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

County Attorney 

Port Rend County Re: Whether the operator's 

Richmond, Texas license of a defendant granted 

probation under the provisions 

of the Misdemeanor Probation 

Law of 1965 for the first 

offense of driving a motor 

vehicle while,intoxicated is 

Dear Mr. Stallings: automatically suspended. 

In your opinion request you ask if a driver's license is 

automatically suspended when a person has been convicted of the 

misdemeanor offense of driving while intoxicated, first offense, 

and has been granted probation under the terms of the Misdemeanor Probation Law of 1965, Acts 1965, 59th Leg:, Ch. 164, 

p. 346. This question presupposes that said Misdemeanor Probation Law of 1965 applies to driving while intoxicated, first 

offense, and that a person convicted of said offense is eligible 

for probation under the terms thereof. 

Section 3(a) of said A&provides in part as follows: 

"A defendant who has been found 

guilty of a misdemeanor wherein the 

maximum permissible punishment is by 

confinement in jail or by a fine in 

excess 0-0 may be granted probation If: 

II . . . " (Emphasis added) 

Adherence to the strict letter of this provision would mean that 

misdemeanor probation, may be granted only where the maximum 

permissible punishment 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 Misdemeanor Probation 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 

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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 cluttered with probation requests in mere trivial matters. 

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 

misdemeanor offenses to probation for felony offenses while no 

probation could be given for more serious misdemeanor offenses. 

The absurdity of such a strict construction is more apparent 

in Sections 3(a)(2) and 3(c), for the strict interpretation of 

these Sections would mean that a person who has previously been 

convicted of a misdemeanor offense, wherein punishment by confinement In jail only is allowed, would not be eligible for 

,future probation while a person who has previously been convicted 

of a misdemeanor offense, 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 intended nor 

anticipated by the Legislature and should not be attributed to 

them. 

In Magnolia Petroleum Co. v. Walker, 83 S.W. 929, our 

Supreme court held: 

II 

. . . 'Where, however, the language 

of the statute is of doubtful meaning, 

or where ah adherence to the strict 

letter would lead to injustice, to abSF%% 

or to contradictory provisions, 

e u y devolves upon the court of ascertaining the true meaning. If the 

intentions of the Legislature cannot be 

discovered, it is the duty of the court 

to give the statute a reasonable construction, consistent with the general rinciples of law.' 59 C.J., P. 957, f3 56% 

Empire Gas & Fuel Co. v. State of Texas, 

supra." (Emphasis added) 

We, ,therefore, hold that the Misdemeanor Probation Law of 

1965 applies to all misdemeanors wherein a permissible punishment upon conviction is: 

fine in excess of $200; (3 f 

1) by confinement in jail; (2) by a 

by confinement in jail plus a fine 

of any amount. 

We are further supported In our conclusion by the recent 

decirion of the Supreme Court of Texas in Sweeny Hospital 

Dirtrict v. Carr, 378 S.W.2d 40 (TexiSup. IgW) : 

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- Ron. R. A. Stallings, page 3 (C-515) 

“The courta of this state have 

on occasion added worcls or phrases to 

statutes when necessary to gtve effect 

to legislative intent,. 

Section k(a) of the Misdemeanor 

clear and unambiguous. It states: 

“When a defendant 

. . . 

Probetion Laud of 1965 is 

is granted probation under the terms of this Act, 

the finding of guilty does not become 

final, nor may the COI 11% render judgB-thereon, except as provided-inSection 6 of this Act.” (Emphasis 

added) . 

Article 6687b, Section 24(a)2, V.C.S., provides for the 

automatic suspension of the license of any person upon final 

conviction of driving a motor vehicle while undtr the mnce 

of intoxicating liquor or narcotic drugs. 

Since the probated Judgment is not a final con?rSction, the 

driver’s license is not automatically suspended. 

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 accordance with this prOVlBiOn, tht dri%fSr’S 

license is automatically suspended at 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’s appearance 

in court, which forfeiture has 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, 

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

and the sentence of the court having 

been suspended as provided in the 

Statutes, such suspended sentence shall 

not mitigate against the suspension of 

the operatorts, commercial operator's, 

or chauffeur's license of the person 

convicted." (Emphasis added) 

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 application to a 

misdemeanor case. 

SUMMARY 

A driver's license is not automatically suspended when a person is convicted of driving 

while intoxicated, first offense, and placed 

on probation under the terms of the Misdemeanor 

Probation Law of 1965. 

Yours very truly, 

WAGGONER CARB 

Attornev General of Texas 

Assistant Attorney 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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