, 1
The Attorney General of Texas
May 5, 1983
JIM MATTOX
Attorney General
Honorable Edward Woolery-Price Opinion No. JM-31
Supreme Court Building
Colorado County Attorney
P. 0. Box 12546
Austin. TX. 78711. 2540
910 Milam Re: Jurisdiction of county
51214752501 Columbus, Texas 78934 court on appeal of probation
Telex 9101674-1367 violation under section 22 of
Telecopier 5121475.0266 article 6687b, V.T.C.S.
1607 Main St., Suite 1400
Dear Mr. Woolery-Price:
Dallas. TX. 75201-4709
2141742-6944 You have asked a question concerning section 22 of article 6687b,
V.T.C.S., which is entitled "Authority of Department [of Public
Safety] to suspend or revoke a [driver's] license." Your question is
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793 based upon the following facts:
9151533.3464
A licensee was found by the justice of the
peace [hereinafter J.P.] to be an habitual
-20 Dallas Ave.. suite 202
Housfon. TX. 77002-6966
violator and placed on one year probation, as
7131650-0666 provided in subsection (e) of section 22, article
6687b. No appeal is perfected by licensee to the
above.
806 Broadway. Suite 312
L”bbock, TX. 79401.3479
Then, the same licensee is subsequently cited
6061747-5236
to appear before the same J.P. for violation of a
term or condition of that probation. At this
4309 N. Tenth. Suite E hearing the J.P. finds that a term or condition of
McAllen. TX. 76501-1685 probation has been violated and enters an order to
5121682.4547
that effect. The Texas Department of Public
Safety then suspends the license to drive.
200 Main Plaza. Suite 400
San Antonio, TX. 76205.2797 Based upon the J.P. 's order that the licensee
5121225.4191 has violated his probation -- that licensee then
files with the county court a petition wherein the
An Equal Opportunity/ licensee is appealing from the order of the J.P.
Affirmative Action Employer that the probation has been violated. The
licensee prays for a trial of all the issues,
namely beginning with the issue of whether
licensee is a habitual violator. (Emphasis in
original).
We note that the case described by these facts is no longer before the
P courts; however, you wish to inquire about the legal issues raised by
these facts. You ask:
p. 133
. .
Honorable Edward Woolery-Price - Page 2 (JM-31)
As a result of the appeal by the licensee from the
J.P. order that the licensee has violated
probation, what does the county court have
jurisdiction to hear? Is it to decide the issue
of whether the term or condition of probation was
violated, or is the county court to hear the
issue(s) of whether the licensee is:
(a) an habitual violator, and if so,
(b) should the licensee be placed on probation
or his license suspended?
The following provisions of section 22 are relevant in this
inquiry:
(a) When. . . the Director [of the department]
believes the licensee to be incapable of safely
operating a motor vehicle, the Director may notify
said licensee of such fact and summons him to
appear for hearing. . . For the purpose of hearing
such cases, jurisdiction is vested in. . . a
Justice of the Peace. . . Upon such hearing, the
issues to be determined are whether the license
shall be suspended or. . . revoked, and, in the
event of a suspension, the length of time. . . The
officer who presides at such hearing shall report
the finding to the Department which shall have
authority to suspend the license for the length of
time reported; provided, however, that in the
event of such affirmative finding, the licensee
may appeal to the county court. . . said appeal to
be tried de nova. . .
(b) The authority to suspend [a] license. . .
is granted the Department upon determining after
proper hearing as hearinbefore set out that the
licensee:
. . . *
(4) Is an habitual violator of the traffic
law [as hereinafter defined].
* * . .
(e) The judge or officer holding a hearing
under Subsection (a). . . , on determining that
the License shall be suspended or revoked,
may. . . recommend that the revocation or
suspension be probated on terms and conditions
p. 134
Honorable Edward Woolery-Price - Page 3 (~~-31)
deemed by the officer or judge to be necessary or
proper. . . When probation is recommended by the
judge or officer. . . the department shall probate
the suspension or revocation.
