HonorableMichael garney

County Attorney Ector County Odessa, Texas Opinion No. C-665
Re: Whether a plea of nolo contendere entered in justice or corporationcourt, will be admissible in a later proceeding to revoke a defendant's driver's license on the ground that the defendant is a habitual Dear Mr. Earney: violator.

In your opinion requestyou state:

"My question is: Will pleas of nolo contendereentered in Justiceand Corporation Courts to traffic violations be admissiblein a later proceedingto revoke the driver's license as a habitualviolator under Article 6687b? ”
In the opinionwhich you submittedwith your request you state: "The new Code of Criminal Procedure,

Artic' le 2 335 14 provides for pleas of nolo contender n Justice and CorporationCourt cases. The article reads as follows:

"IA plea of "guilty"or a plea of "nolo contendere"in a misdemeanorcase may be made either by the defendant or his counsel in open court..,;*

'?Phe new Code sets a plea of nolo contendere Section 6, which reads as out the effect of in Article 27.02, follows: "1

. ..6. A plea of nolo contendere. The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not

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2’ be used against the defendantas an admission in any civil suit based upon or growing out of the act-uponwhich the oriminalprosecution is based;

....I “The question Immediatelyarises whether or not the above provisionswould allow successive pleas of nolo contendereto defeat the revocation of a defendant‘sdriver*s license under Article 6687b, Vernon'sAnnotatedCivil Statutes-on -rounds that the driver is a habitualviolator of the traffic laws. Particularattention should be given to the fast that the language of Article 6687b, Vernon'sAnnotated Civil Statutes, speaks ine language of convictions." Although the Texas courts have not passed upon the exact questionwhich you ask, there have been two Texas court decisions in cases which are very similar in nature to this ~~~~be~~p~

One case State v. Ea'Tes, 109 S.W.2d 167 (Tex. 1937). Dealt with the disbarmentof an attorney after a plea of "nolo contendere"in the Federal court. The other case, Goldman-v,State, 277 S.W.2d 217 (Tex. Clv. App. 1954, error ref., nze.),dealt with the suspensionof the license of a medical practitioner after he had been convicted of a felony offense in the Federal court upon a plea of "nolo contenderec.

Although Rule 11 of the Federal Rules of Criminal Procedure, which provides for pleas of nolo contenderein Federal court, has no provision similar to Section 6 of Article 27.02 wherein it is provided that the plea of nolo contenderemay not be used against the Defendantas an admission In any civil suit based upon or growing out of the action upon which the criminalprosecutionIs based, the Federal courts have long construed the plea In this manner. See Bell v. Commission of InternalRevenue, 320 F.2d 953 (8th Cir,, 1963), where it was held that the only distinguishable featurebetween a plea of "nolo contendere"and that of "gn.lltyn is that the plea of "nolo contendere"cannotbe used against the Defendantas an admission in any civil suit for the same act.

In the Estes case the Court said at page 171 of 109 S.W.2d: "The next oontentionmade by the

respondentis that he was not convictedwithin the intent and meaning of article 311 He urges in this connectionthat he entered a ljlea of nolo contenderein the federal court case in which

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he was chargedwith the commissionof a felony, and that such plea, when accepted by the prosecutingattorney,becomes an implied confessionof guilt and is equivalent to a plea of guiltyfor the purpose of that case only and cannot be used against the defendantas an admission of guilt in any civil suit for the same act.

"If it be granted that the plea enteredby the respondentdoes not oreate an estoppeland that he is at liberty to relitigate the fact of his guilt or innocence in another case, it avails nothing in this case. The term 'conviction' referred to in the statute is not restrictedto a conviction procured upon entry of a particular plea by the accused in the case in which the convictionwas had. The issue raised by the relators in the second count of the petition is whether respondenthad been 'convictedof a felony' as alleged. It appears from the recitationsof the judgment in evidence that he was convicted. No contentionis made that the offense for which he was convictedwas not a felony, nor is the issue of guilt or innocence involvedin this proceeding."
In the Goldman case at page 222 of 277 S.W.2d, the Court followed the Testes case and said: 'Appellantfurther contends that a Federal Court judgmentbased upon a plea of #nolo contendereicannot constitutea conviction upon which a suit for revocationof a medical license can be maintained. As previously stated appellantwas convicted as charged in a 12-count indictmentupon his plea of *nolo contendere' and sentenced to pay a fine of $5,000, which the record conclusivelyshows he paid. The punishment for convictionof a single violation of the HarrisonNarcoticAct under the Federal Code is a fine of not to exceed $2,000 or imprisonmentfor not more than five years or both. Appellantwas convictedunder an indictmentcontaining12 counts. His conviction was thereforea felony under both the Federal Code and the Texas law. 18 U.S.C.A.,

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Sec. 1; Rowers v. State, 155 Tex. Cr. R. 401, 235 S.W.2nd 449; Article 47, Tex. Penal Code.

"Appellantcs

contentionhere made that a convictionin the Federal Court upon a plea of ‘nolo contendere'cannot and does not furnish a legal basis .for revocationof his medical license is wholly refutedby an opinion in a similar cape handed down by the Commissionof Appeals and adopted by the Supreme Court in the case of State v. Estes, 130 Tex. 425, 109 S.W. 2d 167, except that Estes was disbarred as a lawyer, The accused there contendedthat his plea of 'nolocontendere"to a Federal Court charge could not supporta judgment of conviction such as would disbar him as a lawyer. The court there held, in effect, that a conviction is not restrictedbecause of any kind of a particularplea of the accused. Since the judgment in evidence showed him convicted, such was sufficientas a basis for disbarment." Article 6687b, Section 22 (b), Subsection4, Vernon's Civil Statutes,provides in part:

"The term Ihabitual violator'as used herein, shall mean any person with four or more convictionsarising out of different transactions in a consecutive period of twelve (12) months, or seven (7) or more convictions arising out of different transactions within a period of twenty-four (24) months, such convictions being for moving violationsof the traffic laws of the State of-Texas or its political subdivisions...." (Emphasisadded.)
It is the opinion of this office that, for purposes of said Article 6687b, Section 22 (b), Subsection4, it is immaterial whether the conviction was obtainedafter a plea of "guilty", "not guilty”, or "nolo contendere" by the Defendant. SUMNARY
A convictionfor a traffic violation upon a plea of nolo contenderemay be used under Article 6687b, Section 22(b), Subsection4, Vernon's Civil Statutes, to show that a person is an habitualviolator of the traffic law of the State of Texas.

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HonorableMichael Earney, page 5 (c-665 )

REO/er
APPROVED:
OPINION COMMITTEE w. 0. Shultz, Chairman Ralph Rash Philllp Crawford Howard M, Fender Sam Kelley Yours very truly,
WAGGONER CARR

APPROVED FOR THE ATTORNEY GENERAL By: T. B, Wright

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