. - 

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 administrative hearing pursuant to Article 668i'b, Section 22, 

V.C.S. of Texas, may proceed to 

hear the merits and enter a valid 

finding or order in the absence of 

the licensee's personal appearance 

or signed post 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 

Hearing brought under Art. 668733, ~Section 22, 

Vernon's Civil Statutes, proceed to hear the 

merits and make any valid findings or orders 

when the licensee does not appear at the hearing and there is no signed Post Office receipt 

showing delivery 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? 

(2) Would a susoension which resulted from such a 

hearing, i<void,F be given any additional validity by the fact 'that the licensee is subsequently 

given actual or constructive notice of said suspension? 

‘. 

WB assume from your wording of the first question that 

service by certified mail 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) 

validated by an official post office postmark. Presumably 

the notice was returned unreceipted for or is otherwise unaccounted for. 

Article 6687b, Section 22(a) provides, in part: 

n . a *Such hearing 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 shall be given to said operator or licensee 

not less than ten (10) days before said hearing. . . 

Notice by registered mail to address shown on the 

license of licensee shall constitute service for 

the purpose of this Section." 

Article 29c, Vernon's Civil Statutes, provides, in part: 

"All persons, firms S a O municipalities, counties 

and other political subdivisions of the state D . . 

are hereby authorized and empowered to use certified mail with return receipt requested in lieu of 

registered mail in all instances where registered 

mail has heretofore been required or may hereafter 

be authorized by law. The mailing of any required 

notice of hearing- 0 <by such certified mail 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 . . ." 

It is the opinion of this office that a Justice of the 

Peace may not conduct an administrative hearing under Article 

6687b, Section 22(a) and as modified by Article 29c, when the 

licensee does not appear at the hearing and where service is 

attempted by certified mail and there is no signed Post Office 

receipt showing delivery 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 situation where the Texas Department of Public Safety attempted 

to notify Appellant by certified mail of a hearing to determine 

whether or not Appellant was an habitual violator of the State 

traffic laws. The notice was returned to the Department undelivered and not receipted for. The Department held the hearing 

and suspended Appellant's license. The Court# in reversing 
. . 

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

Appellant's conviction for driving while his license is suspended, held "that service, as required by Section 22, Article 

6687b. was not had uoon Aonellant" and the susuension was 

void.' In accord, Sm'rth VI-State, 168 Cr.P. 185, 324 S.W.?d 

207 (1959). 

It is concluded that if the licensee does not appear at 

the hearing and the Department attempts notice by certified 

mail, it must produce the signed return receipt before the 

Justice of the Peace can proceed with the hearing. To do 

otherwise would 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 hearing where the licensee was given no notice 

of the hearing would not be given any validity by the licensee 

subsequently receiving actual or constructive notice of the 

suspensions 

Article 6687b, Section 22 (c), provides, in part: 

* 

. . .If any licensee who is a party to such 

final rulino and decision of the Deoartment 

fails within thirty (30) days to institute 

or prosecute a suit to set such suspensions 

aside, then said final ruling and decision 

of the Department shall be binding upon all 

parties thereto." (hlphasis added). 

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 

controversy between parties to a suit, the failure of the court 

to acquire personal jurisdiction of the licensee would render 

any orders or decrees of the court void. One not properly 

served with process and over whom the Court lacked personal jurisdiction could not be considered as "a party" to any "ruling 

or decision" of that Court. Therefore, the suspension would not 

be given validity by the mere fact that the licensee was subsequently given actual or constructive notice of the suspension. 

While it may be contended that the suspension of a driver's 

license is a civil matter to be decided by the civil courts, and 

undtir the statutory provisions in Article 6687b, Section 22 (a), 

service of notice is sufficient if mailed by certified mail, 

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 situations where no criminal prosecution arises 

under the statute and the same or similar situation, the result 

reached here would not necessarily apply. 

SUMMARY 

A Justice of the Peace in an administrative 

hearing brought under Article 6687b, Section 22, 

Vernon's Civil Statutes, may not proceed to hear 

the merits and make any valid findings or orders 

when the licensee does not appear at the hearing 

and where service is attempted by certified mail 

and there is no signed Post Office receipt showing delivery of the notice of hearing. 

A suspension resulting from a hearing where 

the licensee was given no notice of the hearing 

would not be given any validity by the licensee 

subsequently receiving actual or constructive 

notice of the suspension. 

eneral of Texas 

Prepared by Dunklin Sullivan 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

iiawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

Jo Betsy Lewallen 

Ralph Rash 

Malcolm Quick 

Fisher Tyler 

A.J. CARUBBI, JR. 

Executive Assistant