AWLSTIN, TEXAS 78711 

October 20, 1969 

Col. Wilson E. Speir, Director 

Texas Department of Public Safety 

5805 North Lamar Opinion No.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 

"driving while intoxicated"; and whether 

there can be a later 

conviction for "driving while license suspended" if the court 

lacks the power 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 office with 

regard to the legality of a judgment recently entered in 

the County Court of Freestone County finding a defendant 

auiltv of drivina while 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 

"This day th.is cause was called for trial, 

and both parties appeared and announced ready 

for trial, and the defendant HOMER LEE SCOTT 

after being duly admonished of the consequences 

thereof by the Court, plead guilty to the 

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COl. Wilson E. Speir, Page 2, (M-498 ) 

charge herein, and waived a trial by jury and 

submitted his cause to the Court. Wherefore 

it is considered by 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 19 months. 

"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 Sheriff who will commit 

him forthwith to the jail of said County~until 

said period of imprisonment has expired, and 

thereafter until said fine and costs are fully 

paid. It is further ordered by the Court that 

execution may 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 then make the following observations about the 

foregoing judgment: 

"This Judgment raises an interesting question. 

Does a judge have the power to suspend a 

license which, under Section 24 of Article 6687b, 

Vernon's Civil Statutes, is 'automatically suspended upon final conviction'? As we read this 

Judgment, it finds the 'defendant guilty of Driving While 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 eighteen months' period. The Judgment 

was entered February 28, 1969, and we have no 

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Col. Wilson E. Speir, Page 3, (M-498 ) 

notice of any appeal, so we are assuming it has 

become final. We therefore ask your opinion as 

to whether the judge can in fact probate the 

suspension of the driver's license under these 

circumstances? 

"Should your 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 judgment became final 

would be guilty of the offense of Driving While 

Driver's License was Suspended?" 

The questions you pose can be summarized as follows: 

1. Does a judge have the power to suspend the 

execution of the automatic suspension of a driver's 

license which occurs after a first conviction for 

"driving while intoxicated", an offense defined by 

Article 802, Penal Code of Texas? 

2. If the judge does not have this power, can 

the defendant be convicted of "driving while license 

suspended" under the provisions of Article 6687b, 

Section 24, Vernon's Civil Statutes of Texas, when 

the judgment of conviction does 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 automatically suspended 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 suspension above provided 

shall in the first instance be for a period 

of twelve (12) months. In event any license 

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Col. Wilson E. Speir, Page 4, (M- 498 ) 

shall be suspended under 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 that when a person is convicted for a misdemeanor offense of driving while 

intoxicated (first offense) and is placed on probation 

in accordance with 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 Opinion No. C-626 (1966). Accord: 

Attorney General's Opinion Nos. 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's driver'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 Criminal Appeals held that the 

automatic suspension of a driver's license upon conviction for driving while intoxicated was not a part 

of the punishment, but only a civil penalty which 

was not properly to be considered by either the judge 

or jury at the criminal trial. 

However, in 1965, the same year that the misdemeanor 

probation law was passed, the Legislature amended Article 6678b by the passage of Senate Bill 498, Acts 59 

Leg., 1955, Regular Session, Chapter 717, page 1663. 

Therein it was provided in Article 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 to whether the 

language of Subsection (r) quoted above would also 

apply in probation 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. 

- 2382 - 
Col. Wilson E. Speir, Page 5, (M-498 ) 

In answering this question, notice 'should first 

be made that Subsection (r) refers only to executive 

clemency not judicial probation. The statutory construction maximum, expresio unius eat exclusio alterius 

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 then automatic 

suspension is the subject of executive clemency and 

so is commutable and pardonable. But by not referring 

to probation with 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 the misdemeanor probation law (Article 42.13, 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 that where 

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.sentence and 

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's driver's 

license. As there can be no,probation where 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 convicting Court to probate only the automatic 

suspension of the driver's license, the language of 

the statute would 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 in Attorney General’s Opinion 

No. C-685 (1966). In that opinion, it was 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 "driving while intoxicated" and that any such attempted probation or suspension is a nullity. 

- 2383 - 
Col. Wilson E. Speir, Page 6, (M- 498 ) 

Following the course charted by the above cited 

authorities, it is our opinion that the part of the 

judgment of conviction by the County Court of Freestone 

County set out above, which purportedly probates the 

suspension of the defendant's driver's license, has 

no force and effect and is a nullity in the eyes of 

the law. 

We, accordingly, answer your first questionin 

the negative - a judge, acting judicially in criminal 

prosecutions for driving while intoxicated, does not 

have the power to probate or suspend the automatic 

suspension of a driver's license upon a conviction 

for driving while intoxicated. 

In this respect, our conclusion would not be changed 

by House Bill 363, Chapter 614, page 1824, Acts, 61st 

Legislature, Regular Session, 1969, amending Section 

22 of Article 6687b, Vernon's Civil 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 license in various instance 

that are not material here, 

There remains consideration of your second question. 

Can the defendant in the present 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 arise which could 

result in an unsuccessful criminal prosecution. 

Given only the judgment of conviction, reciting 

that the suspension of.the defendant's driver's license 

has been probated, the present defendant might urge, 

to a charge of "driving while driver's license suspended," the defense of mistake of fact,a defense 

which could be held to arise under Article 41 of the 

Penal Code of Texas. 

Here, the defendant in the "driving while intoxicated" case might be successful in proving that he was 

"laboring under a mistake (of) fact" if later charged 

with "driving while license suspended". He could urge 

that the earlier "driving while intoxicated" judgment 

informed him and led him to reasonably believe that 

his license was not, in fact, suspended and that 

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Col. Wilson E. Speir, Page 7, (M- 498 ) 

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. 21 Am. 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 intoxicated and have the power to require this 

defendant to surrender his.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 

license which 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, statutory provision. 

It is seen that the answer to your second question - 

can the instant defendant be convicted of "driving 

while license suspended - is contingent upon whether 

the defendant knows that the attempted probation of 

the suspension of his license is a nullity. If he 

does not know that the probation provision is void, 

he could not, in all likelihood, be convicted of 

"driving while license suspended". If he does know 

that the probation provision is without the power 

of the court to make, then a conviction for "driving 

while license suspended" could be obtained. 

SUMMARY 

Our answer to your first question is that 

a trial judge in a criminal proceedings does 

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Col. Wilson E. Speir, Page 8, (M- 498) 

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 defendant may or may not be convicted of driving while 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 license pursuant to Article 

6687b;Section 32, Vernon's Civil Statutes. 

eneral of Texas 

Prepared by Lonny F. Zwiener 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Bill Allen 

John Banks 

Harold Kennedy 

James Cowden 

NEADE F. GRIFFIN 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

NOLA WHITE 

First Assistant 

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