, 1



# The Attorney General of Texas
May 5, 1983 JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 78711. 2540 51214752501 Telex 9101674-1367 Telecopier 5121475.0266

1607 Main St., Suite 1400 Dallas. TX. 75201-4709 2141742-6944

4624 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 9151533.3464

-20 Dallas Ave.. suite 202 Housfon. TX. 77002-6966 7131650-0666

806 Broadway. Suite 312 L”bbock, TX. 79401.3479 6061747-5236

4309 N. Tenth. Suite E McAllen. TX. 76501-1685 5121682.4547

200 Main Plaza. Suite 400 San Antonio, TX. 76205.2797 5121225.4191
An EqualOpportunity/ Affirmative Action Employer

P Honorable EdwardWoolery-Price ColoradoCountyAttorney 910Milam Columbus,Texas 78934 OpinionNo. JM-31 Re: Jurisdiction of county court on appeal of probation violation under section 22 of article 6687b,V.T.C.S. DearMr. Woolery-Price:
You have asked a question concerningsection 22 of article 6687b, V.T.C.S., which is entitled "Authority of Department [of Public Safety] to suspend or revoke a [driver's]license." Your question is based upon the following facts:

A licensee was found by the justice of the peace [hereinafter J.P.] to be an habitual violator and placed on one year probation, as provided in subsection (e) of section 22, article 6687b. No appeal is perfected by licensee to the above. Then, the same licensee is subsequently cited to appear before the same J.P. forviolation of a term or condition of that probation. At this hearing the J.P. finds that a term or conditionof probationhas been violated and enters an order to that effect. The Texas Department of Public Safety then suspendsthe license to drive. Based upon the J.P.'s order that the licensee has violated his probation -- that licensee then fileswith the county courta petitionwherein the licensee is appealing from the order of the J.P. that the probation has been violated. The licensee prays for a trial of all the issues, namely beginning with the issue of whether licensee is a habitual violator. (Emphasis in original). We note that the case describedby these facts isno longerbefore the courts;however, you wish to inquireabout the legal issues raisedby these facts. You ask:

p. 133Honorable EdwardWoolery-Price- Page 2 (JM-31) . .

As a result of the appealby the licensee from the J.P. order that the licensee has violated probation, what does the county court have jurisdiction to hear? Is it to decide the issue of whether the term or condition of probationwas violated, or is the county court to hear the issue(s)ofwhether the licensee is: (a) an habitualviolator, and if so, (b) should the licenseebe placed on probation orhis license suspended? The following provisions of section 22 are relevant in this inquiry: (a) When.
. . theDirector [ofthe department]

believes the licensee to be incapable of safely operatinga motor vehicle, theDirectormay notify said licensee of such fact and summons him to appear forhearing.
. .For thepurpose ofhearing such cases, jurisdiction is vested in.
. . a Justice of the Peace. . . Upon such hearing, the issues to be determined are whether the license shall be suspended or. . . revoked, and, in the event of a suspension,the lengthof time.
. .The officerwho presides at such hearing shall report the finding to the Department which shall have authority to suspend the license for the lengthof time reported; provided, however, that in the event of such affirmative finding, the licensee may appeal to the county court. . . said appeal to be triedde nova. . . (b) The authority to suspend [a] license.
. . is granted the Department upon determining after proper hearing as hearinbefore set out that the licensee:

. . . * (4) Is an habitual violator of the traffic law [ashereinafterdefined]. * *

