Untitled Texas Attorney General Opinion

THE ATTORSET GENERAL
OF TEXAS
September 29, 1988
Honorable John L. Barnhill Opinion No. JR-959
County Attorney
Crosby County Re: Authority of a justice of
Crosbyton, Texas 79322 the peace to probate suspension
of a driver*s license when an
individual refuses to take a
breathalyzer test (RQ-1419)
Dear Mr. Barnhill:
you ask whether a justice of the peace has the
authority to probate the suspension of a driver's license
when the defendant has refused to take a breathalyzer test.
Article 67011-5, V.T.C.S., governs the administration
of breath tests and the suspension of licenses for refusal
to take the same. Section 2(b) requires that an arresting
officer advise a person arrested for driving while intoxi-
cated that refusal to submit to the test may result in the
driver's license being automatically suspended for 90 days.
Section 2(d) requires the arresting officer to immediately
make a report to the Department of public Safety if the
person refuses to submit to a breath test.
Section 2(f) provides that upon receipt of the report
the director of the department of public safety shall sus-
pend the person's license for 90 days and notify the driver
of the suspension.
Within a specified time the driver may request an
administrative hearing. The hearing shall be set "in the
same manner as a hearing under section 22(a)" of article
6687b, V.T.C.S. If upon hearing the court finds that
probable cause existed that the person was driving while
intoxicated, that the driver was offered an opportunity to
give a specimen, and that there was a refusal to give a
specimen upon the request of the officer, the director of
the department of public safety shall suspend the person's
license for a period of 90 days. If the court finds in the
negative on any of the issues, the director shall return the
license. V.T.C.S. art. 67011-5, § 2(f).
P- 4869
i
Honorable John L. Barnhill - Page 2 (JM-959) -I
Section 22(a) vests jurisdiction of the administrative
hearing in "the mayor of the city, or judge of the police
court, or a Justice of the Peace in the county where the
operator or licensee resides." Section 22(a) further
provides in pertinent part:
Such hearing shall be had not less than ten
(10) days after notification to the licensee
or operator under any of the provisions of
this section, and upon charges in writing, a
copy of which shall be given to said operator
or licensee not less than ten (10) days
before said hearing, except as otherwise
provided by this subsection. . . . It shall
be the duty of the court to set, the matter
for hearing upon ten (10) days' written
notice to the Department. . . . Notice by
registered mail to the address shown on the
license of the licensee shall constitute
service for the purpose of this section.
6687b, V.T.C.S. 5 22(a).
In Texas Deoartment of Public Safetv v. Preston, 727
S.W.2d 325 (Tex. App. - Houston [lst Dist.] 1987, writ ref'd
n.r.e.), the court held that the county civil court had
authority to probate the 90 day suspension of a drivers
license for refusal to give a breath specimen. The court
rejected the conclusion reached in Attorney General Opinion
JM-250 (1984) that section 2(f) of article 67011-5
incorporates section 22(a) of article 6687b only for
determining the manner in which breath test refusal cases
are set. In rejecting Attorney General Opinion JM-250, the
court stated that the opinion disregarded section 4 of
article 67011-5 which incorporates other provisions of
article 6687b. The court concluded that section 22(c) of
article 6687b governs every appeal of a drivers license
suspension, whether under section 22(a) or under section 31.
In holding that the court could grant probation of the
suspension for refusal to take the test, the court found it
significant that "had appellee been convicted of the offense
of driving while intoxicated, the criminal court would
clearly have had the authority to probate the suspension of
his license" under article 42.12 of the Code of Criminal
Procedure. Preston, 727 S.W.2d 325, 327.
Section 22(e) of 668733 as amended, effective October
20, 1987, provides:
P. 4870
\
.- Honorable John L. Barnhill - Page 3 (JM-959)
,
,-,
(e) The judge or officer holding a hear-
ing under Subsection (a), (b) or (d) of this
section, or the court trying an appeal under
Section 31 of this Act, on determining that
the License shall be suspended or revoked,
may, when it appears to the satisfaction of
the court that the ends of justice and the
best interests of the public as well as the
defendant will be subserved thereby,
recommend that the revocation or suspension
be probated on terms and conditions deemed by
the officer or judge to be necessary or
proper. The report to the department of the
results of the hearing must include the terms
and conditions of such probation. When
probation is recommended by the judge or
officer presiding at a hearing, the
department shall probate the suspension or
revocation. This subsection does not aoolv
to an anow 31 of this Act for
susoension of a driver's license or denial of
oneratina orivileaes under Section 2. ChaDter
434. Acts of the 61st Leaislature. Reaular
‘. Session. 1969 (Article 67011-5. Verno
T xas Civil Statutes) (Emphasis refle%
pErtion added by amendment.)
Acts 1987, 70th Leg., 2d C.S., ch. 41, § 2, at 130.
Section 31 of article 6687b as amended, effective
September 1, 1987, provides in pertinent part:
Any person whose driver's license has been
suspended or revoked after an administrative
hearing under Section 22(a) of this Act, any
person whose license suspension has been pro-
bated under Section 22(e) of this Act, and
any person denied a license or whose driver's
license has been cancelled by the Department,
except where such cancellation, suspension,
or revocation is automatic under the provi-
sions of this Act, shall have the right to
file a petition within thirty (30) days after
the date the order of the Department was
entered for a hearina in the matter in the
Countv Court at Law in the county wherein
such person shall reside, or if there be no
County Court at Law therein, then in the
countv court of said countv. . . . (Emphasis
added.)
P. 4871
:
Honorable John L. Barnhill - Page 4 (JM-959) -.
I
The legislature by the 1987 amendment added the
sentence that prohibits the granting of probation under a
section 31 appeal to the county court. Acts 1987, 70th
Leg., ch. 1127, 5 6, at 3861. Section 31 does not apply to
the administrative hearing in the justice of the peace
court. & Coody, Probation of Driver's License Susoensions
for Breath Test Refusals, Voice for the Defense (March
1988), at 6.
SUMMARY
The justice of the peace has the authority
to probate the suspension of a drivers li-
cense in an administrative proceeding where
the defendant has been found to have refused
to take a breathalyzer test.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STBAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
-_
p. 4872