(f) When the director believes that a licensee
who has been placed on probation . . . has
violated a term or condition of the probation, the
director shall notify the licensee and summons him
to appear at a hearing as provided in Subsection
(a) or (d) of this section. . . ~Thi issue at the
hearing shall be whether a term or condition of
the probation has been violated. The officer or
judge. . . shall report his finding to the
department and if the finding is that a term or
conditions of the probation is violated, the
department shall revoke or suspend the license as
determined in the original hearing. (Emphasis
added).
We begin by noting that you have not asked us to decide whether
it would be too late for the licensee to appeal a justice of the
peace's original findings that he is an habitual violator of the
traffic laws, that his driver's license should be suspended, and that
the suspension should be probated. On the contrary, you have only
asked whether these issues may be raised in a trial de nova to which
an individual is entitled upon appeal of a justice of the peace's
finding that he violated a condition of his probation. We will limit
our discussion to this issue.
Section 22(e) of article 6687b provides that a justice of the
peace who has determined that a licensee's driver's license should be
suspended may probate that suspension upon terms and conditions which
he deems proper. When probation is recommended, the department is
required to probate the suspension. Under section 22(f). if the
Director of the Department of Public Safety believes that the licensee
has violated a condition of his probation, he may summons the licensee
to a hearing which is to be held under the provisions of section
22(a). Section 22(f) explicitly provides that "the issue at the
hearing shall be whether a term or condition of the probation has been
violated."
Under section 22(a), the original issues to be decided by a
hearing officer are whether a licensee's license should be revoked or
suspended, and, if suspended, the length of the suspension. The
licensee is entitled to appeal the hearing officer's "findings" on
these issues and receive a trial de nova in the county court. In a
section 22(a) probation revocation hearing which results from the
application of section 22(f), however, the sole issue to be decided by
the hearing officer is whether the licensee violated a condition of
his probation. We believe that the hearing officer's determination on
P. 135
Honorable Edward Woolery-Price - Page 4 (JM-31)
this issue constitutes a "finding" within the meaning of section
22(a), and that the licensee is entitled to appeal this "finding" to
the county court and receive a trial de nova.
Because the statute expressly provides that the sole issue to be
decided at a probation revocation hearing is whether the licensee
violated a condition of his probation, we believe that it logically
follows that this is the sole issue which may be taken up in a trial
de nova which results from an appeal of the hearing officer's finding
on this issue. Put another way, the hearing officer's prior
determinations that the licensee is an habitual violator of traffic
laws, that his license should be suspended, and that the suspension
should be probated may not be taken up in a later trial de nova. The
proceeding which involved these three issues is entirely different
from the proceeding which involves the issue of whether a condition of
probation has been violated, and given the express language of the
statute, we believe that it is clear that these two proceedings may
not be intermingled. Had the licensee wished to appeal the justice of
the peace's original findings, he could have done so directly under
section 22(a) and received a trial de nova on those issues. We do not
believe that he may raise these issues in an appeal taken in a
subsequent proceeding.
We therefore conclude that a hearing officer's determinations
that a licensee is an habitual violator of the traffic laws, that his
license should be suspended, and that the suspension should be
probated may not be examined in a trial de nova which results from an
appeal of the hearing officer's later finding that the licensee
violated a condition of his probation.
SUMMARY
Section 22 of article 6687b, V.T.C.S., does not
permit a hearing officer's findings that a
licensee is an habitual violator of the traffic
laws, that his license should be suspended, and
that the suspension should be probated to be
examined in a trial de nova which results from an
appeal of the hearing officer's later finding that
the licensee violated a con ition of his
probation.
Very truly you
J A Eli&?
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 136
. .
Honorable Edward Woolery-Price - Page 5 (JM-31)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Rick Meyer
Jim Moellinger
Nancy Sutton
p. 137