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Honorable Clifford Powell 

County Attorney Opinion NO. M-673 

Grayeon County Courthouse 

Sherman, Texas RS: Article 802f, Penal Code, 

and related questions. 

Dear Mr. Powell: 

You requested an opinion of this office concerning a 

suepension of an operator's license where a Defendant who 

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 "Implied Consent" law. 

Rephrased, your questions are as follows: 

1. Where, upon arrest for driving while intoxicated, first offense, a defendant refuses 

to take a chemical breath test and later is 

found guilty of misdemeanor driving while intoxicated and receives a probated sentence, is 

that Defendant &ill subject to the adminfstrative procedure 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,est for 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 filed by the arresting officer for Me 

Defendant's refumal to take the test atill required? 

Y 

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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 defendant who receives probation for the offense of 

misdemeanor driving while intoxicated (Article 802, Texas 

Penal Code), and who refuses to take the chemical breath 

teat upon arrest as provided in Article 802f, Penal Code, 

is subject to the administrative proceedings 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 automatically upon final conviction for the criminal 

offense of driving while intoxicated (Article 802, 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 the misdemeanor offense of 

driving while intoxicated is probated. There is no final 

conviction under 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 general public traveling the highways of Texas, and to require that the privilege 

of maintaining an operator's license be attendant with some 

oblisations and responsibilities. Gaytan v. Caaaidy, 

F.Su&. (W.D. Tex;. 

c- --. 

1970); Gillespie v. Tex;s Department 

L59 s.w.Zd 17 (1953) cert. 

aenfec 

,f-Zil&afet ~ 347 u.8.yh3;~i Tex. 459, 

Two separate Texas courts have held 

constitutional the procedure for hearings and appeal from 

administrative decisions founded under 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 

administrative procedures found in Section 22(a), Article 

668713, Revised Civil Statutes of Texas, as emended, which are 

civil end administrative in nature, generally independent of 

any criminal proceedings which may be instituted pursuant to 

other statutes or ordinances. The legislature provided in 

Section 2, Article 802f, that any individual shall have his 

license suspended if a sworn statement is filed by a law enforcement officer that he has reasonable grounds to believe 

that the arrested person did drive or was driving a motor 

vehicle upon public highways of this state while 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-' 

dividual was operating or had been operating a vehicle on 

the public roads of this state under the influence of intoxicating liquor. 

Thus, the legislature has established en additional 

civil sanction of possible suspension of driver's license 

by administrative hearing separate end independent of 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 administrative hearing 

may not take into account the finding of 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 guilty may not be considered for snx ur oae except to determine his entitlement 

to a future probat ,5?---- on under this Act, or any other probation 

Act." 

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

2. 

fin answer 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 conclusion or decision .--IT+- y t e administrative 

agent for the Texas Department of Public Safety. Such hearing, 

however, may be had or-ma continue either after or before - 

the defendant is f ound h Article 802. Vernon's 

Penal Code, of driving while-intoxicated, firat.offense, if 

the Texas Department of Public Safety wishes 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 the matter 

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 language which prohibits such hearing 

from taking place 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,t exlueio alterius:" 

II . . .Provided, however, that should such person 

be found 'not 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 persons driver's license; 

II . . . 

Had the legislature intended to prohibit the Department 

from instituting proceedings $+nder Section 22(a), Article 

6687b, to suspend the operator's license separately and independently of the automatic suspension provided 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 license where a guilty finding 

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honorable Clifford Powell, Page 5, (M-673 1 

is made the statute infers that all omissions were intended 

by the legislature and that the administrative proceedings 

are therefore maintainable. We find no basis in reason or 

legislative history 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 to be construed together to allow the guilty plea to nullify the effect 

and meaning of the implied consent test. 

Further, such interpretation would be unconstitutional 

under the coercion doctrine of U.S. v. Jackson, 390 U.S. 570, 

(1967), for it would place a premium on guilty pleas by saying 

that no operator's license can be suspended under 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 hearing must 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 

suspension voluntarily. 

3. 

In answer to your third question, it is our opinion that 

should an administrative hearing on sworn statement be held 

pursuant to Section 22(a) , Article 6687b, any suspension may 

run either concurrently or consecutively or both with the automatic suspension imposed by,Eection 24(a)(2), Article 6687b. 

Any other result would 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 in Article 802f, under Section 22(a), Article 6687b, 

the legislature has provided for more than the former minimum 

12 months revocation upon a finding of driving while intoxicated; 

whether or not that findin< is by administrative or judicial 

decision; without regard to and independent of the character 

or osigin of that finding , viz., civil or criminal. Whether 

the auepenaion periods run concurrently or consecutively is 

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Honorable Clifford Powell, Page 6, (M- :673 ) 

left solely to the administrative discretion of the hearing 

officer or magistrate. 

It is therefore possible that with consecutive terms of 

suspension, and under the proper factual circumstances, suapension of an operator's license may be for as long as a 

period of two years. 

We view the above conclusions as properly harmonious and 

comporting with the legislative history, object and purpose 

of the statute: An attempt to provide stringent regulation 

for safer highway travel in the face of sn increasing number 

of accidents caused by individuals who drive while intoxicated. 

SUMMARY 

A defendant who receives probation for 

the misdemeanor offense of driving while 

intoxicated, under Article 802, Texas Penal 

Code, and who refused to take the chemical 

breath test upon arrest as provided in 

Article 802f, Penal Code, is subject to the 

administrative proceedings 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 chemical breath test is not required, 

but may be held or brought to a conclusion, 

additionally suspending an individual's operator's license, where that person has been found 

guilty of the misdemeanor offense of driving 

while intoxicated and has received an automatic 

suspension under 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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Bonorable Clifford Powell, Page 7, (M- 673) 

Should an administrative hearing be held 

upon refusal of an individual to submit to a 

chemical breath test upon arrest, any suspension of an operator's license based upon Section 22(a), Article 668733, V.C.S., as amended, 

may run either consecutively or concurrently, 

depending upon the facts and decision of the 

hearing officer, with the automatic suspension 

imposed by Section 24(a) (2). 

YO very tr 

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& ./@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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