AWLSTIN, TEXAS 78711

October 20,1969

Col. Wilson E. Speir, Director Texas Department of Public Safety 5805North Lamar OpinionNo.M-498 Austin, Texas 78151 Re: Whether a court has the power to probate only the automatic suspension of a driver's license upon a conviction for "drivingwhile intoxicated"; and whether there can be a later conviction for "driving while license suspended" if the court lacks thepower to probate the automatic suspension of the driver's license in the earlier conviction, but recitesin the judgment that the license suspension Dear Colonel Speir: is probated.
You-have requested the opinion of this officewith regard to the legality of a judgmentrecently entered in the County Court of Freestone County finding a defendant auiltv of drivinawhile intoxicated. The judgment reads, in pa;t,~

as foilOws:

"THE STATE OF TEXAS VS. HOMER LEE SCOTT : CHARGE: DRIVING WHILE INTOXICATED 1 NO. 9028

DATE: February 28, 1969

cause was called for trial, "Thisday th.is and both parties appeared and announced ready for trial, and the defendant HOMER LEE SCOTT after being duly admonished of the consequences thereofby the Court, plead guilty to the

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charge herein, andwaived a trial by jury and submittedhis cause to the Court. Wherefore it is consideredby the Court, that the defendant is guilty as charged, and his punishment is assessed at a fine of Seventy Five and No/100 ($75.00)Dollars and costs, and three days' imprisonment in the county jail. Defendant released to the custody of TPH Clifford G.Hollie. Suspension of Drivers' License probated for a period of 19months.

"It is therefore considered and adjudged by the Court, that the State of Texas do have and recover of the defendant HOMER LEE SCOTT the said fine of Seventy Five and No/100 ($75.00) Dollars and all costs of this prosecution and that he be imprisoned in the county jail of Freestone County, Texas, for three days, and the defendant being present in Court is placed in the custody of the Sheriffwho will commit him forthwith to the jail of said County~until said period of imprisonmenthas expired, and thereafteruntil said fine and costs are fully paid. It is further ordered by the Court that executionmay issue against the property of said defendant for the amount of said fine'and costs. /a/ T.N. EVANS County Judge, Freestone County, Texas"
You thenmake the followingobservations about the foregoing judgment:
"ThisJudgment raises an interesting question. Does a judgehave thepower to suspend a licensewhich, under Section 24 of Article 6687b, Vernon's Civil Statutes, is 'automaticallysuspended upon final conviction'? As we read this Judgment, it finds the 'defendantguilty of DrivingWhile Intoxicated, fines the defendant $75 and costs and sentences him to jail for three days. In addition to this the judge attempts to probate the suspension of the driver's license for an eighteenmonths' period. The Judgment was entered February 28, 1969, and we have no

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notice of any appeal, sowe are assuming it has become final. We thereforeask your opinion as towhether the judgecan in fact probate the suspension of the driver's license under these circumstances?
"Shouldyour answer to this question be in the negative,we would like an answer to the further question as to whether an individual operating a motor vehicle after such judgmentbecame final would be guilty of the offense of DrivingWhile Driver's Licensewas Suspended?"
The questions you pose can be summarizedas follows:
1. Does a judgehave the power to suspend the execution of the automatic suspension of a driver's licensewhich occurs after a first conviction for "drivingwhile intoxicated",an offense defined by Article 802, Penal Code of Texas?
2. If the judgedoes not have this power, can the defendant be convicted of "drivingwhile license suspended" under the provisions of Article 6687b, Section 24,Vernon's Civil Statutes of Texas,when the judgment of convictiondoes recite that the automatic suspension of the drivers license is "suspended"?
Article 668733,

Section 24 (a),provides in part as follows:

"Sec. 24. (a)The license of any person shall be automaticallysuspended upon final conviction of any of the following offenses:
II

. . . "2* Driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs;
II

. . . "(b) The suspensionabove provided shall in the first instancebe for a period of twelve (12)months. In event any license

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shallbe suspendedunder the provision of this Section for a subsequent time, said subsequent suspension shall be for a period of eighteen (18)months.

This office has held thatwhen a person is convicted for a misdemeanor offense of drivingwhile intoxicated (firstoffense) and is placed on probation in accordancewith Article 42.13,Vernon's Code of Criminal Procedure of Texas, 1965, the judgment of conviction is not final and accordingly the defendant's driver's license is not automatically suspended. Attorney General's OpinionNo. C-626 (1966). Accord: Attorney General's OpinionNos. C-515 (1965)and C-685 (1965). However these opinions apply only when the fine or the sentence, or both, have been probated, which is not the case here.
Where the convicting court attempts to suspend or probate only the automatic suspension of the defendant'sdriver's license,as in the instant case, the decision in Davison v. State, 313 S.W.2d 883 (Tex.Crim. 1958)must be given consideration. Therein, the Court of CriminalAppeals held that the automatic suspension of a driver's licenseupon conviction for driving while intoxicatedwas not a part of thepunishment, but only a civil penalty which was not properly to be consideredby either the judge or jury at the criminal trial.
However, in 1965, the sameyear that themisdemeanor probation lawwas passed, the Legislature amendedArticle 6678bby the passage of Senate Bill 498,Acts 59 Leg., 1955, Regular Session,Chapter 717, page 1663. Therein itwas provided inArticle I, Section 1, Subsection (r),that,
“(r) The suspension or revocation of a license

. . . shall be considered as a penalty and subject to executive clemency as any-other fine or punishment."
The question naturally arises as towhether the languageof Subsection (r)quoted above would also apply inprobation situations so as to permit the automatic suspension of a driver's licenses to be probated upon a conviction for one of the offenses that carries the automatic suspension.

