Untitled Texas Attorney General Opinion

R-77 Ausrm. TEXAS PRlCE DANIEL .March 20, 1947 ATTORSEY ‘ESIERAL Ron.--H~r-Oa~rlson, ~JP;,'Direct& .--__ Texas Department of Public Safety Driver's License Division ~, Camp-Mb-ry AustinrTexss Opinion' No. v-91 Re: Authority of the highway ,Department to require the surrender of driver's li- cense; suffl.ciencyof de- Dear Sir: mend for such license. Your opinion requws,tIs as folloWs: "A licensee has been finally convict-' wd of aggravated assault tiponthe person by means of a motor vehicle. Section 24 of Article 6687b, passed by the Forty-seventh Legislature, provides for the automatic sua- pension of the operator's, commercial.opera- tor's or chauffeur's license upon a final conviction of this.offense. "Sub-section a, 3ectFon 25, of this same Article authorizes the Court in which conviction is had to require the surrender of all opwretor's, commercial operator's, and chauffeur's license then held by the person so convicted. "Our Quwstlon No. 1 is: Whether or not the Texas Department of Public Safety has the authority under Section 26 of Art- icle 6687b, to require the licensee to sur- render his license certificate when the Court of conviction falls to order the surrender of the operator's, commercial operator's or chauf- feur's license. Question No. 2. Would notlfi- catlon made throug‘nformal suspension order to the licensee by regular U.S. mail constitute service under Sectlon 26 and make the llcensww subject to the penalty provided in paragraph 4 of, Section 32, if he falls to comply?" . Hon. Homer Garrison, Jr. - Page 2, V-91 The Legislature, in cnwatlng the Department of Public Safety, prescribed that it be generally responsi- ble for the enforcement of laws protecting the public safety, for the prevention and detection of crime, and that it malntaln principal office and headquarters in the City of Austin, where all of Its records sholl be Sew Title 70 Ch. 5 Vernon's Civil Statutes of ggti, and In partidular Akclw 4413. (1). The Department's duties are peculiarly deslgn- wd end conceived in connection with the enforcement of our traffic safety laws of which the driver's llcwnsw law is sn important part. The driver's license law, Ar- ticle 6687b, xontemplates that the Department of PublLc Safety shall be generally responsible for the administra- tion and enforcement of its provisions. Elaborate pro- visions are made for both the qualification of drivers and the issuance of evidence of such~qualifications in the form of licenses by the Department. The Act obvl- ously contemplates that the Department effect the with- drawal of licenses from those not entitled thereto and the Act should be so construed as to accomplish that purpose, whether the licenses were suspended at the hearing before the.board or upon an automatic suspwn- sion by virtue of a convlctlon of any of the offenses enumerated under Section 24 of Article 6687b, V.C.S., which embraces aggravated assault upon the person by means of e motor vehicle. Section 24 of Article 6687b, V.C.S., reads: "AUTOMATIC SUSPENSION OF LICENSES. (a) The 1lcwnsw of any person shell be automatically suspended upon final con- viction of .any of the following.offwnsws: ii+ “5. A convlctlon upon a charge of aggravated assault upon the person by means of motor vehicle, as provided by lsw. l * *" The word "automatic" has been defined by Funk and Waqnalls New Standard Dictionary of the English language as "acting as an automaton, or from forces in- herent or placed within itself; self moving or self rwg- ulating under necessary law". The Court in Cleveland Target Company vs. Empire Target Co., 97 Fed. 44. said: 'In common psrlance, 'automatic' means self-acting." Hon. Homer Garrison, Jr. - Page 3, V-91 It therefore follows that on a final conviction of aggra- vated assault upon the person by means of a motor ve- hicle the license is Immediately suspended under Sub- section 5 of Section 24 by force of the law without fur- ther act by anyone. Section 25 provides: "(a) Whenever any person is convicted' of any offense for which this Act makes automatic the suspwnsfon of the operator's, commercial operatorls, or chauffeur's li- cense of such person, the courtln which such conviction is had shall requlrw the surrender to it of all opwrstors', com- mercial operators', and chauffeurs' li- censes then held by the pwrson~so con- victed and the clerk of said court shall thereupon forward the same together with a record of such conviction to the Depart-: mwnt, within ten (10) days from the date of the conviction. "(b) Every court having jurisdiction over offenses committed under this Act, or any other Acts of this Ststw regulating the operation of motor vehfclws on highways, shall forward to the Department a record of the con- viction of any person In said court for a vio- lation of any said laws, and may recommend the suspension of the operator's, commercial opwra- tar's, or