# The Attorney General of Texas April 11. 1984 JIM MATTOX Attorney General

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An Equal Opportunity/ Affirmative Action Employer HonorableJoe Warner Bell Trinity CountyAttorney P. 0. Box 878 Groveton,Texas 74845 OpinionNo.JM-146
Re: Whether a person arrested prior to January I, 1984, for driving while intoxicatedmay be granteda deferred judgment after January 1, 1984
Dear Mr. Bell:
You have requested that this office determine the effects of recent amendments to article 42.13, section 3d of the Code of Criminal Procedure on defendantsin drivingwhile intoxicated [hereinafterDWII misdemeanoractions involvinga violation of article 67011-1,V.T.C.S. Prior to amendment, article 42.13, section 3d authorized courts to "defer furtherproceedingswithout entering a" adjudication of guilt" in any misdemeanor case. See Attorney General Opinion MW-133 (1980). The amendments towhich you refer removemisdemeanorDWI actions from the scope of section 3d. Article 42.13, section 3d, as amended by Senate Bill No. 1 of the Sixty-eighth Legislature, provides in relevantpart:

(a) Except as provided by Subsection (d) of this sectionwhen in its opinion thebest interest of society and the defendantwill be served, the court may, after receiving a plea of guilty or a plea of nolo contendere,hearing the evidence,and finding that it substantiates the defendant's guilt, defer further proceedingswithout entering a" adjudication of guilt and place the defendant on probation for a period as the court may prescribe, not to exceed the maximum period of imprisonmentprescribed for the offense for which the defendant is charged.

. . . . (d) This sectiondoes not apply to a defendant charged with a" offense under Subdivision (21, Subsection (a). Section 19.05. Penal Code, or an offense under Article 67011-l. Revised Statutes, as amended.,. f

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Acts 1983, 68th Leg., ch. 303, 516, at 1594, 1595. The above amendments to article 42.13, section 3d took effect on January 1, 1984. See Acts 68th Leg., ch. 303, 929, at 1607. You ask whether a courtmaygrant a deferred judgment to a defendantwho is chargedwith a misdemeanorprior to January 1, 1984but whose case comes to trial after January 1, 1984. We concludethat it can. Statutes should be read as a whole and should be construed to give meaning and purpose to every part. Ex parte Pruitt, 551 S.W.2d 706, 709 (Tex. 1977). It is apparent from the entiretyof SenateBill No. I that the legislature clearly intended to initiate stronger measures to dealwith offenses involving intoxicateddrivers. Section 16 of Senate Bill No. 1, quoted above, limits the court's power to grant deferred adjudications in DWI cases. Section 28 of Senate Bill No. 1 articulates the intended scope of the act:

(b)The changes in lawmade by thisAct for the punishment of an offense under Article 67011-l. Revised Statutes, ss amended, apply only to the punishment for an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effecti.ve

date of thisAct only if any element of the offenseoccursbefore the effectivedate. (c) An offense committed before the effective date of this Act is covered by the law in effect when the offensewas committed,and the former law is continued in effect for thispurpose. (d) Article 5.03-l. Insurance Code, applies only for convictions of offense that occur after the effectivedate of thisAct.
Acts 1983, 68th Leg., ch. 303, 928,at 1607.
It is our opinion that the amendments contained in section 16 of Senate Bill No. 1, which deny to defendants in DWI actions the deferred judgment provisions of article 42.13, section 3d. do not apply to violations that occurred before the effective date of the act. According to section 28, the law at the time the offense was committed controls. The pre-amendment article 42.13, section 3d permitted deferred judgments in misdemeanor DWI actions, and it is that version of article 42.13 that will control in any trial proceeding thatmay result from a pre-1984DWI charge. Our conclusion comports with the constitutional prohibition concerning the passage of ex post facto laws. Tex. Const. art. I, §16. One Texas courthas definedan expost facto law as follows:

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Any law is an ex post facto lawwhich inflicts a greater punishment than the law annexed to the crime when committed, or which alters the situationof the accused tohis disadvantage.
Ex parteAlegria, 464 S.W.2d 868, 872 (Tex.Crim.App. 1971).
A defendantwho was chargedwith a misdemeanorDWI under article 67011-1, V.T.C.S. before January 1, 1984was elegible for a deferred adjudicationunder article 42.13, section3d; i.e. a deferred judgment was an available punishment "annexed to the crime when committed." Under the amendments in section 16 of Senate Bill No. 1, a deferred adjudication is not available to a defendant charged with a misdemeanor DWI. To remove from a defendant who was charged before the passage of Senate Bill No. 1 the possibi.lity of being granted a deferred adjudication would certainly alter the position of the accused tohis disadvantage.
SUMMARY

The amendments to article 42.13, section 3d of the Code of CriminalProcedure contained in Senate Bill No. 1,Acts of the Sixty-eighthLegislature, chapter 303 at 1594, which prohibit courts from granting a deferred adjudication to a defendant charged with a misdemeanor DWI under article 67011-1,V.T.C.S., do not apply to defendantswho were charged prior to the January 1, 1984 effectivedate of the amendments.

JIM MATTOX AttorneyGeneralof Texas TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorneyGeneral

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APPROVED: OPINION COMMITTEE Rick Gilpin,Chairman Jon Bible David Brooks Colin Carl SusanGarrison Ji,m Moellinger Nancy Sutton

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