Untitled Texas Attorney General Opinion ( 1944 )

Honorable Ernest Guinn
county -Attorney
El Paso County
El Paso, Texas
Dear Sir: Opinion Ho. O-6052
Ret Rertoration of driver's
license of person oonvioted
of driving while intoxioated.
In 1,936the people of Texas approved an amendment to Article 4,
Section 11 of the Constitution, taking fromthe Governor the sole pardon-
ing power atiddividing the functions of that sovereign prerogative ba-
tween the Board of Pardons and Paroles and the Governor. Insofar as it
is pertinent to your inquiry, it is sufficient to point out that under
the Constitution, as amended, the Governor has power, after conviction,
on the reaommendation of the Board, to remit forfeituresin all oriminal
oases.
At the outset, we refer you to the well established rule that
the discretion of those lodged with the pardoning power is not a matter
which may be oontrolled or reviewed by the oourts. Ex parte Gore, 4 S.
W. (2d) 363 31 Tex. Jur. 1259, Pardon, Sec. 4.
A forfeiture takes place in the constitutional sense when one
loses .someright, privilege or benefit in consequence of having done a
certain act. State v. BeGrass, 11 S.W. 1029; Meyers v. State, 105 S.K
46; 19 Tex. Jur. 796, Forfeitures, Sec. 2.
Inasnuoh a8 the State, in the exercise of its police powers,
may prescribe the reasonable conditions upon which a person may exercise
the right and privilege of operating a motor vehicle upon the public
highways, it may provide by way of punishment for the ipso facto suspen-
sion of that right upon oonviotion of crime. Artio)e 48, Penal Code
(forfeiture of civil a6 distinguished from political rights)3 Bywaters
v. Paris & G. E. R. Co., 11 S.W. 6561 19 Ter. Jur. 809, Forfeitures,
Seas. 11 and 12.
You wish to be advised under this state of the Constitution
and laws of Texas whether the Governor, upon the favorable reoomnenda-
tion of the Board, has power to restore the right to operate a motor
vehicle upon the public highways to a person who has been convicted of
driving while into@oated, and who has served his jail sentence or
paid his fine, or both, after final conviction.
Honorable Ernest Guinn, Page 2 (o-6052)
4rtioles 802, 602b and 6020, Vernon's Penal Code, make it a
penel offense to operate a motor vehicle uponthe publio roads, high-
praysand streets of the State while under the influence of intoxicating
liquor.
Seotion 16(a) of Article 6687a, Vernon's Texas Statutes, pro-
vides that "the license of any person shell be automatically suspended
or revoked upon final conviction* for the of%nse of "driving a motor
vehicle while undar the influsnoe of intoxioating liquor." After the
first conviction the suspension shall be for six months. The second
conviction carries with it a suspension of one edditional year.
We think the crux of this matter is whether the revocation or
suspension of the license is en laoident of the punishsent prescribed
by Article 802 of the Penal Code. Conceivably, the revocation or sus-
pension of that right could impose a greater penalty upon the offender
than that presaribed by Article 802 of the Penal Code. The added psn-
alty of forfeiture of a valuable legal right imposed byArticle 6687a,
16(a), is "automatically" imposed by operation of law, leaving no dis-
cretion whatever for court or jury or administrative intervention. Its
imposition is contemporaneous with the conviction under the penel statute
and is an inexorable part and paroel of the penalty imposed.
That the faots in your inquiry make the suspsnsion of license
a forfeiture by wey of punishsent after conviction in a criminal case
cannot be doubted. That Article 802 of the Penel,Cods and Article 6687a,
16(a) of the Civil Statutes "are to be treated prospectively and oonstrued
together es though they constituted one act," is one of the long and well
established rules of statutory construction. And it makes no difference
that the statutes were passed at different times and are found in differ-
ent codes of our law. It is enough that they relate to the same subject*
Section 283, Sutherland on Statutory Construction.
You are therefore advised that the Governor, on the recoxmenda-
tion of the Board of Pardons end Paroles, has the constitutional power of
raission of the forfeiture of a drivers license after aonviotion for the
offonse,of driving while intozdoated. Moreover, the Governors of Texas
have so construed and aoted under the Constitution in connection with these
end similar statutes for a great many years. Their construction, being the
same a8 ours, strengthens our conviction~that they have not exceeded their
constitutional powsr. Sections 307 to 309, Sutherland on Statutory Construo-
tion.
Very truly yours,
’ AlTOREEY GEEEUL. OF TEE&S
EA:db:egw By Elbsrt tboper
APPBGVED OCT 4 1944 Elbert Booper
S/ Carlos Ashley Assistant
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