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Honorable Clifford Powell

County Attorney Opinion NO. M-673 Grayeon County Courthouse Sherman, Texas RS: Article 802f,Penal Code, and relatedquestions. Dear Mr. Powell:
You requested an opinion of this office concerninga suepensionof an operator's licensewhere a Defendantwho ham been arrested for driving while intoxicated, **first** offehne, refut?elr to mubmit to a Chemical Breath Tzs provrddd for in Article **802f,** Texas Penal Code, commonly referred to as tbe "ImpliedConsent" law. Rephrased,your questions are as follows: 1. Where, upon arrest **for** driving while intoxicated, first offense, a defendant refuses to take a chemicalbreath test and later is found guilty of misdemeanor driving while intoxicated and receives a probated sentence, is that Defendant &ill subject to the adminfstrativeprocedure to revoke his **operator ’** **e** license under provisions **of** Article 802f, Penal Code? 2. If the Defendant refuses **to take**  **the** chemical breath test upon arr,estfor timdemeanor driving while intoxicated and is later found guilty **of** said offense receiving a 12 months 

### l uspen6ion for caid offense **as** provided in Article 6687b, Section 24(a)(2), iu a pending administrative case filedby the arresting **officer for**  **Me** Defendant's **refumal to**  **take the**  **test atill**  **re** quired?

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Honorable Clifford Powell, Page 2, **(M-** 673 )

3. If the answer to question 2 is Yes, then do the two suspensions of the driver's license run concurrently or consecutively?

1.
In answer to your first question, it is our opinion that a defendantwho receivesprobation for the offense of misdemeanor drivingwhile intoxicated (Article802,Texas Penal Code), andwho refuses to **take** the chemicalbreath teat upon arrest as provided in Article 802f,Penal Code, is subject to the administrativeproceedings of Section 22, Article 6687b,Vernon's Civil Statutes, as amended, to revoke his operator's license. Accordina to Section 24(a)(2),Article 6687b, the operator's license **of** any individual is suspended for 12 months automaticallyupon final conviction for the criminal offense of driving while intoxicated (Article802, Penal Code). Attorney General's Opinions **Nos.** M-640, C-515, and C-685 held thatan operator's license is not suspended however,where conviction for themisdemeanor offense of drivingwhile intoxicated is probated. There is no final convictionunder the Misdemeanor Probation Law, Article 42.13, Texas Code of Criminal Procedure, where a probated sentence is imposed unless the probation is revoked. Attorney General's Opinion No. M-640. The Legislature has the right and power to enact statutes for the protection of the generalpublic traveling the highways of Texas, and to require that the privilege of maintaining an operator's licensebe attendantwith some oblisations and responsibilities. Gaytan v. Caaaidy,
F.Su&. (W.D.Tex;. c- --. 1970); Gillespiev. Tex;s Department L59s.w.Zd 17 (1953) cert. aenfec ,f-Zil&afet ~ 347 u.8.yh3;~i Tex. 459,

Two separateTexas courts have held constitutional the procedure for hearings and appeal from administrativedecisions foundedunder Section 22, Article

1960 writ).

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honorable Clifford Powell, Page 3, (M-673 )

Section 2,Article 802f,provides for utilization of the administrativeprocedures found in Section 22(a),Article 668713,

Revised Civil Statutes of Texas, as emended,which are civil end administrative in nature, generally independentof any criminal proceedingswhich may be institutedpursuant to other statutes or ordinances. The legislatureprovided in Section 2, Article **802f,** that any individual shall have his license suspended if a sworn statement is filedby a law enforcementofficer that he has reasonable grounds tobelieve that the arrestedperson did drive or was driving a motor vehicle upon public highways of this statewhile under the influence of intoxicating liquor end that the individual refuaed to submit to the test, end that the hearing officer finda upon hearing that probable cause existed that the in-' dividualwas operating or had been operating a vehicle on thepublic roads of this state under the influenceof intoxicating liquor. Thus, the legislaturehas established en additional civil sanction of possible suspension of driver's license by administrativehearing separate end independentof the automatic suspension impoaed by Section 24(a)(2),Article 6687b.l Article 802,Vernon's Penal Code, imposes a civil asnction.even though it'ia found in the Penal Code.

1 CAVEAT: Section 7(b),Article 42.13, Texas Code of Criminal Procedure provides that the administrativehearing may not take into account the findingof guilty after the probated case is dismissed by the court, in the following language: "After the case against the probationer is dismissed by the court,hia finding of guiltymay not be considered for snx ur oae except to determine his entitlement

,5?---- to a futureprobat on under this **Act, or**  any other probation Act."

