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 DWI or 

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 

DWI 2nd 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 DWI pleas 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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Honorable Don Hall, page 3 (c- 626) 

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 maximum punishment 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 maximum punishment 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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Honorable Don Hall, page 4 (c- 626) 

r 

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

that whether a person loses 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 maximum possible 

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 maximum possible 

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: 

“When a 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, section 6, in as follows: 

"(a) If a probationer violates any term 

of hle probation, the court may cause 

hle ureet by rerrant ae ln other caeeeI 

The probationer upon arrest shall be 

brought promptly be?ore the court aauelng 

hle arreet and the, court, upon motion of 

the etrte and after a hearing without a 

jury may continue, modify or revoke the 

probation UJ the evidence warrante. 

"(b) On the date the probation Is revohad, the finding of guilty becomes final 

and the court shall render judgment thereon againet the defenderit. The judgment 

ehall be enforced as in other caeee end 

the tire rerved on probation may not be 

credited or othenlee considered for any 

purpose . n 

Since Article 42.13, maker no reference to the 

suspmeion of l entence In tiedemeanor easer when robatlon 

ha8 been granted, and furthermore, since Section % of sald 

Article preclude8 the court fro8 even eaterlng judgment upon 

a finding of guilty except If end uhen aaId probation is 

revoked ae provided In Section 6 of that Article, It 1s the 

opinion of this office that a person placed on probation 

after being found guilty of the mladeneanor offense of 

driving uhlle intoxicated does not automatically lose his 

driver'8 llcenee elate Article 66&7b, Section 25 (c) is not 

applicable unlsee end until the probation is revoked as 

provided in Article 42.13, Section 6. 

SUNWART ------- 

A peraon convicted of the felony offerme OS 

driving uhlle Intoxicated, oecond offense, 

aad placed on probation in accordance with 

the terms of Article 42.12, Vernon's Code of 

Crlmlnal procedure of Texas, 1966, automatically 

loses his drlver’r license. The defendant convlcted ot the niiadaeanor offense of driving 

while Intoxicated and placed on probation in 

accordance~wlth the tezaa of Article 42.13, 

Vernon~ a Code o? Criminal Procedure of Texas,. 

1966, doer not aukomatfcallJ 1088 hi8 driver's 

llcenee unleee and until hle probation 1s revoked and the court enter6 Judment on tii:: 

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Honorable Don Hall, page 6 - (c&26) 

the finding of guilty In accordance with 

the term of Article 42.13. 

Yimra very truly, 

WAGGONJZR CARR 

Attorney General of Texas 

APPROVED 

OPIHIOH COMKXTTEE 

W. V. Geppert, Chairman 

Gilbert Pena 

Douglas Chilton 

W. 0. Shulte 

APPROVED FOR THE ATlWNEY GNNERAL 

BY: T. B. Wright 

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