Untitled Texas Attorney General Opinion

Honorable R. A. Stalllngs Opinion No. C-515 County Attorney Port Rend County Re: Whether the operator's Richmond, Texas license of a defendant granted probation under the provisions of the Misdemeanor Probation Law of 1965 for the first offense of driving a motor vehicle while,intoxicatedis Dear Mr. Stallings: automaticallysuspended. In your opinion request you ask if a driver's license is automaticallysuspended when a person has been convicted of the misdemeanor offense of driving while intoxicated,first offense, and has been granted probation under the terms of the Misde- meanor Probation Law of 1965, Acts 1965, 59th Leg:, Ch. 164, p. 346. This question presupposes that said Misdemeanor Pro- bation Law of 1965 applies to driving while intoxicated,first offense, and that a person convicted of said offense is eligible for probation under the terms thereof. Section 3(a) of said A&provides in part as follows: "A defendant who has been found guilty of a misdemeanorwherein the maximum permissible punishment is by confinement in jail or by a fine in excess 0-0 may be granted proba- tion If: II . . ." (Emphasis added) Adherence to the strict letter of this provision would mean that misdemeanor probation,may be granted only where the maximum permissible punishment is (I) by confinement in jail or (2) by a fine in excess of $200, and that when both confinement in jail and a fine are permitted or required, the Act would not apply. The purpose of the Misdemeanor Probation Law of 1965 was to extend the benefits of probation to those persons convicted of certain misdemeanor offenses. Heretofore, the benefits of pro- bation have been available only to those persons convicted of felony offenses. Section 3(a) of said Act was put in as a -2423- c Hon. R. A. Stallings,page 2 (C-515) bottom limit for the granting of probation so that probation could only be granted to those persons convicted of misdemeanor. o?fenses of a more serious nature and to prevent our courts from being cluttered with probation requests in mere trivial matters. If a strict interpretationof this Act is made, however, then we will arrive at an absurd and unjust result. First, Section 3(a) would allow a hiatus from probation for lesser misdemeanor offenses to probation for felony offenses while no probation could be given for more serious misdemeanor offenses. The absurdity of such a strict construction is more apparent in Sections 3(a)(2) and 3(c), for the strict interpretationof these Sections would mean that a person who has previously been convicted of a misdemeanor offense, wherein punishment by con- finement In jail only is allowed, would not be eligible for ,futureprobation while a person who has previously been convicted of a misdemeanor offense, wherein confinement in jail and a fine of less than $200 is permissible,would be eligible fofpro- bated sentence. Such a result would be one neither intended nor anticipated by the Legislature and should not be attributed to them. In Magnolia Petroleum Co. v. Walker, 83 S.W. 929, our Supreme court held: II 'Where,however, the language . . . of the statute is of doubtful meaning, or where ah adherence to the strict letter would lead to injustice, to ab- or to contradictoryprovisions, SF%% e u y devolves upon the court of as- certaining the true meaning. If the intentions of the Legislature cannot be discovered, it is the duty of the court to give the statute a reasonableconstruc- tion, consistent with the general rin- ciples of law.' 59 C.J., P. 957, f356% Empire Gas & Fuel Co. v. State of Texas, supra." (Emphasis added) We, ,therefore,hold that the Misdemeanor Probation Law of 1965 applies to all misdemeanorswherein a permissible punish- ment upon conviction is: 1) by confinement in jail; (2) by a fine in excess of $200; (3f by confinement in jail plus a fine of any amount. We are further supported In our conclusion by the recent decirion of the Supreme Court of Texas in Sweeny Hospital Dirtrict v. Carr, 378 S.W.2d 40 (TexiSup.IgW) : -2424- - Ron. R. A. Stallings,page 3 (C-515) “The courta of this state have on occasion added worclsor phrases to statutes when necessary to gtve effect to legislativeintent,.. . . Section k(a) of the Misdemeanor Probetion Laudof 1965 is clear and unambiguous. It states: “When a defendant is granted pro- bation under the terms of this Act, the finding of guilty does not become final, nor may the COI11% render judg- B-thereon, except as provided-in- Section 6 of this Act.” (Emphasis added) . Article 6687b, Section 24(a)2, V.C.S., provides for the automatic suspension of the license of any person upon final conviction of driving a motor vehicle while undtr the mnce of intoxicatingliquor or narcotic drugs. Since the probated Judgment is not a final con?rSction, the driver’s license is not automaticallysuspended. Section 6(b) provides: “On the date the probation Is revoked, the finding of guilty becomes final and the court shall render judg- ment thereon against the dtfendant....” In the event that probation is revoked and the judgment becomes final in accordance with this prOVlBiOn, tht dri%fSr’S license is automaticallysuspended at such ,time. We art not unmindful of tht provision of Article 668?b, Soetlon 25(c), V.C.S., which reads as follows: “For the purpose of this Act, the term ‘conviction’shall meana finaT conviction. Also, for the purpose of Fhis Act, a forfeltur% of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction. “Provided,however, that in case of conviction for any of the offenses enumerated in paragraph (a) of Section 24 of this Act, -24253 Hon. R. A. Stallings,page 4 (c-515) and the sentence of the court having been suspended as provided in the Statutes, such suspended sentence shall not mitigate against the suspension of the operatorts,commercial operator's, or chauffeur's license of the person convicted." (Emphasisadded) It is well settled that there is no sentence in a misde- meanor case. Since this proviso applies only where the sentence of the court is suspended, it has no application to a misdemeanor case. SUMMARY A driver's license is not automaticallysus- pended when a person is convicted of driving while intoxicated,first offense, and placed on probation under the terms of the Misdemeanor Probation Law of 1965. Yours very truly, WAGGONER CARB Attornev General of Texas Assistant Attorney General REO:sss APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman W. 0. Schultz John Banks Robert W. Norris John Reeves APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright -2426-