, 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 

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El Paso, TX. 79905.2793 

9151533.3464 

-20 Dallas Ave.. suite 202 

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6061747-5236 

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McAllen. TX. 76501-1685 

5121682.4547 

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San Antonio, TX. 76205.2797 

5121225.4191 

An Equal Opportunity/ 

Affirmative Action Employer 

P 

Honorable Edward Woolery-Price 

Colorado County Attorney 

910 Milam 

Columbus, Texas 78934 

Opinion No. JM-31 

Re: Jurisdiction of county 

court on appeal of probation 

violation under section 22 of 

article 6687b, V.T.C.S. 

Dear Mr. Woolery-Price: 

You have asked a question concerning section 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. for violation of a 

term or condition of that probation. At this 

hearing the J.P. finds that a term or condition of 

probation has been violated and enters an order to 

that effect. The Texas Department of Public 

Safety then suspends the license to drive. 

Based upon the J.P. 's order that the licensee 

has violated his probation -- that licensee then 

files with the county court a petition wherein 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 described by these facts is no longer before the 

courts; however, you wish to inquire about the legal issues raised by 

these facts. You ask: 

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

. . 

As a result of the appeal by 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 probation was 

violated, or is the county court to hear the 

issue(s) of whether the licensee is: 

(a) an habitual violator, and if so, 

(b) should the licensee be placed on probation 

or his license suspended? 

The following provisions of section 22 are relevant in this 

inquiry: 

(a) When. . . the Director [of the department] 

believes the licensee to be incapable of safely 

operating a motor vehicle, the Director may notify 

said licensee of such fact and summons him to 

appear for hearing. . . For the purpose of hearing 

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 length of time. . . The 

officer who presides at such hearing shall report 

the finding to the Department which shall have 

authority to suspend the license for the length of 

time reported; provided, however, that in the 

event of such affirmative finding, the licensee 

may appeal to the county court. . . said appeal to 

be tried de 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 [as hereinafter defined]. 

* * . . 

(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. 134 
Honorable Edward Woolery-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 department shall probate 

the suspension or revocation. 

(f) When the director believes that a licensee 

who has been placed on probation . . . has 

violated a term or condition of the probation, the 

director shall notify the licensee and summons him 

to appear at a hearing as provided in Subsection 

(a) or (d) of this section. . . ~Thi issue 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 decide whether 

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 should be suspended, and that 

the suspension should be probated. On the contrary, you have only 

asked whether these issues may be raised in a trial de nova to which 

an individual is entitled upon appeal of a justice of the peace's 

finding that he violated a condition of his probation. We will limit 

our discussion to this issue. 

Section 22(e) of article 6687b provides that a justice of the 

peace who has determined that a licensee's driver's license should be 

suspended may probate that suspension upon terms and conditions which 

he deems proper. When probation is recommended, the department is 

required to probate the suspension. Under section 22(f). if the 

Director of the Department of Public Safety believes that the licensee 

has violated a condition of 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 shall be whether a term or condition of the probation has been 

violated." 

Under section 22(a), the original issues to be decided by a 

hearing officer are whether a licensee's license should be 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 

application of section 22(f), however, the sole issue to be decided by 

the hearing officer is whether the licensee violated a condition of 

his probation. We believe that the hearing officer's determination on 

P. 135 
Honorable Edward Woolery-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 trial de nova. 

Because the statute expressly provides 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 issue which may be taken up in a trial 

de nova which 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 

should be probated may not be taken up in a later trial de nova. The 

proceeding which involved these three issues is entirely different 

from the proceeding which involves the issue of whether a condition of 

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 licensee wished to appeal the justice of 

the peace's original findings, he could have done so directly under 

section 22(a) and received a trial de nova on those issues. We do not 

believe that he may raise these issues in an appeal taken in a 

subsequent proceeding. 

We therefore conclude that a hearing officer's determinations 

that a licensee is an habitual violator of the traffic laws, that his 

license should be suspended, and that the suspension should be 

probated may 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 condition of 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 truly you 

A 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

p. 136 
. . 

Honorable Edward Woolery-Price - Page 5 (JM-31) 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Rick Meyer 

Jim Moellinger 

Nancy Sutton 

p. 137