The Attorney General of Texas
July 8, 1980
MARK WHITE
Attorney General
Honorable James B. Adams, Director Opinion No. MW-2o 4
Texas Department of Public Safety
5805 N. Lamar Blvd. Re: Whether Attorney General
Austin, Texas 78773 Opinion MW-133 should be given
retroactive effect.
Dear Mr. Adams:
You icave requested our opinion regarding whether Attorney General
Opinion MW-133 (1980) should be given retroactive effect. In that opinion,
we construed the effect of amendments to article 42.13, Texas Code of
Criminal Procedure, on statutory provisions concerning the suspension of a
person’s &iver’s license in &iving while intoxicated cases. We said that,
whereas former article 42.13, Code of Criminal Procedure, had expressly
provided that an individual who receives misdemeanor probation &es not
have a final conviction, the amended statute &ems a grant of probation to
constitute a final conviction, except when probation is granted under section
3d, which provides for a deferred adjudication of guilt. Under section 24(a)
of article 6687b, V.T.C.S., a final conviction of the offense of &iv@ while
intoxicated results in the automatic suspension of the defendant’s license to
drive. Thus, we concluded that the amendments to article 42.13, Code of
Criminal Procedure, had significantly altered the law in this area.
These amendments, enacted by the 66th Legislature, Senate Bill 849,
Acts 1979, 66th Legislature, chapter 654, at 1514, took effect on Algust 27,
1979. Prior to the release of Opinion MW-133, (19801, there was widespread
disagreement as to the precise meaning of the amendments to article 42.13,
Code of Criminal Procedure, and it appears that many attorneys in good
faith advised clients to plead guilty in the belief that a grant of probation
would prevent the suspension of their Biving privileges. In recognition of
such reliance, you heve announced that the Department will record only
those convictions which became final on April 1, 1980, and thereafter. You
inquire as to the status of persons convicted between Aqust 27, 1979, and
April 1,198O.
The amendments to article 42.12, Code of Criminal Procedure, were
enacted by the legislature on May 28, 1979, and signed by the Governor on
June 13, 1979, but did not become effective until Algust 27, 1979. Neither
the administering egency nor the Attorney General is empowered to
P. 659
Honorable James B. Adams - Page Two (Mw-204)
postpone the statute’s effective date beyond that fixed by the legislature. See Tex. Const.
art. I, s 29. We conclude therefore that every person convicted ofxiving while
intoxicated on August 27, 1979, or s&sequent thereto, is subject to the amendments to
article 42.13, Code of Criminal Procedure, which became effective on that date. While
administrative realities may make it impossible for the Department to implement the
statute at this time in all cases resolved after August 27, 1979, it should take the steps
which sre administratively practical to enforce the statute from the time it became
effective.
SUMMARY
Amendments to article 42.13, Texas Code of Criminal Procedure,
became effective on Atgust 27, 1979, and persons convicted of
driving while intoxicated on that date or thereafter are subject
thereto.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Dawn Bruner
Doug Becker
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 660