R-77

Ausrm. TEXAS

PRlCE DANIEL ATTORSEY ‘ESIERAL .March 20, 1947

Ron.--H~r-Oa~rlson, ~JP;,' Direct& .--__ Texas Department of Public Safety Driver's License Division Camp-Mb-ry ~, AustinrTexss Opinion' No. v-91

Re: Authority of the highway ,Departmentto require the surrender of driver's license; suffl.ciency of deDear Sir: mend for such license.

Your opinion requws,tIs as folloWs:

"A licenseehas been finally convict-' wd of aggravated assault tiponthe person by
means of a motor vehicle. Section 24 of Article 6687b, passed by the Forty-seventh Legislature,provides for the automatic suapension of the operator's, commercial.operator's or chauffeur's license upon a final conviction of this.offense.
"Sub-sectiona, 3ectFon 25, of this
same Article authorizes the Court in which conviction is had to require the surrender of all opwretor's,commercial operator's, and chauffeur's license then held by the person so convicted.

"OurQuwstlon No. 1 is: Whether or not the Texas Department of Public Safety has the authority under Section 26 of Article 6687b, to require the licensee to surrender his license certificatewhen the Court of conviction falls to order the surrender of the operator's, commercial operator's or chauffeur's license. Question No. 2. Would notlficatlon made throug‘n formal suspension order to the licenseeby regular U.S. mail constitute service under Sectlon 26 and make the llcensww subject to the penalty provided in paragraph 4 of, Section 32, if he falls to comply?". Hon. Homer Garrison,Jr. - Page 2,V-91

The Legislature, in cnwatlng the Departmentof Public Safety,prescribed that it be generallyresponsible for the enforcement of lawsprotecting the public safety, for the prevention and detection of crime, and that itmalntalnprincipal office and headquarters in the City of Austin,where all of Its records shollbe Sew Title 70 Ch. 5 Vernon's Civil Statutes of ggti, and In partidularAkclw 4413. (1).

The Department'sduties are peculiarlydeslgnwd end conceived in connectionwith the enforcement of
our traffic safety laws ofwhich the driver's llcwnsw law is sn importantpart. The driver's license law, Article 6687b, xontemplates that the Department of PublLc Safety shallbe generally responsible for the administration and enforcement of its provisions. Elaborateprovisions are made for both the qualification of drivers and the issuance of evidence of such~qualificationsin the form of licensesby the Department. The Act obvlously contemplates that the Department effect thewithdrawal of licenses from those not entitled thereto and the Act should be so construed as to accomplish that purpose,whether the licenseswere suspendedat the hearing before the. board or upon an automatic suspwnsionby virtue of a convlctlon of any of the offenses enumeratedunder Section 24 of Article 6687b, V.C.S., which embracesaggravated assault upon the person by
means of e motor vehicle.

Section 24 of Article 6687b, V.C.S., reads:

"AUTOMATICSUSPENSION OF LICENSES. (a) The 1lcwnsw of any person shellbe automatically suspended upon final conviction of .anyof the following.offwnsws: ii+

“5. A convlctlon upon a charge of aggravatedassault upon the person by means of motor vehicle, as provided by lsw. l * *"
The word "automatic"has been defined by Funk and Waqnalls New Standard Dictionary of theEnglish languageas "actingas an automaton, or from forces inherent or placedwithin itself; self moving or self rwgulating under necessary law". The Court in Cleveland Target Companyvs. Empire Target Co., 97 Fed. 44. said: 'Incommon psrlance, 'automatic'means self-acting."Hon. Homer Garrison,Jr. - Page 3,V-91

It therefore follows that on a final conviction of aggravated assault upon the personby means of a motor vehicle the license is Immediately suspended under Subsection 5 of Section 24 by force of the lawwithout further act by anyone.

