JIM MAlTOX Attorney General

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An Equal Opportunity1 Affirmative Action Employer 

# TheAttorney General ofTexas
'?l.sy19. 1986

Eonotable William C.Wright OrangeCountyAttcrney Courthouse Orange, Texas 71630 Opinion No. .J&496
Re: Whetheranindividual's license maybe suspended under section 2(f) of article 67011-5, V.T.C.S., under certain circumstances
DearMr.Wright:
You ask whether a provision requiring the Texas Department of Public Safety to request ahearing within 10days after the receipt of demandfor ahearing is mandatory or directory. Youalso ask whether a court has discrlztion as to the length of a suspension of adriver's license for failure to give ablood or breath specimen. Your first question is based onthe following statute:

whenthe 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 90days effective 28 days after the date the persoa receives notice 1)~’certified mall or 31days after the date the director sends notice by certified mail, if the pe!rrroa has not accepted delivery of the notice. If, not later thanthe 20th dayafter the date on which the person receives notice by certified mall or the 23rd dayafter the date the director sent notice by certified mail, if the person has not accepted delivery of the notice, the department receives a written demandthat a hearing ‘be held, the department shall, not later than the 10th day after the dayof receipt of the demand,~request acourt to set the hearing for the earliest possible date. (Emphasis added).
V.T.C.S. art. 67OL;L-5, $2(f).

p. 2257Eonorable William C. Wright -.Page2 (JM-496)

We musrfirst point out that abrief DPSsubmitted in response LO your question indicates amlsperceptlon about the w%ure of aninquiry into whether s statute that sets out the duty of apublic 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 rmmdatoryor directory, DPSIs 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.” ‘Glassv. Smith. 238 S.W.2d 243 (Tex. Civ. APP

. - Austin 1951). gi,, 244 S.U.2d 645 (1951). Therefore, DPS must complywith 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 dayof receipt of the demand.” Youask 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 washarmedby that failure. SeeState v. Boren, 654S.W.2d 541 (Tex. Clv. App. - WACO1983, novrit). 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 tovhich the statute is applicable.” Toyah Independent School District v. Pecos-Barstuw Independent School Districr, 466S.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. v

Jacksonville Bui~ldins &Loan Association. 540 S.W. d 307 (Tex. 1976); Chisholm v. ZBevley gills, 287 S.W.Zd 943 (Tcx. 1956); Department of Public Safecarv. Dawson, 360S.W.2d 860 (Tex. Clv. App.

- Dallas 1962, nowrit); litate v.

- Austin 1939, wit ref ’dj: Fox, 133S.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. 2258Aonorable 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 ~momotingthe proper, orderly and prompt conduct of business, are not generally regarded as mandatory. If the statute directs, authorizes or commandsan act to be donewithin 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 adirectory construction. Chisholm, 281 S.W.2d at 91,5. The courts have noted that regulations requiring actions tobe 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 offilxrs, 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, nowrit) (c,ixty-day period within which statute allows DPSto suspend license is mandatory). Even so, if a defendaat could showharm, the underlying proceeding would be void. Theexistence of harmis a fact question snl wouldhave tobe 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 andfifty-one (451) courts through0t.t the state. These courts hava, by prearrangement, given the department the authority to sat acertain numberof cases aachweek in order to hav,aa systematic and orderly procedure to handle 1:heapproximately seventy thousand

p. 2259Eonorable William C.Wright .-Page4 (J&496)

(70,000) adminis!:rativa hearing cases which are set in these courts eachyear. 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 meansthat the case will be set as scan as the court provides Its next available setting date to the department. Assoon as the setting tecomes available, the individual andhis 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’neB/BTB cases account for over four hundred (40(l) of that total numberof cases. Apparently in manycases this procedure does not result in a request to a court for ahearing wj.thln the time specified in article 67011-5. In such cases, DPSmaynot use this procedure because DPSwould not be complying with Its statutory duty. Your second question :Lswhether a court has discretion as to the length of suspension of a license under article 67011-5. The statute states that if the court makesthe 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 mayknpose duties onjudges that donot allow for the exercise of judicial discretion. Attorney General Opinion MW-185 (1980). Theplain language of section 2(f) allows a court nodiscretion 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, 254S.W.2d 357, 360 (Tex. 1953). Also, the -statutory predecessor to article 67OlL-5 provided for suspension “for aperiod ordered by the court, but not to exceed one (1) year.” The legislature’s decision to supersede that language with aprovision for suspension “for aperiod of 90days, as ordered by the court” indicates that the legislature Intended to fix the length of the suspension in the newstatute andnot allow judicial discretion. Thephrase “as ordered by the court” simply refers to the court ’6 minister%el duty to implement the 90-day suspension.

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

Furthermore, section 2(f) of article 67011-5 states that an officer must inform a person whorefuses 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
Apublic official must complywith astatutory 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 asuspc~nsionunder article 67OlL-5.
Verytruly yours 

# LI-AJG

.

JIM HATTOX Attorney General of Texas
JACKHIGHTOWER First Assistant Attorney Goners1

MARYKELLER Executive Assistant Attorucy General
ROBERT

GRAY Special Assistant Attorney General
RICKGILPIN Chairman, Opinion Commlttec Prepared by SarahWoelk Assistant Attorney General

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