The Attorney General of Texas 

April 11. 1984 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 78711.2546 

51214752501 

Telex 9101874-1367 

Telecopier 51214750266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742.6944 

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El Paso, TX. 79905-2793 

915l533.3464 

p 01 Texas, Suite 700 

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Lubbock, TX. 79401.3479 

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512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Joe Warner Bell 

Trinity County Attorney 

P. 0. Box 878 

Groveton, Texas 74845 

Opinion No. JM-146 

Re: Whether a person arrested 

prior to January I, 1984, for 

driving while intoxicated may 

be granted a 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 defendants in driving while intoxicated [hereinafter DWII 

misdemeanor actions involving a violation of article 67011-1, V.T.C.S. 

Prior to amendment, article 42.13, section 3d authorized courts to 

"defer further proceedings without entering a" adjudication of guilt" 

in any misdemeanor case. See Attorney General Opinion MW-133 (1980). 

The amendments to which you refer remove misdemeanor DWI 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 

relevant part: 

(a) Except as provided by Subsection (d) of 

this section when in its opinion the best interest 

of society and the defendant will 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 proceedings without 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 

imprisonment prescribed for the offense for which 

the defendant is charged. 

. . . . 

(d) This section does 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 

Honorable Joe Warner Bell - Page 2 (JM-146) 

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 

court maygrant a deferred judgment to a defendant who is charged with 

a misdemeanor prior to January 1, 1984 but whose case comes to trial 

after January 1, 1984. We conclude that 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 entirety of Senate Bill 

No. I that the legislature clearly intended to initiate stronger 

measures to deal with offenses involving intoxicated drivers. 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 law made by this Act 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 this Act only if any element of 

the offense occurs before the effective date. 

(c) An offense committed before the effective 

date of this Act is covered by the law in effect 

when the offense was committed, and the former law 

is continued in effect for this purpose. 

(d) Article 5.03-l. Insurance Code, applies 

only for convictions of offense that occur after 

the effective date of this Act. 

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 that may result from a pre-1984 DWI charge. 

Our conclusion comports with the constitutional prohibition 

concerning the passage of ex post facto laws. Tex. Const. art. I, 

§16. One Texas court has defined an ex post facto law as follows: 

p. 629 
. . 

Honorable Joe Warner Bell - Page 3 (~~-146) 

Any law is an ex post facto law which inflicts a 

greater punishment than the law annexed to the 

crime when committed, or which alters the 

situation of the accused to his disadvantage. 

Ex parte Alegria, 464 S.W.2d 868, 872 (Tex. Crim. App. 1971). 

A defendant who was charged with a misdemeanor DWI under article 

67011-1, V.T.C.S. before January 1, 1984 was elegible for a deferred 

adjudication under article 42.13, section 3d; 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 to his disadvantage. 

SUMMARY 

The amendments to article 42.13, section 3d of 

the Code of Criminal Procedure contained in Senate 

Bill No. 1, Acts of the Sixty-eighth Legislature, 

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 defendants who 

were charged prior to the January 1, 1984 

effective date of the amendments. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 630 
, . 

Honorable Joe Warner Bell - Page 4 (JM-146) 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Susan Garrison 

Ji,m Moellinger 

Nancy Sutton 

-. 

p. 631