The Attorney General of Texas 

July 8, 1980 

MARK WHITE 

Attorney General 

Honorable James B. Adams, Director Opinion No. MW-2 o 4 

Texas Department of Public Safety 

5805 N. 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 a grant of probation to 

constitute a final conviction, except when probation is granted under section 

3d, which provides for a deferred adjudication of guilt. Under section 24(a) 

of article 6687b, V.T.C.S., a final conviction of the 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 in this 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 was widespread 

disagreement as to the precise meaning of the 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 of persons 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 May 28, 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 

P. 659 
Honorable James B. Adams - Page Two (Mw-204) 

postpone the statute’s effective date beyond that fixed by the legislature. See Tex. 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 of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Dawn Bruner 

Doug Becker 

Susan Garrison 

Rick Gilpin 

Bruce Youngblood 

p. 660