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In answering this question, notice 'shouldfirst be made that Subsection (r)refers only to executive clemency not judicialprobation. The statutoryconstructionmaximum, expresiounius eat exclusioalterius would clearly rule out any speculation that the Legislature intended, in enacting Subsection (r),to include any application to probation. In Subsection (r) the Legislature has clearly stated that thenautomatic suspension is the subjectof executive clemency and so is commutable and pardonable. But by not referring to probationwith reference to the automatic suspension, the Legislature has just as clearly signified its intention that the subsection is not applicable to probation situations. Second, Subsection (r)and themisdemeanor probation law (Article42.13,V.C.C.P;; 1965) were both passed by the same session of the Legislature, the 59th Regular Session. Subsection (r)appears as a part of Chapter 717'of the Session Laws while Article 42.13 forms a part of Chapter 722. Article~42;13, the misdemeanor probation law, provides thatwhere probation is granted, "the' finding of guilt'does.not become final." In the present case;the judgment is "final"with respect to guilt the jail.sentenceand fine imposed. Since the judgment is final/there can be no probation under the express terms of the statute, of the suspension of the defendant'sdriver's license.As there can be no,probationwhere the conviction is final, any attempt to probate the automatic suspension of a driver's license is meaningless.
Moreover, if the Legislature had intended to permit a convictingCourt to probate only the automatic suspension of the driver's license, the languageof the statutewould have been explicit in this regard.
This view - that there can be no probationof. only the driver's license suspension - has been expressed by this office inAttorney General’s Opinion No. C-685 (1966). In that opinion, itwas held that a trial court has no authority to probate or suspend & the automatic suspension of a driver's license where there is a conviction for "drivingwhile intoxicated" and that any such attempted probation or suspension is a nullity.

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Following the course charted by the above cited authorities, it is our opinion that the part of the judgment of convictionby the County Court of Freestone County set out above, which purportedlyprobates the suspension of the defendant'sdriver's license,has no force and effect and is a nullity in the eyes of the law.
We, accordingly, answeryour firstquestionin the negative - a judge, acting judicially in criminal prosecutions for drivingwhile intoxicated,does not have thepower to probate or suspend the automatic suspensionof a driver's licenseupon a conviction for drivingwhile intoxicated.

In this respect, our conclusionwould not be changed by House Bill 363, Chapter 614, page 1824,Acts, 61st Legislature, Regular Session, 1969, amending Section 22 of Article 6687b,Vernon'sCivil Statutes, by adding new subsections (e)and (f)thereto. These provisions apply to the power of a judge acting in administrative proceedings and authorizes the probation of the suspension of a driver's licensein various instance that are not material here,
There remains considerationof your second question. Can the defendant in thepresent case be convicted of driving while his driver's license is suspended? In any criminal prosecution, there exists the possibility that a court or jury could find the defendant guilty. However, certain practical questions arisewhich could result in an unsuccessfulcriminal prosecution.
Given only the judgmentof conviction,reciting that the suspension of.thedefendant's driver's license has been probated, the presentdefendantmight urge, to a charge of "drivingwhile driver's license suspended," the defense ofmistake of fact,adefense which could be held to ariseunder Article 41 of the Penal Code of Texas.
Here, the defendant in the "drivingwhile intoxicated" case might be successfulin proving that he was "laboringunder a mistake (of)fact" if later charged with "drivingwhile licensesuspended". He could urge that the earlier "drivingwhile intoxicated" judgment informedhim and led him to reasonably believe that his licensewas not, in fact, suspended and that

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he had a valid license for the operation of a motor vehicle. While we find no Texas cases in point, there are authorities in other jurisdictions to the effect that reliance on a court judgment is a defense. There is also authority to the contrary. 21Am. Jur. 2d 177, Criminal Law, Sec. 96, and cases cited.
However, your department, is not powerless in the instant situation. You know of the conviction for driving while intoxicatedand have thepower to require this defendant to surrenderhis.license under the authority conferred upon you by Article 668713, Section 32,Vernon's Civil Statutes,which reads in pertinent part:

"Sec. 32. It shall be unlawful1 for any person to commit any of the following acts:
II

. . . "4. To fail or refuse to surrender to the Department on demand any operator's, commercial operator's, or chauffeur's licensewhich has been suspended, cancelled, or revoked as provided by law;

See Attorney General's Opinion No. V-91 (1947)for an interpretation of the foregoing,statutoryprovision.

It is seen that the answer to your second question - can the instantdefendant be convicted of "driving while license suspended - is contingentupon whether the defendant knows that the attemptedprobation of the suspension of his license is a nullity. If he does not know that theprobation provision is void, he could not, in all likelihood,be convicted of "drivingwhile license suspended". If he does know that the probationprovision iswithout the power of the court tomake, then a conviction for "driving while license suspended" could be obtained.

SUMMARY
Our answer to your firstquestion is that a trial judge in a criminalproceedings does

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not have the power to probate or suspend the automatic suspension of a driver's license which results after a conviction for "driving while intoxicated"unless the entire judgment of conviction and sentence is probated, and any attempted probation or the suspension of only the driver's license suspension is a nullity.

Our answer to your second question is that a defendantmay ormay not be convicted of drivingwhile his license is suspended,depending upon the finding of a particular court or jury. However, such defendant, upon demand by the Department of Public Safety, can be required to surrender his licensepursuant to Article 6687b;Section 32,Vernon's Civil Statutes.

eneral of Texas Prepared by Lonny F. Zwiener AssistantAttorney General
APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman George Kelton,Vice-Chairman
Bill Allen John Banks Harold Kennedy James Cowden

NEADE F. GRIFFIN Staff LegalAssistant

HAWTHORNE PHILLIPS ExecutiveAssistant
NOLA WHITE First Assistant

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