The Attorney General of Texas
July 3, 1978
Honorable Ogden Bass Opinion No. Ii- 1201
Brazoria County District Attorney
Angleton, Texas 77515 Re: Whether a magistrate in an
administrative driver’s license
suspension hearing authorized by
67011-5, V.T.C.S., has the power
to probate the suspension of the
driver’s license.
Dear Mr. Bass:
You have requested our opinion as to whether a magistrate in an
administrative hearing under article 67011-5, V.T.C.S., is authorized to
probate the suspension of a driver’s license.
Section 2 of article 67011-S provides:
If a person under arrest refuses, upon the request of
a law enforcement officer, to submit to a chemical
breath test designated by the law enforcement officer
as provided in Section 1, none shall be given, but the
Texas Department of Public Safety, upon the receipt
of a sworn report of the law enforcement officer that
he had reasonable grounds to believe the arrested
person had been driving or was in actual physical
control of a motor vehicle upon the public highways of
this State while under the influence of intoxicating
liquor and that the person had refused to submit to the
breath test upon the request of the law enforcement
officer, .shall set the matter for a hearing as provided
in Section 22(a), Chapter 173, Acts of the 47th
Legislature, Regular Session, 1941, as amended (Article
66874 Vernon’s Texas Civil Statutes), if, upon such
hearing the court finds (1) that probable cause existed
that such person was driving or in actual physical
control of a motor vehicle on the highway while under
p. 4822
Honorable Ogden Bass - Page 2 (H-1201)
the influence of intoxicating liquor at the time of the arrest
by the officer, (2) that the person was placed under arrest by
the officer at such time and before offering the person an
opportunity to be tested under the provisions of this Act,
and (3) that such person refused to submit to the test upon
request of the officer, the Director of the Texas
Department of Public Safety shall suspend the person’s
license or permit to drive, or any nonresident operating
privilege for the period ordered by the court, but not to
exceed one (1) year. If the person is a resident without a
license or permit to operate a motor vehicle in this State,
the Texas Department of Public Safety shall deny to the
person the issuance of a license or permit for a period
ordered by the court, but not to exceed one (1) year.
Provided, however, that should such person be found %ot
guilty” of the offense of driving while under the influence of
intoxicating liquor or if said cause be dismissed, then the
Director of the Texas Department of Public Safety shall in
no case suspend such person’s driver’s license; or, in the
event that proceedings had been instituted resulting in the
suspension of such person’s driver’s license, then the
Director of the Texas Department of Public Safety shall
immediately reinstate such license upon notification of such
acquittal or dismissal by the county clerk of the county in
which the case was pending. Notification to the Director of
the Texas Department of Public Safety shall be made by
certified mail.
Thus, under the terms of the statute, a hearing must be held whenever an officer
has “reasonable grounds” to believe that a person has been driving a vehicle while
under the influence of intoxicating liquor, and that person refuses the officer’s
request that he submit to a breath test. If the magistrate makes certain findings,
the statute requires~the suspension of the person’s license to drive for a period of
up to one year. You ask whether the magistrate may probate this suspension.
The hearing contemplated by article 67011-5 is the kind “provided in Section
22(a). . . article 6687b. . . .I’ Section 22(e) of article 6687b provides:
The judge or officer holding a hearing under Subsection
(a), (b), or (d) of this section, or the court trying an appeal
under Subsection (c) of this section, on determining that the
License shall be suspended or revoked, may, when it appears
to 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, recommend that the revocation or
p. 4823
Honorable C&den Bass - Page 3 (H-1201)
suspension be probated on terms and conditions deemed by
the officer or judge to be necessary or proper. The report to
the department of the results of the hearing must include
the terms and conditions of such probation. When probation
is recommended by the judge or officer presiding at a
hearing, the department shall probate the suspension or
revocation.
The procedure of section 22(a) is applicable to a hearing based upon failure to
submit to a breath test, and section 22(e), which authorizes probation of the license
suspension, is applicable to hearings under subsection (al. It follows therefore that
probation of the license suspension is a permissible alternative in any hearing based
upon failure to submit to a breath test.
Attorney General Opinion M-496 (19691, which held that probation is not
permitted for an automatic license suspension after a conviction for driving while
intoxicated unless the entire judgment of conviction and sentence is probated, is
not to the contrary. That opinion dealt with automatic suspension based upon a
criminal conviction under section 24 of article 6687b. Section 22e of article 6687b,
on the other hand, applies only to the authority of a judge acting in an
administrative capacity. Accordingly, it is our opinion that a magistrate in an
administrative hearing under article 67011-5 may probate the suspension of a
driver’s license.
SUMMARY
A magistrate in an administrative hearing under article 6701
1-5, V.T.C.S., may probate the suspension of a driver’s
iicense.
APPROVED:
/
p. 4824
Honorable Ogden Bass - Page 4 (H-1201)
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
p. 4825