# The Attorney General of Texas
July 8, 1980 MARK WHITE Attorney General

Honorable James B.Adams, Director Opinion No. MW-2 o4 Texas Department ofPublic Safety 5805N.Lamar Blvd. Re: Whether Attorney General Austin, Texas 78773 Opinion MW-133 should be given retroactive effect. Dear Mr.Adams: You icave requested our opinion regarding whether Attorney General Opinion MW-133(1980)should be given retroactive effect. In that opinion, we construed the effect of amendments to article 42.13, Texas Code of Criminal Procedure, on statutory provisions concerning the suspension of a person’s &iver’s license in &iving while intoxicated cases. We said that, whereas former article 42.13, Code of Criminal Procedure, had expressly provided that an individual who receives misdemeanor probation &es not have a final conviction, the amended statute &ems agrant ofprobation to constitute afinal conviction, except whenprobation isgranted under section 3d, which provides for a deferred adjudication ofguilt. Under section 24(a) of article 6687b, V.T.C.S., a final conviction ofthe offense of &iv@ while intoxicated results in the automatic suspension of the defendant’s license to drive. Thus, we concluded that the amendments to article 42.13, Code of Criminal Procedure, had significantly altered the law inthis area. These amendments, enacted by the 66th Legislature, Senate Bill 849, Acts 1979,66th Legislature, chapter 654, at 1514,took effect on Algust 27, 1979. Prior to the release of Opinion MW-133,(19801,there waswidespread disagreement as to the precise meaning ofthe amendments to article 42.13, Code of Criminal Procedure, and it appears that many attorneys in good faith advised clients to plead guilty in the belief that a grant of probation would prevent the suspension of their Biving privileges. In recognition of such reliance, you heve announced that the Department will record only those convictions which became final on April 1,1980,and thereafter. You inquire as to the status ofpersons convicted between Aqust 27, 1979,and April 1,198O. The amendments to article 42.12, Code of Criminal Procedure, were enacted by the legislature on May28, 1979,and signed by the Governor on June 13, 1979,but did not become effective until Algust 27, 1979. Neither the administering egency nor the Attorney General is empowered to

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postpone the statute’s effective date beyond that fixed bythe legislature. SeeTex. Const. art. I, s 29. We conclude therefore that every person convicted ofxiving while intoxicated on August 27, 1979,or s&sequent thereto, is subject to the amendments to article 42.13, Code of Criminal Procedure, which became effective on that date. While administrative realities may make it impossible for the Department to implement the statute at this time in all cases resolved after August 27, 1979,it should take the steps which sre administratively practical to enforce the statute from the time it became effective. SUMMARY

Amendments to article 42.13, Texas Code of Criminal Procedure, became effective on Atgust 27, 1979, and persons convicted of driving while intoxicated on that date or thereafter are subject thereto.

Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman DawnBruner DougBecker Susan Garrison Rick Gilpin Bruce Youngblood

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