Y GENERAL

Honorable Homer Garrison, Jr. OpinionNo. C-685 Director Texas Department of Public Re: Suspensionof driver's Safety license of defendants Austin, Texas after their conviction of themisdemeanor offense of DWI and being Dear Mr. Garrison: placed on probation.

In an opinion request of this officeyou pose two questions concerningArticle 42.13,Vernon's Code of Criminal Procedure of Texas, commonly referred to as the Misdemeanor Probation Law, as it relates to the sus ension of drivers' licenses aa provided for by Article 6 87b, 8 Section 24, Vernon's Civil Statutes. Said Section 24 provides as follows: "(a) The license of any person shall

be automatically suspendedupon final conviction of any of the following offenses: nl.

. . . "2. Driving a motor vehiclewhile under the influence of intoxicatingliquor or narcotic drugs.

. . ." Specifically, the questionsyou pose are as follows: "Would a convictionbe considered 'final' under the following circumstances: "1. Where the defendant is found guilty of first offense DWI, fined and required to serve a jail sentencebut the suspensionof the driver's license is probated; and "2. Where the defendant is found guilty of first offense DWI, required to pay a fine, but the jail sentence and a suspensionof the license is probated." -3291-Honorable Homer Garrison, Jr., page 2 (c-685)

In Attorney General's OpinionNO. c-626 (1966 , this that a defendan

l who office stated that it was our opinion was convicted of themisdemeanor offense of drivingwhile intoxicatedand placed on probation in accordancewith the terms of Article 42.13 doesnot automaticallylose his driver's license,unless and until his probation is revoked, and the court enters judgment on the finding of guilty in accordancewith the terms of Article 42.13. We reaffirm that opinion. When a defendant is placed on probation under the terms of the Misdemeanor ProbationLaw, there is no "final ;;z;;ction" as that term is used in Section 24 of Article

. Therefore,we answer your second question in the negative.

In both of the questionspresentedby you, you state that the courthas granted a probation of the suspensionof the driver's license. It is our opinion that the action of a court in either granting or denyingprobation of a driver's license is a nullity, since it is our opinion that once a defendant is placed on probation, as a matter of law his driver's licensemay not be suspended, since there is no final convictionunless and until theprobation is revoked.

We furthernote that in the first questionpresented by you, you state that the defendant, afterbeing placed on probation, is required to serve a jail sentence. It will be noted that under the terms of this Article there is no authorization for a court to require a defendantwho has been placed on probation to serve a jail sentence. In addition, Article 42.13, Section 2(2) states as follows:

"'Probation'means the releaseby a court under terms and for a period specifiedby the court of a defendantwho has been found guilty of a misdemeanor;"
We interpret this definition of "probation" to mean that any time a defendant is placed on probation in 'accordancewith Article 42.13 he mustbe released, from custodyby the court.

In reference to your first questionyou state that the defendantwas required to serve the jail sentence. If the court did not probate the jail sentence,but onlyprobated the suspensionof the defendant'sdriver's license, which was a nullity, therewas a final conviction in the absence of an appeal. However, if the court actuallyprobated the jail sentence and then erroneouslyrequired the -3292-Honorable Homer Garrison, Jr.,page 3 (c-685)

defendant to serve the jail sentence, then therewas not a final conviction,until and unless theprobation is revoked. SUMMARY Where a defendant is found guilty of first offense DWI and a jail sentence imposed,but the jail sentence isprobated, there is no final convictionuntil and unless theprobation is revoked. If the court does not probate the jail sentence,but only probates the suspension of the defendant's driver's license, suchpurported probationwas a nullity and therewas a final conviction in absence of an appeal. Howaver, if the court actuallyprobated the jail sentence and then erroneouslyrequired the defendant to serve the jail sentence therewas not a final convictionunless and until theprobation is revoked. Yours very truly, WAGGONER CARR Attorney General of Texas

By:

SLK:pw:br APPROVED: OPIMON COMMITTEE W. V. Geppert, Chairman Douglas Chilton W. 0. Shultz Gilbert J. Pena Lonny F. Zwiener APPROVED FOR THE ATTORNEY GENERAL By: T, B. Wright

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