JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin. TX. 78711. 2548 

512,475.2501 

Telex 91018761367 

Telecopier 512/475-0266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4508 

214/742-8944 

4024 Alberta Ave.. Suite 160 

El Paso, TX. 799052793 

9151533-3484 

1Wl 1exa.3, ?dte 700 

Houston, TX. 77002-3111 

7131223.5888 

806 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

8081747.5233 

4309 N. Tenth. Suite B 

McAllen, TX. 78501-1685 

5121682~4547 

200 Main Plaza. suite 400 

San Antonio. TX. 78205.2797 

51212254191 

An Equal Opportunity1 

Affirmative Action Employer 

The Attorney General of Texas 

'?l.sy 19. 1986 

Eonotable William C. Wright 

Orange County Attcrney 

Courthouse 

Orange, Texas 71630 

Opinion No. .J&496 

Re: Whether an individual's license 

may be suspended under section 2(f) 

of article 67011-5, V.T.C.S., under 

certain circumstances 

Dear Mr. Wright: 

You ask whether a provision requiring the Texas Department of 

Public Safety to request a hearing within 10 days after the receipt of 

demand for a hearing is mandatory or directory. You also ask whether 

a court has discrlztion as to the length of a suspension of a driver's 

license for failure to give a blood or breath specimen. Your first 

question is based on the following statute: 

when the director [of the Department of Public 

Safety] receives [a report that a person has 

refused to give a breath or blood specimen], the 

director shall suspend the person's license, 

permit. or nonresident operating privilege, or 

shall issue ao order prohibiting the person from 

obtaining a license or permit, for 90 days effective 28 days after the date the persoa receives 

notice 1)~’ certified mall or 31 days after the date 

the director sends notice by certified mail, if 

the pe!rrroa has not accepted delivery of the 

notice. If, not later than the 20th day after the 

date on which the person receives notice by 

certified mall or the 23rd day after the date the 

director sent notice by certified mail, if the 

person has not accepted delivery of the notice, 

the department receives a written demand that a 

hearing ‘be held, the department shall, not later 

than the 10th day after the day of receipt of the 

demand,~request a court to set the hearing for the 

earliest possible date. (Emphasis added). 

V.T.C.S. art. 67OL;L-5, $2(f). 

p. 2257 
Eonorable William C. Wright -. Page 2 (JM-496) 

We musr first point out that a brief DPS submitted in response LO 

your question indicates a mlsperceptlon about the w%ure of an inquiry 

into whether s statute that sets out the duty of a public official is 

mandatory or directory. The questlon of vhether such a provision is 

mandatory or directory arises vhen It is necessary to determine the 

effect of a past fsilurs. to comply vith the provision. The 

determination that a duty imposed on public officials is directory 

doea not mean that publ:tc officials can ignore the duty. “NO 

statutory provisions are intended by the legislature to be 

disregarded.” 2A Suthar1tn.d Statutory Construction $57.01, p.’ 640 

(rev. 3rd ed. 1943). In other words, regardless of whether the 

statute you ask about is rmmdatory or directory, DPS Is not free to 

ignore the requirements of srticle 67011-5. “Winisterial officers sre 

not wponents of law, they are not free to perform or not perform 

clear legal duties as their fancy dictates, and they are not immuue 

from compulsory process.” ‘Glass v. Smith. 238 S.W.2d 243 (Tex. Civ. 

APP . 

- Austin 1951). gi,, 244 S.U.2d 645 (1951). Therefore, DPS 

must comply with the require=nts of article 67011-5 $2(f). 

Article 67011-5, 02(f). states that DPS “shall” request a 

setting “not later than tt,e 10th day after the day of receipt of the 

demand.” You ask whether ,that provision Is mandatory or directory. 

The difference between a mandatory and a directory provision Is that 

failure to comply with a INrectory provision does not Invalidate the 

underlying proceeding unlows the complaining party can show that he 

was harmed by that failure. See State v. Boren, 654 S.W.2d 541 (Tex. 

Clv. App. - WACO 1983, no vrit). In contrast, the effect of a 

mandatory statute Is "to r,equirc at least substantial compliance with 

its provisions in order to uphold the proceedings to vhich the statute 

is applicable.” Toyah Independent School District v. Pecos-Barstuw 

Independent School Districr, 466 S.W.2d 377, 380 (Tex. Clv. App. - San 

Antonio 1971, no writ) citing 3 Sutherland Statutory Construction, 

15815, p. 90 (3d ed. 194X:1. -Although “shall” generally indicates a 

command, the courts have held In a number of cases that the vord 

“shall” In a statutory pcovlsion setting a time limit for the perfonsance of a duty Is djrectory rather than msndarory. 

Lewis V. Jacksonville Bui~ldins & Loan Association. 540 v S.W. d 307 

(Tex. 1976); Chisholm v. ZBevley gills, 287 S.W.Zd 943 (Tcx. 1956); 

Department of Public Safecar v. Dawson, 360 S.W.2d 860 (Tex. Clv. App. 

- Dallas 1962, no writ); litate v. 

- Austin 1939, wit ref’dj: 

Fox, 133 S.W.2d 987 (Tex. Clv. App. 

