Untitled Texas Attorney General Opinion

.-
WNEY GENERAL
TEXAS
Hon. Neal E. Birmingham Opinion No. C-245
Criminal District Attorney
Cass County Re: Upon a final judgment of
Linden, Texas conviction for driving a
motor vehicle while intoxi-
cated, and the defendant
fails to surrender his
operator's license ,to the
court, is the defendant
subject to any other
action other than a
criminal action for fail-
ure to surrender the
license under Article
Dear Mr. Birmingham: 6687b, Sec. 44, V.C.S.
You recently requested an opinion of this office on the
following question:
"On a conviction for driving while intoxi-
cated under Art. 802 Penal Code, which is appealed
and the appeal is dismissed or the conviction
affirmed and the Defendant fails to voluntarily
surrender the custody of his operator's license
to the court, is he subject to a contempt of
court action, forfeiture of his recognizance
bond or any other'action other than a criminal
action for failure to surrender the license
under Art. 6687b, Sec. 44.”
The Driver's License Law, Acts the 4'7thLegislature,
1941, ch. 173, p. 245, codified as Article 6687b, Vernon's
Civil Statutes, provides in Sec. 24 as follows:
"Automatic suspension of a license.
"(a) The license of any person shall be
automatically sus ended u on final conviction
of any of the folYowing oF fenses:
I,. . .
"2. Driving a motor vehicle while under
the influence of intoxicating liquor or
narcotic drugs; . . ."
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. . .
Hon. Neal E. Birmingham, page 2 (C-245)
Section 25 provides:
"When court to report convictions.
"(a) Whenever any person is convicted of
any offense for which this Act makes automatic
the suspension of the operator's, commercial
operator's, or chauffeur's license of such
person, the court in which such conviction is
had shall require the surrender to it of all
operators', commercial operators', and chauffeurs'
licenses then held bv the nerson so convicted
and the clerk of said court shall thereupon
forward the same together with a record of such
conviction to the Department, within ten (10)
days from the date of conviction.
"(b) Every court having jurisdiction over
offenses committed under this Act, or any other
Acts of this State regulating the operation of
motor vehicles on highways, shall forward to the
Department a record of the conviction of any
person in said court for a violation of any said
laws, and may recommend the suspension of the
operator's, commercial operator's, or chauffeur's
license of the person so convicted, as provided
In Sction 22 of this Act.
"(c) For the purpose of this Act, the tLero
'conviction' shall mean a final conviction.
for the purpose of this Act, a forfeiture of ball'
or collateral deposited to secure a defendant's
appearance in court, which forfeiture has not been
vacated, shall be equivalent to a conviction. . . .lt
The Court of Criminal Appeals has held in McIntire v.
State, 135 Tex. Crim. 285, 117 S.W.2d 1093 (1938)w.s:
"Since the license of a person who Is found
guilty on the charge contained in the indictment Is
automatically suspended for six months for the
first offense, it is of no moment whether such is
incorporated In the judgment or not. . . .'
In the later case of Davison v. State, 313 S.W.3d 883 (Tex.
Crim., 1958) the court used the following language:
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Hon. Neal E. Birmingham, page 3 (C-245)
"And McIntire v. State, 135 Tex. Crim. 285, 117
S.W.2d 1093, holds that revocation of the driver's
license Is not a proper part of the judgment."
Section 25 of Article 668713 requires that "the court
in which such conviction Is had shall require the surrender
of it of all operators', commercial operators', chauffeurs'
licenses then held by the person so convicted. . .n It is
our opinion that the proper way for the court to "require"
the surrender of the license as required by Sec. 25 would be
by requiring the surrender of the license as a part of the
judgment of conviction. We do not believe that the entry of
an order requiring the surrender of the license is contra-
dictory of the language of the Court of Criminal Appeals in
either the McIntire or Davison cases as the court Is not
"revoking,"the driver'slicense but only requiring that it be
surrendered.
As is‘polnted out in Sec. 25 of Article 6687b, the
term “corWiction” means “final conviction.” Therefore, the
order requiring the surrender of the license would be effec-
tive when the judgment becomes final, which would be when
the'appeal is dismissed or the judgment of conviction affirmed
by the Court of Civil Appeals. If the Defendant in either
one of these instances, dismissal or affirmance, refuses to
surrender his operator's license to the court in derogation
of the court's order he would be subject to a show cause
order requiring that he show why he should not be held in
contempt of court for such refusal.
In the Davison case, supra, the court held that the
ancillary remf a conviction for driving while lntoxi-
cated were "not a part of the punishment prescribed by
the Legislature to the offense then on trial." The
Court of Criminal Appeals, in affirming a judgment of the
trial court enters the following judgment:
"This cause came on to be heard on the
transcript of the record of the Court below,
and the same being inspected, because it Is the
opinion of this Court that there was no error
in the judgment, it is ordered, adjudged and
decreed by the Court that the judgment be in
all things affirmed, and that the appellant pay
all costs in this behalf expended, and that this
decision be certified below for observance.”
In order to abide by the judgment of the Court of Crim-
inal Appeals in affirming the judgment of its trial court,
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- .
Hon. Neal E. Birmingham, page 4 (C-245)
the defendant would have to surrender his operator's license
to the trial court as provided in the affirmed judgment, by
reason of the fact thatthe recognizance or bail bond is
conditioned that the defendant shall appear before the trial
court from day to day, and from term to term, and not depart
therefrom, without leave of the court, in order to abide the
judgment of the Court of Criminal ADDealS. Arts. 8 30 and 831,
V.C.C.P. Therefore, upon the failure of the defenda'ntto
surrender his operator's license to the trial court, the
recognizance or bail bond could be forfeited for,his failure
to abide the judgment of the Court of Criminal Appeals.
SUMMARY
A defendant who fails to surrender the custody of
his operator's license to the court when his conviction
for driving while intoxicated has become final may be
held in contempt of court if,the judgment, under Sec.
25 of 'Article6687``~V.C.S. requires the surrender
of such license. The ,recognizanceor bail bond entered
into by the defendant, pending appeal to the Court
of Criminal Appeals,may be forfeited for failure to
surrender his operator's license upon final conviction
for driving while'intoxlcated, In those cases where
the judgment of the'court of Criminal Appeals affirms
the lower court's judgment, which requires,the defend-
ant to surrender his operator's license to the court.
Yours very truly,
Nvs:cjp
APPROVOBU:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Howard Fender
Cordon Zuber
Allo:B. Crow
Roger Tyler
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Hon. Neal E. Birmingham, page 5 (C-245)
APPROVED FOR THE ATTORNEY QENERAL
By: Stanton Stone
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