Section 25 provides:
"(a) Whenever any person is convicted' of any offense forwhich this Act makes automatic the suspwnsfon of the operator's, commercial operatorls,or chauffeur's license of suchperson, the courtln which such conviction ishad shall requlrw the surrender to it of all opwrstors', commercial operators',and chauffeurs' licenses thenheld by the pwrson~so convicted and the clerk of said court shall thereupon forward the same togetherwith
a record of such conviction to theDepart-: mwnt, within ten (10)days from the date of the conviction.
"(b) Every courthaving jurisdiction
over offensescommitted under this Act, or any otherActs of this Ststw regulating the operation ofmotor vehfclws on highways, shall forward to theDepartment a record of the conviction ofany person In said court for a violation of any said laws,and may recommend the suspension of the operator's, commercial opwratar's, or chauffeur% license of the person so convicted,as provided in Section 22 of this Act.
v(c) For the purpose of this Act, the term 'conviction'shallmean a final conviction. Also, for the.purpose of this Act/a forfeiture ofball or collateral deposited to secure a defendant'sappearance in court, which forfeiturehas not been vacated, shall be wqulvalent to a conviction.
"Provided,however, that in case of conviction for any of the offenses enumwrsted 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 shallnot mitigate against the suspension of the operator's,commwrclaloperator'sHon. Homer Garrison, Jr. - Page 4,V-91

or chauffeur's license of the person convicted."
SectIon 25 directs the court to report to the Department all convictions of violations ,ofall laws regulating the operation of motor vehicles on the highways. The purpose of these requirements is to furnish the foundation for appropriate action by the Department. In the Instanceswhere suspension is automatic the lawrecognizes that no furtherhwaring is required for the procedural "dueprocess of law,"because the personaccused In the criminalaction is bound to know, as a matter of law, that an automatic suspension of his driver's license~111 be
a consequence ofhis conviction. The right to the driver's license Is tried as a part of the same suit. The court is directed to Immwdiatwly take up the llcwnsw and the clerk of said court to forward same together with a record of such conviction to the Department'wlthin ten (10)days from the dete of the convlction. It Is incumbent upon the Court to require the surrender of the licenseand the clerk to forward same with the record of conviction to the Department. The court's failure,however, to require the surrwnd.wr of the licensedoes not affect its suspension.

Section 26 of Article 6687b provides:

"TheDepartment, upon suspending or revoking a license shall requlrw thst such license shallbe surrendered to and retained by theDepartment except thst at the end of the period of suspension of such license, the license so surrendered shall be returned to the llcwnsww."

In our opinlon Section 26 deals onlywith suspension or revocationsby the Depsrtmwnt itself and not in cases where the suspending or revoking is brought about automaticallyby a conviction as enumerated In Swction 24.
Section 32 of Article 6687b provides:

"It shallbe unlawful for any person to commit any of the following acts: l * l (4) To fall to refuse to surrender to the Department on demand any operator's,commwrclal operator's or chauffeur's license.!

Hon. Homer Garrison,Jr.,'- Page 5,V-91

which has been suspended, concelled or rwvokwd as providedby lsw. l l *'

We view this sectionas the Department'sauthority to demsnd any operator's,commercial operator's or chauffeur's licensewhich has been suspended,wither by the Departmentafter hearing or by a final conviction upon a charge of aggrsvatwdassault upon the person by
means of a motor vehicle under Subsection 5 of Section 24, suprs.

You are therefore,advised in answer to your first question that the Departmentdoes not have the authority under Section 26 but does have under Section 32 (4) to require the licensee to surrender his license upon a final conviction of aggravated asssult by means of a motor vehiclw,.whwrwthe court of conviction fails to require its surrender.

It is hour opinion that sny customary form of communicationwritten or verbs1which is made by the Department and receivedby the licensee, that Is calculated to cIwarly inaicatea demand Is made under the authority of Section 32 (4) is sufficiwnt. We also think that evidence indicatinga letterhas been so forwarded createsw presumption that Ithas been received by the addressee. It shouldbe pointed out In this connection that many defenses could be interposed to such a demand by mail. !Phe

best procedure, therefore,,onwhich to predicate a prosecution for failure or refusal to SUPrender the license to the Department would be to personally serve the licenseewith a written demand.

SUMMARY

The Department of Public Ssfwty has authority under Sec. 32 (4) of Art. 668i’b V.C.S., (andnot under Section 26 thereofI to require the licensee to surrender his license upon conviction of the offense of aggravated assault upon the person by means of motor vehiclewhere the court fails to require surrender of the license. A letter by the Departmentproperly sddrwsswd, stamped and deposited in theU.S. mall, dlrected to the llcensww,demanding the surrender ofHon. Homer Garrison,Jr. - Page 6, V-91

his suspended license isa sufficient "demand"underparsgraph 4 of 3wction 32 of Article 6687b, V.C.3. if rwcwlvwd by the licensee.

Yours very truly

ATTORNEYGENERAL OF TEXAS

BY Robert A. Hsli

Assistant
RAH/mrj/lh