The key to whether e statutory provision is mandatory or 

directory is legislative :.utent: 

In determining whether the Legislature intended 

the particular provision to be mandatory or merely 

directory, consideration should be given to the 

entire *ct, its nature and object, and the 

p. 2258 
Aonorable William C. Wrlghi: - Page 3 (m-496) 

consequences that would follow from each construction. Provisionr; which are not of the essanca of 

the thing to be done, but which are included for 

the purpose of ~momoting the proper, orderly and 

prompt conduct of business, are not generally 

regarded as mandatory. If the statute directs, 

authorizes or commands an act to be done within a 

certain time, the absence of words restraining the 

doing thereof afterwards or stating the cousequences of fallura to act within the time 

specified, may ‘~a considered as a circumstance 

tending to support a directory construction. 

Chisholm, 281 S.W.2d at 91,5. The courts have noted that regulations 

requiring actions to be pe::formad within a certain time are especially 

likely to be directory If they regulate the conduct of public 

officers. Dawson , 360 Z,.W.2d at 862; Fox, 133 S.W.2d at 990. 

Sutherland explains the remon for this rule: 

For the raasm that individuals or the public 

should not be mc1d.e to suffer for the dereliction 

of public of filxrs, provisions regulating the 

duties of public officers and specifying the time 

for their performance are in that regard generally 

directory. 

Sutherland Statutory Construction 05816, at 102 (3rd ed. 1943). If 

faced with the question 1of the effect of the violation of the 

provision In question in this case, a court would probably hold that 

the provision in question is directory rather than mandatory. See 

Departmant of Public Safety v. Dawson, 360 S.W.2d 860 (Tex. Civ. App. 

- Dallas 1962, no writ) (c,ixty-day period within which statute allows 

DPS to suspend license is mandatory). Even so, if a def endaat could 

show harm, the underlying proceeding would be void. The existence of 

harm is a fact question snl would have to be determined case by case. 

DPS submitted a brief in response to your request and asked 

whether the following procedure does in fact comply with article 

67011-5: 

The Texas Departlnant of Public Safety routinely 

files admlnistrcltlve driver’s license suspension 

cases under article 6687b, section 22 (a), 

V.T.C.S., in four hundred and fifty-one (451) 

courts through0t.t the state. These courts hava, 

by prearrangement, given the department the authority to sat a certain number of cases aach week 

in order to hav,a a systematic and orderly procedure to handle 1:he approximately seventy thousand 

p. 2259 
Eonorable William C. Wright .- Page 4 (J&496) 

(70,000) adminis!:rativa hearing cases which are 

set in these courts each year. This system avoids 

the problem of the department having to make an 

individual request. for a court setting for each 

case. Within forty-eight (48) hours of receipt of 

a person’s writt.en demand for a B/BTg [breath/ 

blood test refusal] hearing, a computer entry ia 

made to lndlcatu that the case is set for an 

administrative h<!a.ring. This means that the case 

will be set as scan as the court provides Its next 

available setting date to the department. As soon 

as the setting tecomes available, the individual 

and his legal rePresentatlve (If any) are notified 

of the tine ard place of the administrative 

hearing. At praacnt, over five thousand (5,000) 

cases are in the ‘holding tank’ awaiting a 

setting/date. T’ne B/BTB cases account for over 

four hundred (40(l) of that total number of cases. 

Apparently in many cases this procedure does not result in a request 

to a court for a hearing wj.thln the time specified in article 67011-5. 

In such cases, DPS may not use this procedure because DPS would not be 

complying with Its statutory duty. 

Your second question :Ls whether a court has discretion as to the 

length of suspension of a license under article 67011-5. The statute 

states that if the court makes the required findings 

than the Direct.or of the Texas Department of 

Public Safety sball suspend the parson’s license 

or permit to dr:Lve, or any nonresident operating 

privilege for a period of 90 days, as ordered by 

the court. 

V.T.C.S. art. 67011-5, 12(:F). 

The legislature may knpose duties on judges that do not allow for 

the exercise of judicial discretion. Attorney General Opinion MW-185 

(1980). The plain language of section 2(f) allows a court no discretion in the length of suspension. A plain and unambiguous statute 

will be enforced according to its wording. Central Education Agency 

v. Independent School Distc:Lct of City of El Paso, 254 S.W.2d 357, 360 

(Tex. 1953). Also, the -statutory predecessor to article 67OlL-5 

provided for suspension “for a period ordered by the court, but not to 

exceed one (1) year.” The legislature’s decision to supersede that 

language with a provision for suspension “for a period of 90 days, as 

ordered by the court” indicates that the legislature Intended to fix 

the length of the suspension in the new statute and not allow judicial 

discretion. The phrase “as ordered by the court” simply refers to the 

court ’ 6 minister%el duty to implement the 90-day suspension. 

p. 2260 
Eonorsble William C. Wright - Page 5 (JM-496) 

Furthermore, section 2(f) of article 67011-5 states that an officer 

must inform a person who refuses to give s blood or braath specimen 

that he faces an automatic. 90-day suspension. Thus, a court has no 

discretion regarding the ltngth of a suspension under article 67011-5. 

SUMMARY 

A public official must comply with a statutory 

duty regardless of whether that duty has been 

found to be "directory" for purposes of 

determining the effect of a past failure to 

CornplY. A court has uo discretion as to the 

length of a suspc~nsion under article 67OlL-5. 

Very truly yours LI-AJG . 

JIM HATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Goners1 

MARY KELLER 

Executive Assistant Attorucy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Commlttec 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2261