Honorable Don Hall Opinion NO. c-626

Criminal District Attorney Waco, Texas Re: Suspension of driver's license of defendants after being convicted of the misdemeanor offense of DWIor the felony offense of DWI second offense and being Dear Mr. Hall placed on probation.

In a recent opinion request of this office you posed the following question:

"Whether a person pleading guilty to DWI2nd offense, under the new Code of Criminal Procedure, and receiving a probated sentence will automatically lose his driver's license." In addition, In your opinion request you set out-the following paragraph:

"We would in particular appreciate this opinion to consider the question in misdemeanor DWIpleas in which, it Is our understanding, that a plea of guilty resulting in probation does not require automatic loss of driving privileges." This opinion will, therefore, not only consider whether or not a person automatically loses his driver's license after pleading guilty to driving while intoxicated, second offense, and $8 placed on probation, but will also pertain to possible loss of driving privileges when a person pleads guilty to the misdemeanor offense of driving while intoxicated end Is ' placed on probation.

Article 6687b, Section 2&(a), Vernon's Civil Statutes, provides as follows:

"The license of any person shall be automatically suspended upon final conviction of any of the following offenses:

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Honorable Don Hall, page 2 (C- 626)

II

. . * ”2

. Driving a motor vehicle while under the Influence of Intoxicating liquor or narcotic drugs;” Article 6687b, Section 25 (c), second paragraph states as follows:

“Provided, however, that in case of I:, conviction for any OS the offenses enumerated in paragraph (a) of Section 24 of this Act, and the sentence of the court having been suspended as provided in the Statutes, such suspended sentence shall not mitigate agalpst the suspension of the operator’s; commercial operator’s, or chauffer’s license of the person convicted.” It aceme clear that the legislature has evidenced its Intent that a person finally convicted of the offense of driving while intoxicated shall lose his driving privileges even though as a result of said conviction his sentence is suspended.

Article 54.02, Vernon’s Code of Criminal Procedure, 1966, expressly repeals Articles 766 through 781, Vernon’s Code of Criminal Procedure, 1925, which authorized suspended sentences In Texas. Therefore, Texas no longer has what was commonly referred to as a suspended sentence. However, Article 42.12, Vernon’s Code of Criminal Procedure, 1966, commonly referred to as the Adult Probation and Parole Law, authorizes, under certain circumstances, the suspension of sentence and placid on probation of a defendant convicted of a felony. Article & 2.12A, Section 1 (b), defines “probation” as follows:

“‘Probation’ shall mean the r&lease of a :

convicted defendant by a court under conditions imposed by the court for a specified period during which the impositlon of sentence Is suspend~ed.‘! Article 42.12B, Section 3, provides as follows:

“The judges of the courts of the State of Texas having original jurisdiction of criminal actions, when it shall appear to

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the satisfaction of the court that the ends of justice and the best Interests of the public as well as the defendant will be subserved thereby, shall have the power, after conviction or a plea of guilty for any crime or offense, where the maximumpunishment assessed against the defendant-does not exceed ten years imprisonment, to suspend the imposition of the sentence, and may place the defendant on probation or impose a fine applicable to the offense committed and also place the defendant on probation as hereinafter provided. Any such person placed on probation, whether in a trial by jury or before the court, shall be under the supervision of such court." It is thus seen that although we no longer have In Texas a suspended sentence law, Article 42.12, which authorizes the granting of probation undercerta%ncircumstarlces speaks in terms of the sentence being suspended when a defendant is placed on probation. It Is the opinion of this office, therefore, that when a person is convicted of the felony offense of driving while intoxicated, second offense, and placed on probation in accordance with the terms of Article 42.12, Article 6687b, Section 25 (c), second paragraph requires that his dirvier's license shall be suspended, and he shall lose his driving privileges in accordance with the terms of said article.

This office Is not unmindful that it can be argued that Article 42.12, applies to misdemeanor convictions was well as felony convictions. Said Article makes no distinction between felonies and misdemeanors but rather, as seen by Section 3, simply states that the judges of the courts of Texas may grant probation under certain conditions after conviction or on a plea of guilty for any crime or offense where the maximumpunishment assessed against the defendant does not exceed ten years imprisonment. Standing alone this language could be construed as meaning that the legislature intended for Article 42.12, to apply to misdemeanors as well as felonies. However, since the legislature enacted Article 42.13, Vernon's Code of Criminal Procedure, 1966, designated as the Misdemeanor Probation Law, it is the opinion of this office that the legislature has evidenced Its intent by the enactment of said special statute that the granting of misdemeanor probations is to be governed by Article 42.13,

