Honorable Don Hall Opinion NO. c-626
Criminal District Attorney
Waco, Texas Re: Suspension of driver's
license of defendants after
being convicted of the mis-
demeanor offense of DWI or
the felony offense of DWI
second offense and being
Dear Mr. Hall placed on probation.
In a recent opinion request of this office you posed
the following question:
"Whether a person pleading guilty to
DWI 2nd offense, under the new Code
of Criminal Procedure, and receiving
a probated sentence will automatically
lose his driver's license."
In addition, In your opinion request you set out-the
following paragraph:
"We would in particular appreciate this
opinion to consider the question in
misdemeanor DWI pleas in which, it Is
our understanding, that a plea of guilty
resulting in probation does not require
automatic loss of driving privileges."
This opinion will, therefore, not only consider whether
or not a person automatically loses his driver's license after
pleading guilty to driving while intoxicated, second offense,
and $8 placed on probation, but will also pertain to possible
loss of driving privileges when a person pleads guilty to
the misdemeanor offense of driving while intoxicated end Is '
placed on probation.
Article 6687b, Section 2&(a), Vernon's Civil Statutes,
provides as follows:
"The license of any person shall be auto-
matically suspended upon final conviction
of any of the following offenses:
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Honorable Don Hall, page 2 (C- 626)
II
. . *
”2 . Driving a motor vehicle while under
the Influence of Intoxicating liquor
or narcotic drugs;”
Article 6687b, Section 25 (c), second paragraph
states as follows:
“Provided, however, that in case of I:,
conviction for any OS the offenses en-
umerated in paragraph (a) of Section
24 of this Act, and the sentence of the
court having been suspended as provided
in the Statutes, such suspended sentence
shall not mitigate agalpst the suspen-
sion of the operator’s; commercial
operator’s, or chauffer’s license of the
person convicted.”
It aceme clear that the legislature has evidenced
its Intent that a person finally convicted of the offense
of driving while intoxicated shall lose his driving privileges
even though as a result of said conviction his sentence
is suspended.
Article 54.02, Vernon’s Code of Criminal Procedure,
1966, expressly repeals Articles 766 through 781, Vernon’s
Code of Criminal Procedure, 1925, which authorized sus-
pended sentences In Texas. Therefore, Texas no longer has
what was commonly referred to as a suspended sentence.
However, Article 42.12, Vernon’s Code of Criminal Procedure,
1966, commonly referred to as the Adult Probation and Parole
Law, authorizes, under certain circumstances, the suspension
of sentence and placid on probation of a defendant convicted
of a felony. Article &2.12A, Section 1 (b), defines “probation”
as follows:
“‘Probation’ shall mean the r&lease of a :
convicted defendant by a court under
conditions imposed by the court for a
specified period during which the im-
positlon of sentence Is suspend~ed.‘!
Article 42.12B, Section 3, provides as follows:
“The judges of the courts of the State of
Texas having original jurisdiction of
criminal actions, when it shall appear to
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Honorable Don Hall, page 3 (c- 626)
the satisfaction of the court that the
ends of justice and the best Interests
of the public as well as the defendant
will be subserved thereby, shall have
the power, after conviction or a plea
of guilty for any crime or offense,
where the maximum punishment assessed
against the defendant-does not exceed
ten years imprisonment, to suspend the
imposition of the sentence, and may
place the defendant on probation or im-
pose a fine applicable to the offense
committed and also place the defendant
on probation as hereinafter provided.
Any such person placed on probation,
whether in a trial by jury or before
the court, shall be under the super-
vision of such court."
It is thus seen that although we no longer have In
Texas a suspended sentence law, Article 42.12, which authorizes
the granting of probation undercerta%ncircumstarlces
speaks in terms of the sentence being suspended when a
defendant is placed on probation. It Is the opinion of this
office, therefore, that when a person is convicted of the
felony offense of driving while intoxicated, second offense,
and placed on probation in accordance with the terms of
Article 42.12, Article 6687b, Section 25 (c), second para-
graph requires that his dirvier's license shall be sus-
pended, and he shall lose his driving privileges in accor-
dance with the terms of said article.
