The Honorable Wilson E. Soeir Oninion No. B-S37

Director Texas Department of Public Safety Re: When probation of a 5805North Lamar Blvd. driver's license susBOX 4087 Austin, Texas 78773

Dear Col. Speir: pension may be revoked.

You have requested our opinion regarding the "controlling event" in aviolation of probation of a suspended driver's license. Section 22of article 6687b,V.T.C.S., provides, inpertinent part:

(e)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 thepublic aswell as the defendant will be subserved thereby, recommend that the revocation or suspension be probated on terms and conditions deemed by thenofficer or judge to be necessary or proper. The report to thedepartment of the results of the hearing must include the terms and conditions of suchprobation. When probation is recommended by the judge

or officer presiding at a hearing, the department shall probate the suspension

or revocation.

p.3531The Honorable Wilson E. Speir -page 2 (H-837)

(f)When the director believes that a licensee who hasbeen placed on probation under Subsection (e)of this section has violated a term or condition of theprobation,.the director shall notify the licensee and summons him to appear at a hearing as provided in Subsection (a)or (d)of this section, after notice as provided in Subsection (a)of this section. The issue at the hearing shall bewhether

a term or condition of theprobation has been violated. The officer or judge presiding at the hearing shall report his finding to the department and if the finding is that a term or condition of theprobation isviolated, the department shall revoke or suspend the license as determined in the original hearing.

You state that in the usual situation the licensee violates aprobation condition that he notviolate any traffic law of the State of Texas. Inmany instances, the Department isnotified of a traffic offense only a short time before theprobation period expires, and frequently, such period has in fact expired by the time the notice of hearing reaches the licensee. You therefore askwhether thedate of the actual traffic offense which serves as the basis of theprobation violation hearing, the date of final conviction of such offense, or some subsequent date, is the controlling event indetermining whether the Department must hold ahearing.

In our opinion, thedate of the actual offense is the controlling event. By analogy, it iswell established that the dates of the offenses, rather than the dates of final conviction, control indetermining whether fourviolations have occurred within aperiod of 12months for purposes of license suspension hearings. Drake v. Texas Department of Public Safety, 400 S.W.2d 819, 822 (?%x.Civ.App. -- FOX Worth 1966, writ ref'd n.r.e.1. See also Texas Department -- of Public Safety v. King, 366 S.W.Zd 215, 219-20 (Tex.Sup. m63).hus, we conclude that the date of the commission of the offense is the controlling event inaviolation of probation of a suspended driver's license.

p.3532The Honorable Wilson E. Speir -page 3 (H-837)

SUMMARY

The date of the commission of the traffic offense which serves as thebasis for holding aprobation violation hearing is the controlling event indetermining whether there hasbeen aviolation of the terms of probation during the probationary period for a suspended driver's license.

APPROVED: Attorney General of Texas

C. ROBERT HEATH, Chairman Opinion Committee
jwb

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