Untitled Texas Attorney General Opinion

OFFICE OF l-NE ‘A~ORNE~GENERAL OF TEXAS AUSTIN rablO%onor Qtarrimm, Jr. tmenli of Publio Safety eeld conviction, when judgment ha8 been de- Esrrrd, ae provided under Seotlon 25 of H. B. no. 20., in order to eifsot the me- penelon of the dr$ver's li~eum.* The applieablo statutory provlsione are ae follower Artlale 808, Pen&l Cods, ea amended by House Bill MO. 7s of the Fortyd3eYonth Legislatar?, Regular Sessiont *Art101s 808. *Any _ -- paman who_ driver or operate8 __ _ an autor3oDlle or any otner motor vehlc15 upon any pubU0 road or highway ,Sn thlo State, or upon any atreet or alley wIthin the-limlte of aa fneorpor8ts4’ ofty, town or .vill~e, while suoh.pereon in intodoated or ruder the lnfluenoo of intoxbatlog liquor,~&all be gtaty or 8 ~L~~~SUFIFQO~, 4~14 uppott c0nti0ti0n, ehall be pIUli8hed by confinemsnt in the county Jail ror nbt bsr than ten (10) days nor more than two (2) yeati, or by a fine of noti less thau rifty Dollan 50) nor mtvm than Five EItttMrs4Dollars 8s 001, or.by both aueh rim attd impri~otiment.~ Artlols 690, Code of Criminal Proasduro, a8 amended by lbtrr o? 1931, Forty-Second Legislature, Ch. 59, p. 59: *Al%. 6881 Yud#pllen*on rurdiot *On each~verillLrt of aoqulttal or oonvie- tion, thr proper judgment shall be antsred lmmllately. Xf aaquitted the defendant #hall be at one8 dlsoharged from all further llabflity~ upon the ahargo for nhloh he MS tried; provided ..tbt, In mlebemeamor oases where there is re- turned a rerdiet, or a plea of guilty is enter- eb and the punlelrment assessed 14 by fine only, the Court may,, onwritten request of the dsienb- ant and ror good oautse shown, defer jridgmnt until fmne other day fired by order of 'the court; but in no event rhall.the judgment be deterred for a longer perioQ bf tilar than &2x (6) rmmth6. On erpiration ot the tima fifed by the order of the Court, the C,ourt or Sud& there- of, ahell enter Judment on the verdict QT plea hsiorable Bmisr Oar&son, Jr,, .Page 23 and the aaxe shall be exesutbd as provided by Chapter 4, Title 9, of the Coda of Grim- im&Froosdurs of the %ate or Temm. Pm- vided tuxther, that the Gourt or Judge thereof, In the axeraIse of eound dlsoretion may pemlt the defendant tiere judgment is deferred, to remain at large on his own reoognhanoe, .or may require him to enter into bodd In a stug Ja@t lsast dauble the, aPl0u.a 0r the. a8ssas.~ tin0 and costs ~00~4 dltfoned that t&s dshbant and sum&s, jointly and smverall$ will pay mob rine and owts unlesss the d~stahdant personelly appears on the day set la tha aider and’dls- oharges the jud@mnt in the.maaner provided by Chapter 4, Title 9 of the. Code of CrIm- foal ~Procebure OS the State OS Tena8.r and. for the ssUore&rpsnt oi asg judgmsat entered, all wrIta, prot#ssses and ressdles of the Csde oS.Cri.mIml Procedure are .au& applicable .so far as necessary to aarrjr out the provi- eions of this Artiole.~ BeatIon t4 of Iiouso'Bill No,.80 (Thb DrIver*s troense Law), Forty-Ssventh fiegilatuxs, l@l( mo. 84. a&uetio suspension of Xi- oense. s(a) The licensa of any person shall be automatioally suspendob upon final oonoia- tion of any of the tollmIng ofrenaes8 *. . . WE. Driving a motor 7ehIole while under the influenoe of intoxioating liquor or narootio _. dmissl *. . . w(b) The suspension abovs provided shall in the first ,Instams be for a JY3rIod of ‘six. { 6 ) months. & event any llaense shall be BUB- pen&Q under the provision of this Seatisnior a setjood time, seid eeo~na stUupel3d.O~Shall be for a period of 0110 (1) year*” Donorable Homer Cerrison, Jr., Page 4 section 88, Ibid..t Y3ec. 25. Khen court to report convic- tions. *(a) liil;enever any person Is oonvicted of ang oftehfm ror uhiah this, Aot makes automtlo the suapdnaion ot the operator’s, osmasroial operetor’s, or .chauifeur’s lloense of auoh person,, the court ‘in whii~h such oonvlotlon Is had shall require the surrender to It ,of all opereitors’~~ comuerolel operatora*,end ohauf- feura’ lloesses then held by the peraon,so oonvloted and the glerko$ said oourt shall -thereupon forward the same together with CL reooml of such oonviotion to the DepartTent, v&din ten (lo) days rrom the dqte o$ o~vio- . “. l . wto) For the purpose of this Act, the term ‘conviotion’* shall mean a tinax cantic- tion. ~I.sb, $ o r ~ the p u r p q e. of this Ac t, a .. $orfeiture of bail or ooll~teral deposit& to s’eoure a dsfemImnt8s appearan0.e in court, which rorrdtum bfi nPt been -8tkd43a. shall be e~tivalsnt to a .oonviotlon. Vrovided, however, that in ease or eon- vlotion for any OS the offensss enumerated In paragreph (a) ol Seotion 84 of .thi8 Aot, aha the sentenoe OS‘the oourt