dissenting.
A jury would not be authorized to acquit or to assess a lesser fine or shorter jail term because the defendant would automatically lose his license to drive a motor vehicle.
Aside from the punishment by fine and jail term which the court explained to the jury, other effects of a conviction were not material and were properly excluded.
I respectfully dissent.
ON STATE’S MOTION FOR REHEARING
MORRISON, Judge.In a scholarly motion for rehearing and in argument presented by Jim Bowie of the district attorney’s staff, the state has helped the writer reappraise the holding in Taylor v. State, 151 Texas Cr. Rep. 568, 209 S.W. 2d 191, relied upon by the majority on original submission. In the original opinion in Taylor, the court held that the question of revocation or suspension was not a matter for the jury’s consideration and therefore that it was not proper for the court to mention the same in his charge.
*381On rehearing, the court made the pronouncement quoted in our original opinion, but this was in connection with certain constitutional challenges hurled at Section 24, Article 6687b. Since such challenges were not stated forth in the opinion, the writer is unable to properly appraise the language quoted, but does observe that the original holding was not altered and the court remained committed to the proposition that the question of revocation was not a matter for the jury’s consideration.
I now approach the problem anew.
Shall counsel in the presentation of his case and in argument be allowed to allude to the automatic suspension of the accused’s driver’s license as a consequence of conviction? In order to authorize the same, it must be part of the “punishment” affixed to such offense.
Article I, V.A.P.C., says that the design of the Code is, in part, “to affix to each offense its proper punishment.”
Article 47, supra, provides, in part: “An offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this ‘Code’.” It should be borne in mind that Article 802 V.A.P.C., which denounces driving while intoxicated, does not mention suspension of the license and that Section 24 of Article 6637b, V.A.C.S., is not a part of the Penal Code.
Article 48, supra, provides, in part: “The punishment incurred for offenses under this Code are * * * * (5) Forfeiture of civil or political rights.” (Italics mine).
The question then poses itself: Is the right to drive a civil right or it a privilege?
The Texas Supreme Court in Gillaspie v. Department of Public Safety, 259 S.W. 2d 177, speaking through Justice Smedley, has held that it is a privilege and not a right.
In further support of such holding, if any be needed, see Tatum v. Department of Public Safety, 241 S.W. 2d 167; Department of Public Safety v. Robertson, 203 S.W. 2d 950; and Texas Department of Public Safety v. Jackson, 272 S.W. 2d 577.
We have been cited a number of cases from other jurisdictions which hold that a revocation of a license is not to be con*382sidered as a part of punishment. See Prichard v. Battle, 17 S.E. 2d 393; Davis v. Commonwealth, 75 Va. 944; Hawker v. New York, 170 U.S. 189, 18 Sup. Ct. 573, 42 L. ed. 1002; State v. Harris, 52 N.W. 387; and Norfolk & Portsmouth Bar Assn. v. Drewry, 172 S.E. 282.
The question of whether the revocation of a license to drive is part of the punishment upon conviction for driving while intoxicated has been decided favorably to the state’s contention that revocations and suspensions are not intended as punishment but are designed solely for the protection of the public in the use of the highways in Commonwealth v. Harris, 128 S.W. 2d 579; Commonwealth v. Ellett, 4 S.E. 2d 762; Thompson v. Thompson, 78 N.W. 2d 395; and Butler v. Commonwealth, 53 S.E. 2d 152.
In fact, this court in Gilbert v. State, 152 Texas Cr. Rep. 200, 212 S.W. 2d 182, said:
“* * * Appellant’s driver’s license is automatically suspended by law upon such conviction, it being a matter which is beyond the control of both the trial court and the jury * *
To recapitulate: Taylor v. State, supra, holds that the question of revocation of the driver’s license shall not be submitted to the jury in the court’s charge. Beach v. State, 150 Texas Cr. Rep. 193, 199 S.W. 2d 1020, holds that revocation of the driver’s license is not a proper part of the verdict. And McIntire v. State, 135 Texas Cr. Rep. 285, 117 S.W. 2d 1093, holds that revocation of the driver’s license is not a proper part of the judgment.
Still another case comes to our attention. A very kindred question was before this court in Johnson v. State, 116 Texas Cr. Rep. 185, 31 S.W. 2d 1045.
Johnson was charged with the felony offense of driving while intoxicated, and the state made a motion, such as was made in this case, and secured a ruling from the court prohibiting appellant’s counsel from alluding to the fact that a conviction in the case then on trial would result in a revocation of a suspended sentence which the accused had theretofore received. This court upheld the trial court and said, in effect, that the ancillary results of a conviction were not a part of the punishment proscribed by the legislature to the offense then on trial, and therefore were not proper matters for the jury’s consideration.
*383Then, if the question of a revocation is not a part of the pun-Iishment and is not a proper part of the charge, verdict or judgment, it is not a question for the jury’s consideration, and the original opinion of the majority in the instant case was unsound.
The state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.