Hon. Homer Garrison, Jr.,

Director, Department of Public Safety Austin, Texas

Dear Sir: OpinionNo. O-1395 Re: A suspended sentence does not constitutea final convictionunder Article 

### 6687a,R.C.S. of Texas. This will acknowledgereceipt of your letter of September 

### 6, 1939, in which you submit for an opinion of thls department the question of whether 

### or not a suspended sentence given under the Driver's License law constitutes a final conviction,making necessary themandatory suspension or revocation of a driver's or chauffeur'slicense.

Paragraph (c),Section 

### 15,of Article 6687a, Revised Civil Statutes of Texas 1925, provides:



### *Forthe purpose of this Act the term, 'convlction,! shallmean a final conviction. Also, for the purpose of this Act, a forfeiture of ball or collateral deposited to secure a defendant's appearance In court, which forfeiture has not been vacated, shall be equivalent to a conviction." Paragraph (a), Section 16, of the abovementioned article provides that the license of any person shallbe automatically suspended or revoked upon flnal conviction of any of the offenses enumerated therein. Paragraph (b) of the same section and article provides that suchmandatory revocation or suspension shall be for a period of sixmonths for the first convictionand for a period of one additional year for the second conviction.

Articles 

### 776and 776a, Code of Criminal Procedure of Texas, 1925, is the authority for the suspension of sentence Imposed in felony cases except those of certain classes therein specificallyenumerated.

Article 

### 778,Code of CriminalProcedure ofTexas, 1925,provides that in cases where a suspended sentencz is recommendedby the jury and the samehas been granted

. . . neither the verdict of convictlon nor the,judgmententered thereon shallbecome final, except in the manner and at the time provided in the succeeding artic1es.e

Article 779, Code of Criminal Procedure of Texas, 1925, sets out in detail, themanner ofmaking finrd a judgment of convictionwherein a suspended sentencehaa been granted. It reads:Hon. Homer Garrison,Jr.,Page 2'(0-1395)

'Upo;l thefinal conviction of the defendant of any other felony pending the suspensionof sentence, the court granting such suspension shall cause a caplas to issue for the arrest of the defendant, if he Is not then in the custody of such court, and during a term of the court shallpronounce sentence upon the original judgmentof conviction,and shall cumulate the punishment of the first with the punishment of any subsequentconviction or convictions, and In such cases no new trial shallbe granted In the first conviction."

that Thus it clearlyappears from Article 779, supra, a sentence imposed upon a defendant and suspendedby

. . , -. - . proper juagmentcan never oecome rinal except upon tne happening of certain events, to-wit, a subsequentfinal convictionof another felony and the revocation of the suspensionand pronouncementof sentence by the court upon such former conviction.

Article 780, Code of Criminal Procedure further reflects the intention of the Legislature that a suspended sentence shall not be considereda final conviction. Such Article provides:

"In any case of suspended sentence,at any time after the expiration of the time assessed as punishment by the jury, the defendantmay make his written sworn motion for a new trial and dismissal of such case, stating therein that since such former trial and convictionhe has not been convicted of any felony, which motion shallbe heard by the court during the first term time after same is filed. If it appears to the court, upon such hearing, that the defendant has not been convicted of any other felony, the court shall enter an order reciting the fact, and shall grant the defendanta new trial and shall then dlsmles said cause. After the setting aside and dlsmissal of any judgmentof conviction as herein provided for, the fact of such conviction shall not be shown or inquired into for any purpose except in cases where the defendanthas %een again Indictednfora felony and invokeathe benefit of this law.
Our courtshave consistentlyheld that where suspended sentenceshave been granted there is no final convictionand no appeal can be had thereon. See Jones VS. State, 281 SW 1072; Beerman vs. State, 164 SW 840; Hill vs. State, 243 SW 

### 982and authorities too numerous to cite herein.Hon. Homer Garrison, Jr., Page 3 (O-1395)

It is the opinion of this departmentand you are so advised that there IB no mandatory suspensionof driver's license in the case of convictionwherein a suspended sentence **is** given unless and until such judgmenthas become finalby action of the court in keepingwith the terms and provisions of Article 779, Code of CriminalProcedure.

Truating that this satisfactorilyanswem your inquiry,we are Very trulyyours
ATTORNEY GERERALOF TEXAS

By **B/ LLOYD**  ARMSTRONG

Lloyd Armstrong Assistant LA:AW- ABM

APPROVED SEP. 23, 1939 s/GERALD C.MAHN ATTORNEYGENERAL OFTRXAS

UJF APPROVEBOPINION COBEITTRE By B.W.B. Chairman