having b+sn’ SUIB~ pentled as provided In the statutes,. suah mu-. pended sentenoe shall not mitigate against the mepension of the operatorv.s, oommerolal , oaerator’a, or ahaurreur’a lloehee or the person convidi3d.n In anmering your qtumtion weenrust determlne Whether the WoonviotioP referred to in Al’t1cJ.e $98, .C. CT P., aupa, 1s a final one tithin the zaednihg .ot subseotions, (6) an4 (0) of the Driver’s Uosnse Law,- supro, *hen j,udgm3ntcx ia %3ferpP6dw as prov%aea, 3t23 Xn our opinion So. OW482, approved July 17, 194l, the le ;islative history of’the 1921 anendmnt to Artid 698, C. C. P., was dieouesed. It was there said: T?rlor to the amnbnent ot Artiols 690 in 1931, said Article raqtirea that the pro- per judgment ‘be entered immediately.* In a oa8e such aa resented by the Bets submitted, where the D IJ sbnent vma merely a fine. the deiendant,‘undet Artioles 785 and 7iC3,*sither had to nake Lmmedlate payment of the tine and oasts. or bat- olaoed in Jail%!aediafel~ for a euffi6ient Ian&h of time to aleoharne the full mount OS-fine and caste at the-rate or fx5.00 psr atiy. In counties where there was no *workbouse,v ‘oounty farm’ or vpubllo im- provemsnt of the county,’ the various oouutles were burdened with the expenee of keep5hg end ireding such prleoner until he had &aye4 in jail for the number oi day? required to Qis- ohares the fine and costs at the rate meation- 0a. The imexgenoy olasusqof the Aat eaea&ing Broeeauxs Artlole 096 of the Code of Crimlrral (42nd I.eg.it!laturs. page 59, Qhagter 29, Seotion **Bee. 2. The faot that there .isno p~ovlsion oi the law whereby a person <y 02 misdemeanor, and whose punish- sent hae been assesmd by iina only, may have an opportunity to pay the aam ahd that the areeent law work8 a hard&& on many oounties or the *tatej oreates an amergmcy, . . .’ ( Vnde2soaring ouxy 1 *It is our opinion, therefore, that tbo teg;in- ,~.i ’ lature’lntended by said emendxmnt to give the r oourt authority to give the defendant an oppor- tunity to raise the money and pay the fine and ooete ii the oourt in its disOxetlOn saw fit to do 80 ton written requmt of the deIendanb and for good cause shown.* Said a%endment #hot&d, thererore, be 80 oonstrusd,atv to ;>vs it the ; efieat intended by the Legirrlature. DonOrable Honk rarrlson, or., Page 6 Tb are of the cpinlcn that, the mere faot that the juC,pCnt was peepared and signed by the county judge, would not of itself preclude the judee from matting aside the juQmsnt and aocoptine the defendant'0 bond and entering an order deferring the judgment for any period not to exoeed sir mont:ia, prov-ided the defend- ant makes his re:ueat and showsproper oause before the judginent has bP6m executed and be- fore the end of the term. It is a general rlzle that .a judgment may be set aside at any time before the end of the term et rrhioh it was rendered, either upon the court*8 own motion or motion of a party. 25 Tax. Jur. p. 546. Ehether 'good cause' is shown is within the court's diesretion. . . ." Thus we 968 that the judgment 18 treated as a final jud&nerct in the aenee that applZoation for deferment must be made before the end of the term at pmlch.thr! convlotion"waa obtained. X6 likewise Bee that the objbot of the amendment, was to enable the oonviat and to reduob the hardfghlp on the oouutiee expense or fedhg nriaonera unable to oav finee. The 4lDDliOatiOi.i or Artiole 698~~baanothing .to~6: ,;tfth the guilt & illllOO@Jn!38 ot the aooused~ it Is merely a means prbridad by branoh of our government to enable earn the mosey to pay the fine and In so far a8 the operation of the Driver's License Iaw it3 oonoerned, it is our o.plnioa that a conrlot~on is a "final osnviotion" within ite terma; even though judgment be deferred in accordanoe with the provislone of Article 698, c. c. P., eupra. In view of the foregoing, you are respectfully ad- vised in the opinion or this department the court should that require the surrender to it of all operator'LI* oolmaercial and ohauffeurs* licenses then held by the pereon c"~$%'kmnediai+ely upon the Operation of the verdiot of guilty of a jury, or the pronounceslent of the court whore a jury la waived. By this we mtw when the judgment becomee % *final* one in the s~tn8e that it map not be ap- pealed Or set aside by the granting of a new trial. In Bonorable Homer Garrieon, Jr., kage 7 the event of 50 appeal the judgment is vinai- upon erpira- tion of the term of the oourt et whRhich the trial is held; if.tippealed, upon the issuance of the nandate of the e?pel- late court. See Article8 826, 850, 851, Code of Criminal proaedured Yours very truly AWQRNEYGEU%4L CF 'EXAS Benjamin iyoodall ABriutant