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Mr. Willie 8. DuBose County Attorney Midland County Courthouse Midland, Texas 19701 Opinion No. M- 239 Re: Whether a Justice of the Peace, in an administrativehearingpursuant to Article 668i'b, Section 22, V.C.S. of Texas,may proceed to hear themerits and enter a valid finding or order in the absence of the licensee'spersonal appearance or signedpost office receipt showing delivery of the notice.of hearing upon him, and related question.
Dear Mr. DuBose:
In your Opinion Request to this office you pose the folkwing two questions: ,., (1) May a Justice of the Peace, in an Administrative Hearingbrought under Art. 668733, ~Section22, Vernon's Civil Statutes,proceed to hear the merits and make any valid findings or orders when the licenseedoes not appear at the hearing and there is no signed Post Office receipt showingdelivery of the Notice of Hearing, even though such notice is shown to have been sent by certifiedmail to the address shown on his license? (2) Would a susoensionwhich resulted from such a hearing, i<void,Fbe given any additionalvalidity by the fact 'thatthe licensee is subsequently given actual or constructivenotice of said suspension? ‘

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WB assume from your wording of the firstquestion that serviceby certifiedmail is not shown to have,been completed in that there is an absence of a receipt of notice therefor

-1167-Mr. Willie B. DuBose, Page 2, (M-239)

validatedby an official post office postmark. Presumably the noticewas returned unreceipted for or is otherwise unaccounted for. Article 6687b, Section 22(a)provides, in part:
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. a *Suchhearing shall be had not less than ten (I.01

days after notification to the licensee or operator under any of the provisions of this section, and upon charges in writing a copy of which shallbe given to said operator or licensee not less than ten (10)days before said hearing.

. . Notice by registeredmail to address shown on the licenseof licensee shall constitute service for the purpose of this Section." Article 29c,Vernon's Civil Statutes, provides, in part: "Allpersons, firms S a Omunicipalities, counties and other political subdivisionsof the state D
. . are hereby authorized and empowered to use certifiedmail with return receipt requested in lieu of registeredmail in all instanceswhere registered mail has heretoforebeen required or may hereafter be authorizedby law. The mailing of any required notice of hearing- 0 <by such certifiedmail shall have the same legal effect as if sent by registered mail, provided receipt for such certified mail is validated by official post office postmark

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It is the opinion of this office that a Justice of the Peace may not conduct an administrativehearing under Article 6687b, Section 22(a) and as modified by Article 29c,when the licenseedoes not appear at the hearing and where service is attempted by certifiedmail and there is no signed Post Office receipt showingdelivery of the Notice of Hearing, even though such notice is shown to have been sent by certified mail to the address shown on his license. Cathy v. State, 402 S,W.Zd 743 (Tex.Crim,1966), involved a situationwhere the Texas Department of Public Safety attempted to notify Appellant by certifiedmail of a hearing to determine whether or not Appellant was an habitualviolator of the State traffic laws. The notice was returned to the Department undelivered and not receipted for. The Departmentheld the hearing and suspendedAppellant's license. The Court# in reversing. .

Mr. Willie B. DuBoSe, Page 3, (W-239)

Appellant's conviction for drivingwhile his license is suspended, held "that service, as required by Section 22,Article 6687b.was not had uoon Aonellant" and the susuensionwas void.' In accord, Sm'rth VI-State, 168 Cr.P. 185, 324 S.W.?d 207 (1959).
It is concluded that if the licenseedoes not appear at the hearing and the Department attempts notice by certified mail, itmust produce the signed return receipt before the Justice of the Peace can proceed with the hearing. To do otherwisewould be to disregard the notice provisions of Article 6687b, Section 22(a).
It is also the opinion of this office that a suspension resulting from a hearingwhere the licenseewas given no notice of the hearingwould not be given any validity by the licensee subsequentlyreceiving actual or constructivenotice of the suspensions Article 6687b, Section 22 (c),provides, in part:

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. . .Ifany licenseewho is a party to such final rulino and decision of the Deoartment failswithin thirty (30)days to institute or prosecute a suit to set such suspensions aside, then said final ruling and decision of the Department shallbe binding upon all parties thereto." (hlphasisadded). Jurisdiction of the person of a defendant is acquired by service of such process as the law provides, or by his voluntary appearance, or by his waiver of service. Stanley v. Columbus State Bank, 258 S.W.Zd 840 (Tex.Civ.App.1953, error ref. n.r.e.1. As jurisdiction is the power of a court to hear and determine a controversybetween parties to a suit, the failure of the court to acquire personal jurisdictionof the licenseewould render any orders or decrees of the court void. One not properly servedwith process and over whom the Court lackedpersonal jurisdiction could not be considered as "aparty" to any "ruling or decision" of that Court. Therefore, the suspensionwould not be given validity by the mere fact that the licenseewas subsequentlygiven actual or constructive notice of the suspension. While itmay be contended that the suspensionof a driver's license is a civilmatter to be decided by the civil courts, and undtir the statutoryprovisions in Article 6687b, Section 22 (a), service of notice is sufficient ifmailed by certifiedmail, though not delivered, nevertheless, in view of the decision of the Court of Criminal Appeals construing that statute, the -1169-..

Mr. Willie 8. D&se, Page 4, (M-2391

Supreme Court has made it clear it will follow the decision of the Court of Criminal Appeals in construing the same statute in a penal case. Shrader v. Ritchey, 158 Tex. 154, 309 S.W.2d 812 (1958),
In other situationswhere no criminalprosecution arises under the statute and the same or similar situation,the result reachedhere would not necessarily apply. SUMMARY
A Justice of the Peace in an administrative hearingbrought under Article 6687b, Section 22, Vernon's Civil Statutes,may not proceed to hear themerits andmake any valid findings or orders when the licenseedoes not appear at the hearing and where service is attemptedby certifiedmail and there is no signed Post Office receipt showing delivery of the notice of hearing.
A suspensionresulting from a hearingwhere the licenseewas given no notice of the hearing would not be given any validityby the licensee subsequentlyreceiving actual or constructive notice of the suspension.

eneral of Texas Prepared by Dunklin Sullivan AssistantAttorney General
APPROVED: OPINION COMMITTEE iiawthorne

Phillips, Chairman Kerns Taylor, Co-Chairman Jo Betsy Lewallen Ralph Rash Malcolm Quick Fisher Tyler
A.J. CARUBBI, JR. ExecutiveAssistant