This office Is not unmindful that it can be argued
that Article 42.12, applies to misdemeanor convictions was
well as felony convictions. Said Article makes no distinction
between felonies and misdemeanors but rather, as seen by
Section 3, simply states that the judges of the courts of
Texas may grant probation under certain conditions after
conviction or on a plea of guilty for any crime or offense
where the maximumpunishment assessed against the defendant
does not exceed ten years imprisonment. Standing alone this
language could be construed as meaning that the legislature
intended for Article 42.12, to apply to misdemeanors as well
as felonies. However, since the legislature enacted Article
42.13, Vernon's Code of Criminal Procedure, 1966, designated
as the Misdemeanor Probation Law, it is the opinion of this
office that the legislature has evidenced Its intent by the
enactment of said special statute that the granting of mis-
demeanor probations is to be governed by Article 42.13,
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Honorable Don Hall, page 4 (c- 626)
rather than Article 42.12. It Is our opinion, therefore,
that whether a person loses his drl%+@a license after
being placed on probation after conviction of the mis-
demeanor offense of driving while Intoxicated depends upon
the construction of Article 42.13, in conjuctlon rith
Article 6687b, rather than upon the reasoniag above set
out with regard to a conviction for the felony offense of
driving while intoxicated, second offense.
Prior to January 1, 1966, there was no sentence
In a mledemeanor case in Texas. Moorwas there available
after a misdemeanor conviction a suspended sentence or a
probated sentence. However, Article 42.02, Vernon’s Code
of Criminal Procedure, 1966, states as follows:
“A ‘sentence’ is the order of the court
in a felony or a misdemeanor case made
In the presence of the defendant, except
In misdemeanor cases where maximumpossible
punlahment ia by fine only, and entered of
record, pronouncing the judgment and order-
ing the same to be carried into execution
in the manner prescribed by law.”
It Is thus,seen that there is now a sentence In mls-
demeanor cases In Texas, except where the maximumpossible
punishment is by fine only, and If a person convicted of
the misdemeanor offense of driving while intoxicated were
placed on probation and his sentence suspended In accordanee
with Article 42.12, then the above set out reasoning with
regard to driving while Intoxicated felony offense0 would
apply. However, as stated previously, it is our opinion that
Article 42.13, the Nlsdemeanor Probation Law, governs the
granting of probation In misdemeanor cases. Therefore, we
must look to the terms of said Article to determine whether
a person convicted of the misdemeanor offense of driving
while intoxicated automatically loses his driver’s license
upon conviction and being placed on probation for sald
offense.
Article 42.13, makes no reference to the suspension
of sentence in connection with placing a defendant on pro-
bation In a misdemeanor case. Rather, Section 4 (a) of said
Art&le.&ate6 as follows:
“When a defendant Is grated probation
under the terms of this Act, the finding
of guilt does not become final, nor may
the court render judgment thereon, except
as provided in Section 6 of this Article.”
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Honorable Don Ball, page 5 (C- 626)
Article 42.13, section 6, in as follows:
"(a) If a probationerviolates any term
of hle probation, the court may cause
hle ureet by rerrant ae ln other caeeeI
The probationer upon arrest shall be
brought promptly be?ore the court aauelng
hle arreet and the,court, upon motion of
the etrte and after a hearing without a
jury may continue,modify or revoke the
probation UJ the evidence warrante.
"(b) On the date the probation Is revoh-
ad, the finding of guilty becomes final
and the court shall render judgment there-
on againet the defenderit.The judgment
ehall be enforced as in other caeee end
the tire rerved on probation may not be
credited or othenlee considered for any
purpose.n
Since Article 42.13, maker no reference to the
suspmeion of lentence In tiedemeanor easer when robatlon
ha8 been granted, and furthermore,since Section % of sald
Article preclude8 the court fro8 even eaterlng judgment upon
a finding of guilty except If end uhen aaId probation is
revoked ae provided In Section 6 of that Article, It 1s the
opinion of this office that a person placed on probation
after being found guilty of the mladeneanor offense of
driving uhlle intoxicateddoes not automaticallylose his
driver'8 llcenee elate Article 66&7b, Section 25 (c) is not
applicable unlsee end until the probation is revoked as
provided in Article 42.13, Section 6.
SUNWART
-------
A peraon convicted of the felony offerme OS
driving uhlle Intoxicated, oecond offense,
aad placed on probation in accordance with
the terms of Article 42.12, Vernon's Code of
Crlmlnal procedure of Texas, 1966, automatically
loses his drlver’r license. The defendant con-
vlcted ot the niiadaeanor offense of driving
while Intoxicatedand placed on probation in
accordance~wlth the tezaa of Article 42.13,
Vernon~ a Code o? Criminal Procedure of Texas,.
1966, doer not aukomatfcallJ1088 hi8 driver's
llcenee unleee and until hle probation 1s re-
voked and the court enter6 Judment on tii::
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Honorable Don Hall, page 6 -(c&26)
the finding of guilty In accordancewith
the term of Article 42.13.
Yimra very truly,
WAGGONJZR
CARR
Attorney General of Texas
APPROVED
OPIHIOH COMKXTTEE
W. V. Geppert, Chairman
Gilbert Pena
Douglas Chilton
W. 0. Shulte
APPROVED FOR THE ATlWNEY GNNERAL
BY: T. B. Wright
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