Y GENERAL 

Honorable Homer Garrison, Jr. Opinion No. C-685 

Director 

Texas Department of Public Re: Suspension of driver's 

Safety license of defendants 

Austin, Texas after their conviction 

of the misdemeanor offense of DWI and being 

Dear Mr. Garrison: placed on probation. 

In an opinion request of this office you pose two 

questions concerning Article 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 8 87b, Section 

24, Vernon's Civil Statutes. Said Section 24 provides as 

follows: 

"(a) The license of any person shall 

be automatically suspended upon final conviction of any of the following offenses: 

nl. . . . 

"2. Driving a motor vehicle while under 

the influence of intoxicating liquor or 

narcotic drugs. . . ." 

Specifically, the questions you pose are as follows: 

"Would a conviction be considered 'final' under the following circumstances: 

"1. Where the defendant is found guilty 

of first offense DWI, fined and required to 

serve a jail sentence but the suspension of 

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 suspension of the 

license is probated." 

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Honorable Homer Garrison, Jr., page 2 (c-685) 

In Attorney General's Opinion NO. c-626 (1966 , this 

office stated that it was our opinion that a defendan l who 

was convicted of the misdemeanor offense of driving while 

intoxicated and placed on probation in accordance with the 

terms of Article 42.13 does not automatically lose his driver's license, unless and until his probation is revoked, and 

the court enters judgment on the finding of guilty in accordance with the terms of Article 42.13. We reaffirm that 

opinion. When a defendant is placed on probation under the 

terms of the Misdemeanor Probation Law, 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 questions presented by you, you state 

that the court has granted a probation of the suspension of 

the driver's license. It is our opinion that the action of 

a court in either granting or denying probation 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 license may not be suspended, since there is no 

final conviction unless and until the probation is revoked. 

We further note that in the first question presented 

by you, you state that the defendant, after being 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 defendant who has been 

placed on probation to serve a jail sentence. In addition, 

Article 42.13, Section 2(2) states as follows: 

"'Probation' means the release by a court 

under terms and for a period specified by the 

court of a defendant who 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 'accordance with Article 42.13 he mustbe released, from custody by 

the court. 

In reference to your first question you state that 

the defendant was required to serve the jail sentence. If 

the court did not probate the jail sentence, but only probated the suspension of the defendant's driver's license, 

which was a nullity, there was a final conviction in the 

absence of an appeal. However, if the court actually probated the jail sentence and then erroneously required the 

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Honorable Homer Garrison, Jr., page 3 (c-685) 

defendant to serve the jail sentence, then there was not a 

final conviction, until and unless the probation is revoked. 

SUMMARY 

Where a defendant is found guilty of first 

offense DWI and a jail sentence imposed, but 

the jail sentence is probated, there is no final conviction until and unless the probation 

is revoked. If the court does not probate the 

jail sentence, but only probates the suspension 

of the defendant's driver's license, such purported probation was a nullity and there was a 

final conviction in absence of an appeal. Howaver, if the court actually probated the jail 

sentence and then erroneously required the defendant to serve the jail sentence there was 

not a final conviction unless and until the probation 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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