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Honorable Clifford Powell
County Attorney Opinion NO. M-673
Grayeon County Courthouse
Sherman, Texas RS: Article 802f, Penal Code,
and related questions.
Dear Mr. Powell:
You requested an opinion of this office concerning a
suepension of an operator's license where a Defendant who
ham been arrested for driving while intoxicated, first
offehne, refut?elr
to mubmit to a Chemical Breath Tzs
provrddd for in Article 802f, Texas Penal Code, commonly
referred to as tbe "Implied Consent" law.
Rephrased, your questions are as follows:
1. Where, upon arrest for driving while in-
toxicated, first offense, a defendant refuses
to take a chemical breath test and later is
found guilty of misdemeanor driving while in-
toxicated and receives a probated sentence, is
that Defendant &ill subject to the adminfstra-
tive procedure to revoke his operator’e license
under provisions of Article 802f, Penal Code?
2. If the Defendant refuses to take the chemical
breath test upon arr,estfor timdemeanor driving
while intoxicated and is later found guilty of
said offense receiving a 12 months l uspen6ion
for caid offense as provided in Article 6687b,
Section 24(a)(2), iu a pending administrative
case filed by the arresting officer for Me
Defendant's refumal to take the test atill re-
quired?
Y
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Honorable Clifford Powell, Page 2, (M- 673 )
3. If the answer to question 2 is Yes, then do
the two suspensions of the driver's license run
concurrently or consecutively?
1.
In answer to your first question, it is our opinion
that a defendant who receives probation for the offense of
misdemeanor driving while intoxicated (Article 802, Texas
Penal Code), and who refuses to take the chemical breath
teat upon arrest as provided in Article 802f, Penal Code,
is subject to the administrative proceedings of Section 22,
Article 6687b, Vernon's Civil Statutes, as amended, to re-
voke his operator's license.
Accordina to Section 24(a)(2), Article 6687b, the
operator's license of any individual is suspended for 12
months automatically upon final conviction for the criminal
offense of driving while intoxicated (Article 802, Penal
Code). Attorney General's Opinions Nos. M-640, C-515, and
C-685 held thatan operator's license is not suspended
however, where conviction for the misdemeanor offense of
driving while intoxicated is probated. There is no final
conviction under the Misdemeanor Probation Law, Article
42.13, Texas Code of Criminal Procedure, where a probated
sentence is imposed unless the probation is revoked. Attorney
General's Opinion No. M-640.
The Legislature has the right and power to enact
statutes for the protection of the general public travel-
ing the highways of Texas, and to require that the privilege
of maintaining an operator's license be attendant with some
oblisations and responsibilities. Gaytan v. Caaaidy,
F.Su&. (W.D. Tex;. 1970); Gillespie v. Tex;s Department
--.~ 347 u.8.yh3;~i Tex. 459, L59 s.w.Zd 17 (1953) cert.
,f-Zil&afet
c-
aenfec Two separate Texas courts have held
constitutional the procedure for hearings and appeal from
administrative decisions founded under Section 22, Article
1960 writ).
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honorable Clifford Powell, Page 3, (M- 673 )
Section 2, Article 802f, provides for utilization of the
administrative procedures found in Section 22(a), Article
668713,Revised Civil Statutes of Texas, as emended, which are
civil end administrative in nature, generally independent of
any criminal proceedings which may be instituted pursuant to
other statutes or ordinances. The legislature provided in
Section 2, Article 802f, that any individual shall have his
license suspended if a sworn statement is filed by a law en-
forcement officer that he has reasonable grounds to believe
that the arrested person did drive or was driving a motor
vehicle upon public highways of this state while under the
influence of intoxicating liquor end that the individual
refuaed to submit to the test, end that the hearing officer
finda upon hearing that probable cause existed that the in-'
dividual was operating or had been operating a vehicle on
the public roads of this state under the influence of in-
toxicating liquor.
Thus, the legislature has established en additional
civil sanction of possible suspension of driver's license
by administrative hearing separate end independent of the
automatic suspension impoaed by Section 24(a)(2), Article
6687b.l Article 802, Vernon's Penal Code, imposes a civil
asnction.even though it'ia found in the Penal Code.
1
CAVEAT : Section 7(b), Article 42.13, Texas Code of
Criminal Procedure provides that the administrative hearing
may not take into account the finding of guilty after the
probated case is dismissed by the court, in the following
language: "After the case against the probationer is dis-
missed by the court, hia finding of guilty may not be con-
sidered for snx ur oae except to determine his entitlement
to a future probat on under this Act, or any other probation
,5?----
Act."
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Honorable Clifford Powell, Page 4, (M- 673 )
2.
fin answer to your second question, it is our opinion that
a pending administrative case filed under Section 22(a), Arti-
cle 6687b, by the arresting officer for the defendant's refusal
to take the chemical breath test, is not re uired to be heard
or brought to a conclusion or decision
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y t e administrative
agent for the Texas Department of Public Safety. Such hearing,
however, may be had or-ma continue either after or before -
the defendant is found h Article 802. Vernon's
Penal Code, of driving while-intoxicated, firat.offense, if
the Texas Department of Public Safety wishes to suspend the
operator's license.
