEZiEBAL
BY: W. V. Geppert