Honorable R. A. Stalllngs Opinion No. C-515

County Attorney Port Rend County Re: Whether the operator's Richmond,Texas license of a defendantgranted probationunder the provisions of the MisdemeanorProbation Law of 1965 for the first offense of driving a motor vehicle while,intoxicated is Dear Mr. Stallings: automaticallysuspended. In your opinion requestyou ask if a driver's license is automaticallysuspendedwhen a person has been convicted of the misdemeanor offense of driving while intoxicated,first offense, and has been granted probationunder the terms of the Misdemeanor Probation Law of 1965, Acts 1965, 59th Leg:, Ch. 164, p. 346. This questionpresupposes that said MisdemeanorProbation Law of 1965 applies to driving while intoxicated,first offense, and that a person convicted of said offense is eligible for probationunder the terms thereof. Section 3(a) of said A&provides in part as follows:

"A defendantwho has been found guilty of a misdemeanorwherein the maximum permissiblepunishment is by confinement in jail or by a fine in excess 0-0 may be grantedprobation If: II

. . ." (Emphasisadded) Adherence to the strict letter of this provision would mean that misdemeanorprobation, may be granted only where the maximum permissiblepunishment is (I) by confinement in jail or (2) by a fine in excess of $200, and that when both confinement in jail and a fine are permitted or required, the Act would not apply. The purpose of the MisdemeanorProbation Law of 1965 was to extend the benefits of probation to those persons convicted of certain misdemeanor offenses. Heretofore,the benefits of probation have been available only to those persons convicted of felony offenses. Section 3(a) of said Act was put in as a -2423-c

Hon. R. A. Stallings,page 2 (C-515)

bottom limit for the granting of probation so that probation could only be granted to those persons convicted of misdemeanor. o?fenses of a more serious nature and to prevent our courts from being clutteredwith probation requests in mere trivialmatters. If a strict interpretation of this Act is made, however, then we will arrive at an absurd and unjust result. First, Section 3(a) would allow a hiatus from probation for lesser misdemeanoroffenses to probation for felony offenseswhile no probation could be given for more seriousmisdemeanoroffenses. The absurdity of such a strict constructionis more apparent in Sections 3(a)(2) and 3(c), for the strict interpretation of these Sectionswould mean that a person who has previouslybeen convicted of a misdemeanoroffense,wherein punishmentby confinement In jail only is allowed,would not be eligible for ,future probationwhile a person who has previouslybeen convicted of a misdemeanoroffense,wherein confinement in jail and a fine of less than $200 is permissible, would be eligible fofprobated sentence. Such a result would be one neither intendednor anticipatedby the Legislatureand should not be attributedto them. In Magnolia PetroleumCo. v. Walker, 83 S.W. 929, our Supreme court held:

II

. . . 'Where,

however, the language of the statute is of doubtfulmeaning, or where ah adherence to the strict letter would lead to injustice,to abSF%% or to contradictory provisions, e u y devolvesupon the court of ascertainingthe true meaning. If the intentionsof the Legislaturecannot be discovered,it is the duty of the court to give the statute a reasonableconstruction, consistentwith the general rinciples of law.' 59 C.J., P. 957, f356% Empire Gas & Fuel Co. v. State of Texas, supra." (Emphasisadded) We, ,therefore,

hold that the MisdemeanorProbationLaw of 1965 applies to all misdemeanorswherein a permissible punishment upon conviction is: fine in excess of $200; (3 f 1) by confinementin jail; (2) by a by confinementin jail plus a fine of any amount. We are further supported In our conclusionby the recent decirion of the SupremeCourt of Texas in Sweeny Hospital Dirtrict v. Carr, 378 S.W.2d 40 (TexiSup.IgW) : -2424-- Ron. R. A. Stallings, page 3 (C-515)

“The courta of this state have on occasion added worcls or phrases to statuteswhen necessary to gtve effect to legislativeintent,. Section k(a) of the Misdemeanor clear and unambiguous. It states: “When a defendant . . .

ProbetionLaud

of 1965 is

is granted proof this Act, bation under the terms the finding of guilty does not become 11% render judgfinal, nor may the COI B-thereon, except as provided-inSection 6 of this Act.” (Emphasis added)

. Article 6687b, Section 24(a)2,V.C.S., provides for the automatic suspensionof the license of any person upon final conviction of driving a motor vehicle while undtr the mnce of intoxicatingliquor or narcotic drugs. Since the probated Judgment is not a final con?rSction, the driver’s license is not automaticallysuspended. Section 6(b) provides:

“On the date the probation Is revoked, the finding of guilty becomes final and the court shall render judgment thereon against the dtfendant....” In the event that probation is revoked and the judgment becomes final in accordancewith this prOVlBiOn, tht dri%fSr’S license is automaticallysuspendedat such ,time. We art not unmindful of tht provision of Article 668?b, Soetlon 25(c), V.C.S., which reads as follows: “For the purpose of this Act, the term ‘conviction’

shall meana finaT conviction. Also, for the purpose of Fhis Act, a forfeltur%of bail or collateral deposited to secure a defendant’sappearance in court, which forfeiturehas not been vacated, shall be equivalent to a conviction. “Provided,

however, that in case of conviction for any of the offenses enumerated in paragraph (a) of Section 24 of this Act,

-24253Hon. R. A. Stallings,page 4 (c-515)

and the sentence of the court having been suspendedas provided in the Statutes, such suspended sentence shall not mitigate against the suspensionof the operatorts,commercialoperator's, or chauffeur'slicense of the person convicted." (Emphasisadded) It is well settled that there is no sentence in a misdemeanor case. Since this proviso applies only where the sentence of the court is suspended,it has no applicationto a misdemeanorcase. SUMMARY

A driver's license is not automaticallysuspended when a person is convicted of driving while intoxicated,first offense, and placed on probationunder the terms of the Misdemeanor ProbationLaw of 1965. Yours very truly, WAGGONER CARB Attornev General of Texas

AssistantAttorney General REO: sss APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman W. 0. Schultz John Banks Robert W. Norris John Reeves APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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