. . (e) The judge or officer holding a hearing under Subsection (a).
. . , on determining that the License shall be suspended or revoked, may. . . recommend that the revocation or suspension be probated on terms and conditions

p. 134Honorable EdwardWoolery-Price- Page 3 (~~-31)

deemed by the officer or judge to be necessary or proper. . . When probation is recommended by the judge or officer.
. . the departmentshallprobate the suspensionor revocation. (f) When the directorbelieves thata licensee who has been placed on probation
. . . has violated a term or conditionof theprobation, the director shallnotify the licenseeand summonshim to appear at a hearing as provided in Subsection (a)or (d) of this section.
. . ~Thiissue at the hearing shall be whether a term or condition of the probation has been violated. The officer or judge.
. . shall report his finding to the department and if the finding is that a term or conditions of the probation is violated, the department shall revoke or suspend the license as determined in the original hearing. (Emphasis added). We begin by noting that you have not asked us to decidewhether it would be too late for the licensee to appeal a justice of the peace's original findings that he is an habitual violator of the traffic laws, that his driver's license shouldbe suspended,and that the suspension should be probated. On the contrary, you have only askedwhether these issuesmay be raised in a trial de nova to which an individual is entitled upon appeal of a justice of the peace's finding thathe violated a conditionof his probation. We will limit our discussion to this issue. Section 22(e) of article 6687b provides that a justice of the peacewho has determined that a licensee'sdriver's license shouldbe suspendedmay probate that suspensionupon terms and conditionswhich he deems proper. When probation is recommended, the department is required to probate the suspension. Under section 22(f). if the Director of theDepartmentof Public Safetybelieves that the licensee hasviolated a conditionof his probation,he may summons the licensee to a hearing which is to be held under the provisions of section 22(a). Section 22(f) explicitly provides that "the issue at the hearing shallbe whether a term or conditionof theprobationhas been violated." Under section 22(a), the original issues to be decided by a hearing officer are whether a licensee's license shouldbe revoked or suspended, and, if suspended, the length of the suspension. The licensee is entitled to appeal the hearing officer's "findings" on these issues and receive a trial de nova in the county court. In a section 22(a) probation revocation hearing which results from the applicationof section 22(f),however, the sole issue tobe decidedby the hearing officer is whether the licensee violated a condition of his probation. We believe that thehearing officer'sdeterminationon

P. 135Honorable EdwardWoolery-Price- Page 4 (JM-31)

this issue constitutes a "finding" within the meaning of section 22(a), and that the licensee is entitled to appeal this "finding" to the county court and receive a trialde nova. Because the statute expresslyprovides that the sole issue to be decided at a probation revocation hearing is whether the licensee violated a condition of his probation, we believe that it logically follows that this is the sole issuewhich may be taken up in a trial de novawhich results from an appeal of the hearing officer's finding on this issue. Put another way, the hearing officer's prior determinations that the licensee is an habitual violator of traffic laws, that his license should be suspended, and that the suspension shouldbe probatedmay not be takenup in a later trial de nova. The proceeding which involved these three issues is entirely different from theproceedingwhich involves the issue ofwhether a conditionof probation has been violated, and given the express language of the statute,we believe that it is clear that these two proceedings may not be intermingled. Had the licenseewished to appeal the justiceof the peace's original findings, he could have done so directly under section 22(a)and receiveda trialde nova on those issues. We do not believe that he may raise these issues in an appeal taken in a subsequentproceeding. We therefore conclude that a hearing officer's determinations that a licensee is an habitualviolator of the traffic laws, that his license should be suspended, and that the suspension should be probatedmay not be examined in a trial de nova which results from an appeal of the hearing officer's later finding that the licensee violated a conditionof his probation. SUMMARY Section 22 of article 6687b,V.T.C.S.,does not permit a hearing officer's findings that a licensee is an habitual violator of the traffic laws, that his license should be suspended, and that the suspension should be probated to be examined in a trial de nova which results from an appeal of the hearing officer's later finding that the licensee violated a con ition of his probation.

J Eli&? Very trulyyou
A JIM MATTOX AttorneyGeneral of Texas TOM GREEN FirstAssistantAttorneyGeneral

p. 136. . HonorableEdwardWoolery-Price - Page 5 (JM-31)

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE SusanL. Garrison, Chairman Jon Bible Rick Gilpin RickMeyer JimMoellinger Nancy Sutton

p. 137