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### HonorableDon Hall,page 4 (c- 626) r

rather than Article 42.12. It Is our opinion, therefore, that whether 

### a personloses his drl%+@a license after being placed on probation after conviction of the misdemeanor offense of driving while Intoxicated depends upon the construction of Article 42.13, in conjuctlon rith Article 6687b, rather than upon the reasoniag above set out with regard to a conviction for the felony offense of driving while intoxicated, second 

### offense.

Prior to January 1, 1966, there was no sentence In a mledemeanor 

### case in Texas. Moor was there available after a misdemeanor conviction a suspended sentence or a probated sentence. However, Article 42.02, Vernon’s Code of Criminal Procedure, 1966, states as follows:

“A ‘sentence’ is the order of the court in a felony or a misdemeanor case made In the presence of the defendant, except In misdemeanor cases where maximumpossible punlahment ia by fine only, and entered of record, pronouncing the judgment 

### and ordering the same to be carried into execution in the manner prescribed by law.” It Is thus,seen that there is now a sentence In mlsdemeanor cases In Texas, except where the maximumpossible punishment is by fine only, and If a person convicted of the misdemeanor offense of driving while intoxicated were placed on probation and his sentence suspended In accordanee with Article 42.12, then the above set out reasoning with regard to driving while Intoxicated felony offense0 would apply. However, as stated previously, it is our opinion that Article 42.13, the Nlsdemeanor Probation Law, governs the granting of probation In misdemeanor cases. Therefore, we must look to the terms of said Article to determine whether a person convicted of the misdemeanor offense of driving while intoxicated automatically loses his driver’s license upon conviction and being placed on probation for sald offense. Article 42.13, makes no reference to the suspension of sentence in connection with placing a defendant on probation In a misdemeanor case. Rather, Section 4 (a) of said Art&le.&ate6 

### as follows:

“Whena defendant Is grated probation under the terms of this Act, the 

### finding of guilt does not become final, nor may the court render judgment thereon, except as provided in Section 6 of this Article.”

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Honorable Don 

### Ball,page 5 (C- 626)



### Article 42.13, 

### section6, 

### in as follows: "(a) If a probationer violatesany term of hle probation,the courtmay cause hle ureet by rerrantae ln other caeeeI The probationerupon arrest shall be 

### broughtpromptlybe?ore 

### the court aauelng hle arreetand 

### the, court,upon motion of the etrteand aftera 

### hearingwithout a jurymay continue,modifyor revoke 

### the probation UJ 

### the evidencewarrante. "(b) On the date theprobationIs revohad, 

### the finding 

### of guiltybecomes final and 

### the court shallrender judgmentthereon againetthe defenderit. The judgment ehallbe enforced 

### as in other 

### caeee end the 

### tire rerved on probation may not be 

### creditedor othenlee consideredfor any purpose.

n SinceArticle42.13,makerno referenceto the suspmeion of l



### entence In tiedemeanoreaserwhen robatlon ha8 been granted, 

### and furthermore,sinceSection% of sald Articlepreclude8the court fro8 even eaterlng judgmentupon a findingof guilty except If end uhen aaId 

### probationis revokedae provided In Section6 of 

### thatArticle, It 1s the opinionof this office that a person 

### placedon probation afterbeing found guiltyof themladeneanoroffenseof drivinguhlle intoxicated doesnot automaticallylose his driver'8llceneeelateArticle66&7b, 

### Section25 (c) is not applicableunlsee **end** 

### until theprobationis revokedas provided in Article42.13, Section6. SUNWART ------- A 

### peraon convictedof 

### the felony 

### offerme OS driving uhlle Intoxicated, 

### oecondoffense, 

### aad placed on probationin accordance 

### with the terms of Article42.12,Vernon'sCode of Crlmlnal 

### procedureof Texas,1966, automatically loseshis drlver’r 

### license. The defendantconvlcted ot the niiadaeanor 

### offenseof driving 

### while Intoxicatedand placedon probationin accordance~wlth the tezaa of Article 42.13, Vernon~ a Code o? Criminal Procedure of 

### Texas,. 1966, doernot aukomatfcallJ 1088 hi8 driver's llceneeunleeeand untilhle probation1s revoked and 

### the court enter6 Judment on tii::

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### HonorableDon Hall,page 6 

### - (c&26)



### the findingof guilty In accordance with the term of Article42.13. Yimravery truly,
**WAGGONJZR**

**CARR** 

### AttorneyGeneralof Texas

APPROVED 

### OPIHIOHCOMKXTTEE
W. V. Geppert,Chairman GilbertPena DouglasChilton W. 0. Shulte
APPROVEDFOR THE ATlWNEY 

### GNNERAL BY: T. B. Wright

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