Untitled Texas Attorney General Opinion

The Attorrwy General of Texas Decsmbcr 13. 1984 JIM MATTOX Attorney General . Supretnr cowl sullaq HonorAble ChArlc6 IhrAn6 Opinion No. ~~-250 P. 0. Soa 12546 chairmsn Aurtln. lx. 76711.2548 House Admiaistrnti~x~ Conanittce Re: Whether the TEXAS Department 51v475.2561 TEXAS House of Rep n?sentAtives of Public Snfety nay probate the Telcl Sltm74.1~7 P. 0. Box 2910 6U6p6,,6iOtl Of A driver’s liCeUSe Tal4copier 5121475-0255 AuStin, Tt?XAS 18149 of A perAott who ha6 been con- victed of driving while lntoxi- 714 Jackson.Suite 7W CAtSd AS 6 result Of A breath Dcllar. 7X. 752024505 tC6t r6fUSAl 2141742.5944 DeAr Representntivc Evsne: 4824Alberta Are.. Sutle ((10 El Paso. TX. 7-2793 You hAve Askc!d two questions Concerning the SuPpAnSiOn of A 915i533.3464 person’s driver’s license in connection with PreAeCUtiOn fcr driving while intoxicAtcd. You first Ask whether the TeXAA Department of 001Taxas. Suite 700 Public SAfety [her~cinafter DPS] May suspend the license of A person Houston. TX. 77002.3111 convicted of drivjr:g vhlle intoxicated [hereinAfter DUI] And plAced on 713122X1655 probation followiu#l such conviction if the fndivfdual has been found on Appeal to h6m refused A breath teAt. Such proceedings Are AepArAte And di:rtinct from crlminsl proceeding6 under the DWI 806 Broadway.Suita 312 StAtUteA. Secondly. you ARk vhether the depertment r&y suspend A Lubbock. 7X. 794014479 6Q6l747.5235 driver’s &zense tthen A person hA6 been convicted of DUI by A jury And such A jury recooocndA that his license not be suspended, despite An Affirmative f%ndinS of A brecrth test refussl. 4308 N. Twtth. Suit. 6 MCAIW. 7x. 7wo1.1665 50662.4547 Article 67011-5. V.T.C.S., govern6 the Adoini6trAtfon of breath test6 And the SUtl~~eUSiOn Of liC6nSe6 for rSfUAAl6 t0 tAke the s(Lme. SeCtiOU Z(b) retpire6 that An Arresting officer AdViSe A person 200 MaIn Plaza. wc4 4ca Arrested for WI thrt refusal to submit to t~he test my raut1.t In the San Antonlo. TX. 752052797 driver’6 license being “AUtOCUttiCAlly suspended for 90 days . . . 512!2254191 whether or not L!1@?person 16 subsequently prosecuted AA A result of the Arrest.” Upon refusA1. ot A request to submit to A breath test, An Equ*tOpportuniwl the Arresting officer Is required by section 2(E) to imm6diAtely make *ttirm*tiw Actlon EmPloy*r A written report t:o the DPS. Upon receipt of the report the director of DFS is reqUird to suspend the perzlon’s 1icenAe for 90 dAyS after the perAon 16 notified of his right to An AdministrAtive hearing on the bresth test t,efusal. V.T.C.S. Art. 67011-S. 12(f). The person wko refuses the brcrth test nnd is notified by the DPS that hjs license ~111 be suspended has A right to request an adminis- trative hearing. At these hearings the court is required to order the 6Usp6nSiOn of the license If it finds thrt there was probsble cAus6 for the DWI arrerit. that the person WAS given An opportunity te submit P. 1117 . Honorsbls ChArleA gVAn6 - PASC 2 (311-250) to A brerth test. And thAt he refused. Id. SZ(f). Section 2(f) provide6 further thAt these AdmiAiAtrAtlVehcAringS on breeth test refuAAls ars required to be “set in the 6Ame m6nnAr AS 6 hesrlng under Section 22(a)” of Article 6’587b. V.T.C.S. Thur, when the DPS is informed by A driver ChAt the driver desires An AdministrAtive heAring. the DPS is required to set such csse in ACCOrdAnC6 with the provisions of section 22(~). article 