Section 2, Article 802f, provides that upon refusal to
take the chemical breath teat and receipt of a sworn report
as to reasonable grounds by the arresting officer the Texas
Department of Public Safety or its agent shall set the matter
for a hearing as provided in Section 22(a), Article 6687b.
There is no language, either directory or mandatory, which
requires the hearing to be had or to continue after it is
set; neither is there any language which prohibits such hearing
from taking place after a conviction for the misdemeanor
offense is obtained. We are strengthened in this reasoning
by the.following language of Section 2, Article 802f, which
invokes the maxim that the expression of a particular thing
excludes the idea of something else not mentioned, or "expreasio
unius ee,texlueio alterius:"
II
. . .Provided, however, that should such person
be found 'not guilty' of the offense of driving
while under the influence of intoxicating liquor
or if said cause be dismissed, then the Director
of the Texas Department of Public Safety shall
in no case suspend such persons driver's license;
. . .II
Had the legislature intended to prohibit the Department
from instituting proceedings $+nderSection 22(a), Article
6687b, to suspend the operator's license separately and in-
dependently of the automatic suspension provided for in Sec-
tion 24Ca) (2) of this same Article, our opinion is that it
would have specifically done so. By failing to disallow
suspension of an operator's license where a guilty finding
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honorable Clifford Powell, Page 5, (M-673 1
is made the statute infers that all omissions were intended
by the legislature and that the administrative proceedings
are therefore maintainable. We find no basis in reason or
legislative history for any contention that the implied con-
sent law, Article 802f, Vernon's Penal Code, and the criminal
offense article, Article 802, of that Code, are to be con-
strued together to allow the guilty plea to nullify the effect
and meaning of the implied consent test.
Further, such interpretation would be unconstitutional
under the coercion doctrine of U.S. v. Jackson, 390 U.S. 570,
(1967), for it would place a premium on guilty pleas by saying
that no operator's license can be suspended under the implied
consent law if the defendant pleads guilty to the criminal
offense of driving while intoxicated, whether or not he re-
ceives probation. See a similar Ohio case Hoban v. Rice, 7
Cr.L. 2257,tJune 25, 1970). A hearing must be held, however,
to determine if probable cause exists to suspend the license
and such hearing must comport with the requirements of Arti-
cle 42.13(7)(a), Texas Code of Criminal Procedure, unless the
operator waives his rights to a hearing and submits to the
suspension voluntarily.
3.
In answer to your third question, it is our opinion that
should an administrative hearing on sworn statement be held
pursuant to Section 22(a) , Article 6687b, any suspension may
run either concurrently or consecutively or both with the auto-
matic suspension imposed by,Eection 24(a)(2), Article 6687b.
Any other result would be tantamount to refusing to allow
the legislature to impose additional reasonable responsibili-
ties and obligations upon the privilege to drive the highways
of this state. Simply stated, by enactment of the hearing pro-
visions in Article 802f, under Section 22(a), Article 6687b,
the legislature has provided for more than the former minimum
12 months revocation upon a finding of driving while intoxicated;
whether or not that findin< is by administrative or judicial
decision; without regard to and independent of the character
or osigin of that finding , viz., civil or criminal. Whether
the auepenaion periods run concurrently or consecutively is
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Honorable Clifford Powell, Page 6, (M- :673 )
left solely to the administrative discretion of the hearing
officer or magistrate.
It is therefore possible that with consecutive terms of
suspension, and under the proper factual circumstances, sua-
pension of an operator's license may be for as long as a
period of two years.
We view the above conclusions as properly harmonious and
comporting with the legislative history, object and purpose
of the statute: An attempt to provide stringent regulation
for safer highway travel in the face of sn increasing number
of accidents caused by individuals who drive while intoxicated.
SUMMARY
A defendant who receives probation for
the misdemeanor offense of driving while
intoxicated, under Article 802, Texas Penal
Code, and who refused to take the chemical
breath test upon arrest as provided in
Article 802f, Penal Code, is subject to the
administrative proceedings of Section 22(a),
Article 668713,V.C.S., as amended, to re-
voke his operator's license.
A pending administrative case filed by the
arresting officer for the defendant's refusal
to take the chemical breath test is not required,
but may be held or brought to a conclusion,
additionally suspending an individual's opera-
tor's license, where that person has been found
guilty of the misdemeanor offense of driving
while intoxicated and has received an automatic
suspension under the terms of Section 24(a) (21,
Article 6687b, V.C.S., as..amended,where the
Texas Department of Public Safety deems such
action necessary or proper.
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Bonorable Clifford Powell, Page 7, (M- 673)
Should an administrative hearing be held
upon refusal of an individual to submit to a
chemical breath test upon arrest, any suspen-
sion of an operator's license based upon Sec-
tion 22(a), Article 668733,V.C.S., as amended,
may run either consecutively or concurrently,
depending upon the facts and decision of the
hearing officer, with the automatic suspension
imposed by Section 24(a) (2).
YO very tr yI
?
& ./@s
WFO C. MARTIN
4 Attor y General of Texas
Prepared by Bennie W. Bock, II
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Swearingen
Tom Sedberry
Rex White
Jay Floyd
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WbITE
First Assistant Attorney General
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