chauffeur% license of the person so convicted, as provided in Section 22 of this Act. v(c) For the purpose of this Act, the term 'conviction' shall mean a final convic- tion. Also, for the.purpose of this Act/a forfeiture of ball or collateral deposited to secure a defendant's appearance in court, which forfeiture has not been vacated, shall be wqulvalent to a conviction. "Provided, however, that in case of con- viction for any of the offenses enumwrsted in paragraph (a) of Section 24 of this Act, and the sentence of the court having been suspend- ed as provided in the Statutes, such suspended sentence shall not mitigate against the suspen- sion of the operator's,commwrclal operator's Hon. Homer Garrison, Jr. - Page 4, V-91 or chauffeur's license of the person con- victed." SectIon 25 directs the court to report to the Department all convictions of violations ,ofall laws regulating the operation of motor vehicles on the highways. The purpose of these requirements is to furnish the foundation for appropriate action by the Department. In the Instances where suspension is automatic the law recognizes that no further hwar- ing is required for the procedural "due process of law," because the person accused In the criminal ac- tion is bound to know, as a matter of law, that an automatic suspension of his driver's license ~111 be a consequence of his conviction. The right to the driver's license Is tried as a part of the same suit. The court is directed to Immwdiatwly take up the ll- cwnsw and the clerk of said court to forward same to- gether with a record of such conviction to the Depart- ment'wlthin ten (10) days from the dete of the convlc- tion. It Is incumbent upon the Court to require the surrender of the license and the clerk to forward same with the record of conviction to the Department. The court's failure, however, to require the surrwnd.wrof the license does not affect its suspension. Section 26 of Article 6687b provides: "The Department, upon suspending or revoking a license shall requlrw thst such license shall be surrendered to and retain- ed by the Department except thst at the end of the period of suspension of such license, the license so surrendered shall be returned to the llcwnsww." In our opinlon Section 26 deals only with sus- pension or revocations by the Depsrtmwnt itself and not in cases where the suspending or revoking is brought a- bout automatically by a conviction as enumerated In Swc- tion 24. Section 32 of Article 6687b provides: "It shall be unlawful for any person to commit any of the following acts: l * l (4) To fall to refuse to surrender to the Department on demand any operator's,com- mwrclal operator's or chauffeur's license .! Hon. Homer Garrison, Jr.,'- Page 5, V-91 which has been suspended, concelled or rw- vokwd as provided by lsw. l l *' We view this section as the Department's auth- ority to demsnd any operator's, commercial operator's or chauffeur's license which has been suspended, wither by the Department after hearing or by a final conviction upon a charge of aggrsvatwd assault upon the person by means of a motor vehicle under Subsection 5 of Section 24, suprs. You are therefore, advised in answer to your first question that the Department does not have the authority under Section 26 but does have under Section 32 (4) to require the licensee to surrender his license upon a final conviction of aggravated asssult by means of a motor vehiclw,.whwrw the court of conviction fails to require its surrender. It is hour opinion that sny customary form of communication written or verbs1 which is made by the Department and received by the licensee, that Is cal- culated to cIwarly inaicate a demand Is made under the authority of Section 32 (4) is sufficiwnt. We also think that evidence indicating a letter has been so forwarded creates w presumption that It has been received by the addressee. It should be pointed out In this connection that many defenses could be interposed to such a demand by mail. !Phebest procedure, therefore,,on which to predicate a prosecution for failure or refusal to SUP- render the license to the Department would be to per- sonally serve the licensee with a written demand. SUMMARY The Department of Public Ssfwty has authority under Sec. 32 (4) of Art. 668i’b V.C.S., (and not under Section 26 thereof I to require the licensee to surrender his license upon conviction of the offense of aggravated assault upon the person by means of motor vehicle where the court fails to require surrender of the license. A letter by the Department properly sddrwsswd, stamp- ed and deposited in the U.S. mall, dlrected to the llcensww, demanding the surrender of Hon. Homer Garrison, Jr. - Page 6, V-91 his suspended license is a sufficient "demand" under parsgraph 4 of 3wction 32 of Article 6687b, V.C.3. if rwcwlv- wd by the licensee. Yours very truly ATTORNEY GENERAL OF TEXAS BY Robert A. Hsli Assistant RAH/mrj/lh