6687b. Section 22(~) vest6 jurlsdictlon of these Administrative hrnringr in municlpsl uyors And judges, or justices of the peecc And provide6 in part: Sec. 22. (A) . . . Such hearing 6hAll be had net less thAn ten (10) dAy6 After nOtifiC6tiOn to the licensee or operator under Any of the , provisions of thi:a section. And upon charge6 in writing. A copy of which Shall be given to said operator or 1icen:we not less than ten (10) days beforc said hSAril@;, except AS otherwise provided by this 6ubsectioP. For the purpose of heAring such csses, jurisdiction IA vested in the mayor of the city. or judge of the policr court, or A Justice of the Peace in the county where the operator or licensee resides . . . It shall be the duty of the court to set the matter fur heerlng upon ten (IO) days’ written notice to the Department . . . Ilotice by registered mail to the Address ShOWI on th,e licsnse of the liCenSe6 shall constitute rervilrt? for the purpose of this section. . . . Article 670114, section Z(f). incorporates Article 6687b. section 22(~). only for the purpose of determining the msnner in vhich breAth t66t refusal CAsea 6re “Set.” Article 67011-S does not iacorporste other provtolons of article 6687b. portions of vhich provide for the probAtion elf license suspension, which ve believe do not hAve Anything to do with the “setting” of the AdminiStrStivA hearing. See V.T.C.S. Art,. 6607b. 522(e) (Authority t0 prObAte 1icenAe rcv~tion or 6U6pl!Il6iO,,). There iA no provision in either Article 67011-5 or 6687b. W!(A) which provide6 for the probation of a license suspension for the failure to submit to A brerrth test. Attorney General Opinion II-1201 (1978). concluded thst Article 67011-S fncorporAted the pr,JbAtfon PrOViAiOtlA of article 6687b. We believe that this opinion m:l6constn~ed the StAtutea And it is hereby overruled. In 1983. the l~?l!islature amended article 67011-S to make it clear that suspension of a driver’s lice@se for refusal to take e brearh test i6 An entirely Separate matter from the penoltles And procedures of Article 66i)‘rb (a. uai~ning that suspension will aUtOmtiCAlly take place rl?l;ardless of “whether or not the person is subsequently prosecuted AS a result of the arrest” section Z(b); p. 1118 . deletion of pertiwnt part of old leccion Z requiring telnrtetewnt of suspended llccnee when pcrron found “not guilty” of DUI). Thun. the auapenaion at iesue here ia apparently intended LO be a purely civil penalty. Attorney General Opinion U-1201 z have been incorrect under the old lansuaugc; It i# eY)re clearly incorrect under the rwnded languege. UC conclude, in anaver to your questlone, char the suspcnaion of a driver’s llcenae for failure co submit to l hrerth true may not be probated notvit:hatanding the fact that a conviction in a different court of a DUI offenre may have resulted in a probated oeutence or the fact that t”llt jury follovinng a DUI coovlctioc haa tecolmaended that the liernee wt bo ewpended. The suspension of a driver’s license for failure to rubnit to l brenth test mey not be probated. .Irn MATTOX Attorney General of Texas TOM GREEN First Assirtant Attorney Cenc!ral DAVID R. RICHARDS Executive A#siMant Attorney General RICK CILPIN Cheirwn. Opinion Conmilttec Prepared by Rick Cilpfn Assistent Attorney General UPROVED: OPINIONCOMMITTEE Rick Cilpin. Chairman Colin Cerl Susan Garrison. Tony cui110ry Jim Hoellinger Jennifer Riggs Nanry Sutton P. 1119