Honorable Oscar B. McInnis

Criminal District Attorney Opinion No. M-1057 Hidalgo County Courthouse Re: Edinburg, Texas Is an operator's license subject to automatic suspension under Article~6687 (b),Section 24V.C.S., when the holder of the license is convicted of D.W.I. subsequent offense, 802V.P.C., but the imposition of sentence is suspended and he is placed on probation under the provisions of the adult probation act,Article Dear Mr. McInnis: 42.12,V.C.C.P.? You have requested an opinion of this office on the following question rephrased:

Is the operator's license subject to automatic suspensionunder Article~6687(b),Section 24,V.C~.S.,

when the-holderof~the license is convicted of D.W.I., subsequent offense, 802 V.P.C. but the impositionof sentence is suspended and he is placed on probation under the pro- ,vision ~ofthe adult probationAct, Article 42.12, V.C.C.P.? Article 6687(b), Section 24,Vernon's Civil Statutesprovides as follows:

"Section 24(a) The license of any person shall be automatically suspendedupon final conviction of any of the following offenses:" “2 Driving amotor vehicle while under the influence of intoxicating liquor or narcotic drugs."

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HonorableOscar McInnis, page 2 (M-1057)

Article 6687(b), Section 25(c)was amendedby the 61st Legislature, September 1; 1969, eliminating that portion thereofwhich provided that if the courts suspended the sentence such suspended-sentencewould.not mitigate against the suspension of operator's license so that Section 25(c)now reads

as follows:

"(c) For the purpose of thisAct, the term "conviction"shallmeana final conviction. Also, forthe purpose of this Act, a forfeitureof~bail or collateral deposited.to securea defendant's appearance in Court, which forfeiturehas not been vacated, shall be equivalent to a conviction." In construing the term "final conviction"as used in Article 6687(b), Section 24 the courts have held that "final conviction" is a judgmentof conviction fromwhich amotorist has exhausted.his right to appeal. Hays v. Texas Department of.Public Safety, 301 S.W.2d 276 (Tex.Civ. App. 1957);

. Allen v. Texas Department of Public Safety, 411 S.W.Zd 644 (Tex.Civ. App. 19661. A conviction and grant of probation under Article 42.12, is a final judgmentwhich is appealable even.though sentence is probated, Gossett v. State, 252, S.W. 2d 59, 162 Tex. Crim. App. 52 (1953);~Pittsv. State, 442 S.W.Zd 389, 390 (Tex.Crim. 1969). The fact that the judgment may be subject to being,set aside as provided in Section 7 of the Adult ProbationAct, makes it no less a final con-
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viction as any other conviction subject to appeal,habeas corpus, executivepardon or other.collateralrelief. In view of the constructionplaced on "final conviction" by **the** state courts in the - and Allen cases and in an attempt to harmonize if possible Article 6687(b), Section 24, andArticle 42.12, in such a'way as to give effect to each enactment, and avoid conflictsbetween them,55 Tex. Jur. 2d "Statutes"'

Section 186; itwould appear.that "final conviction".

as that term is-used therein is a judgment of conviction fromwhich the person.convicted and probated under the.terms of the-Adult ProbationAct has exhausted his right.to appeal. The Legislaturehas the.rightand power to enact statutes for the protection of the general public traveling the highways of Texas and to require that theprivilege of maintaining an operator's license be~atfendentwith some obligations and responsibilities. Gaytan.v..Cassidy, 317 F.Supp. 46 (W. D., Tex., 1970); Gillespie v. Texas Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177 (1953),Cert.Den. 347 U.S. 933. In Article 6687(b), Section 24, the automatic suspensionof a driver's license is.solely for the protection of the public using the highways. The action is not penal in nature. Cooley v,.Texas Department of Public Safety, 348 S.W.Zd 267 (Tex.Civ. App.,.l961);Troutman v. Texas Depart- -5162-. . .

Honorable Oscar McInnis, page 4 (M-1057)

ment of Public Safea, 416 S.W.2d 539 (Tex.Civ. App. 1967): 1 Davison v. State, 313 S.W.2d 883, (Tex.Crim., 1958). When the purpose of a statute is ascertained the significance of thewords used may be restricted or enlarged in order to effectuate that~purposeand to give the statute the meaningwhich the law makers manifestly intended. Texas and N. 0. R. Company v. Railroad~~Commission, 145 Tex. 541, 200 - S.W.Zd 626 (1947). Considering the primary object of Article 6697(b), Section 24,.and the consequenceof a contrary construction, it is reasonable.to conclude that the Legislature intends that a person twice convicted of the offense of driving.while intoxicated,even thoughprobated, is subject to the automatic suspension of,his operator's license. Art. 6687(b). Sec. 24. The mere omission by the Legislature of the languageof Section 25(c),paragraph 2,-canby no rule of statutory construction be construed to mean that the Legislature intended that the conviction and probationunder Article 42.12 not reyuire.an automatic suspensionof the operator's licensewhere

an express legislative,provisionmandates the suspension. Accordingly, a person convicted of D.W.I. second offense where the sentence is probated under the.terms of the Adult ProbationAct- Article 42.12,V.C.C.P., is subject to having his operator's license automatically suspended. -5163-. . . .

Honorable Oscar McInnis, page 5 (M-1057)

SUMMARY A person convicted of D.W.I. subsequent offense where the sentence is probated under the terms of theAdult ProbationAct, Article 42.12,V.C.C.P., is subject to having his operator's license automatically suspended. Art. 6687(b), Sec. 24,V.C.S. 7 Very truly yours,

Prepared by Guy C. Fisher Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Lonny Zwiener Jack Sparks Bill Flanary Bob Lattimore SAM MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant .

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