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**.**Honorable Clifford Powell, Page 4, (M- 673 )

2. finanswer to your second question, it is our opinion that a pending administrative **case** filed under Section 22(a),Article 6687b,by the arresting officer for the defendant's refusal to take the chemical breath test, is not re uired to be heard or brought to a conclusionor decision y t e administrative .--IT+- agent for the Texas Department of Public Safety. Such hearing, however,may be had or-ma continue either after or before - the defendant is ound h Article 802.Vernon's

f Penal Code, of drivingwhile-intoxicated, firat.offense,if the Texas Department of Public Safetywishes to suspend the operator's license. Section 2, Article 802f, provides that upon refusal to take the chemical breath teat and receipt of a sworn report as to reasonable grounds by the arresting officer the Texas Department **of** Public Safety or its agent shall set thematter for a hearing as provided in Section 22(a),Article 6687b. There is no language, either directory or mandatory,which requires the hearing to be had or to continue after it is set; neither is there any languagewhich prohibits such hearing from takingplace after a conviction for the misdemeanor offense is obtained. We are strengthened in this reasoning by the.following language of Section 2,Article 802f,which invokes the maxim that the expression of a particular thing excludes the idea of something else not mentioned, or "expreasio unius ee,texlueio alterius:" II

. . .Provided,however, that should suchperson be found 'notguilty' 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 persons driver's license; II

. . . Had the legislature intended to prohibit the Department **from** institutingproceedings $+nder Section 22(a),Article 6687b, to suspend the operator's license separately and independently of the automatic suspensionprovided for in Section 24Ca)(2)of this same Article, our opinion is that it would have specifically done so. By failing to disallow suspension of an operator's licensewhere a guilty finding

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ismade the statute infers that all omissionswere intended by the legislature and that the administrativeproceedings are thereforemaintainable. We find no basis in reason or legislativehistory for any contention that the implied consent law,Article 802f,Vernon's Penal Code, and the criminal offense article,Article 802, of that Code, are tobe construed together to allow the guilty plea to nullify the effect and meaning of the implied consent test. Further, such interpretationwould be unconstitutional under the coerciondoctrine of U.S. v. Jackson, 390U.S. 570, (1967),for it would place a premium on guilty pleas by saying that no operator's license can be suspendedunder the implied consent law if the defendant pleads guilty to the criminal offense of driving while intoxicated,whether or not he receives probation. See a similar Ohio case Hoban v. Rice, 7 Cr.L. 2257,tJune 25, 1970). A hearingmust be held, however, to determine if probable cause exists to suspend the license and such hearing **must** comport with the requirements of Article 42.13(7)(a),Texas Code of Criminal Procedure, unless the operator waives his rights to a hearing and submits to the suspensionvoluntarily.

3.
In answer to your third question, it is our opinion that should an administrativehearing on sworn statementbe held pursuant to Section 22(a),Article 6687b, any suspensionmay run either concurrently or consecutively or both with the automatic suspension imposed by,Eection 24(a)(2),Article 6687b. Any other resultwould be tantamount to refusing to allow the legislature to impose additional reasonable responsibilities and obligations upon the privilege to drive the highways of this state. Simply stated,by enactment of the hearing provisions inArticle 802f,under Section 22(a),Article 6687b, the legislaturehas provided formore than the formerminimum 12months revocation upon a finding of driving while intoxicated; whether or not that findin< is by administrativeor judicial decision; without regard to and independent of the character or osigin of that finding,viz., civil or criminal. Whether the auepenaionperiods run concurrentlyor consecutively is

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left solely to the administrativediscretion of the hearing officer or magistrate.
It is thereforepossible thatwith consecutive terms of suspension, and under the proper factual circumstances, suapension of an operator's licensemay be for as long as a period of two years.

**We** view the above conclusionsas properly harmonious and comportingwith the legislativehistory, object and purpose **of** the statute: An attempt to provide stringentregulation for safer highway travel in the face of sn increasingnumber of accidents caused by individualswho drive while intoxicated.

SUMMARY

A defendant who receives probation for the misdemeanor offense of drivingwhile intoxicated,under Article 802,Texas Penal Code, andwho refused to take the chemical breath test upon arrest as provided in Article 802f, Penal Code, is subject to the administrativeproceedings of Section 22(a), Article 668713,

V.C.S., as amended, to revoke his operator's license.
A pending administrative case filed by the arresting officer for the defendant's refusal to take the chemicalbreath test is not required, but may be held or brought to a conclusion, additionally suspending an individual'soperator's license,where that person has been found guilty of themisdemeanor offense of driving while intoxicated and has received an automatic suspensionunder the terms **of** Section 24(a)(21, Article 6687b,V.C.S., as..amended, where the Texas Department **of** Public Safety deems such action necessary or proper.

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Should an administrativehearing be held upon refusal of an individual to submit to a chemical breath test upon arrest, any suspension of an operator's licensebased upon Section 22(a),Article 668733, V.C.S., as amended, may run either consecutivelyor concurrently, depending upon the facts and decision of the hearing officer, with the automatic suspension imposed by Section 24(a)(2).
YO very tr

4 yI ? & ./@s WFO C. MARTIN Attor y General of Texas Prepared **by** Bennie **W.** Bock, II Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Jim Swearingen Tom Sedberry Rex White Jay Floyd
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WbITE First Assistant Attorney General

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