Honorable Michael garney 

County Attorney 

Ector County 

Odessa, Texas 

Opinion No. C-665 

Re: Whether a plea of 

nolo contendere 

entered in justice or 

corporation court, 

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 request you state: 

"My question is: Will pleas of nolo 

contendere entered in Justice and Corporation 

Courts to traffic violations be admissible in 

a later proceeding to revoke the driver's license as a habitual violator under Article 

6687b? ” 

In the opinion which you submitted with your request 

you state: 

"The new Code of Criminal Procedure, 

Artic' le 2 

335 

14 provides for pleas of nolo 

contender n Justice and Corporation Court 

cases. The article reads as follows: 

"IA plea of "guilty" or a plea of "nolo 

contendere" in a misdemeanor case 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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Honorable Michael Earney, page 2 (C-665 ) 

2’ 

be used against the defendant as an admission 

in any civil suit based upon or growing out 

of the act-upon which the oriminal prosecution is based; . . ..I 

“The question Immediately arises whether 

or not the above provisions would allow successive 

pleas of nolo contendere to defeat the revocation 

of a defendant‘s driver*s license under Article 

6687b, Vernon's Annotated Civil Statutes-on 

-rounds that the driver is a habitual violator 

of the traffic laws. Particular attention should 

be given to the fast that the language of Article 

6687b, Vernon's Annotated Civil Statutes, speaks 

ine language of convictions." 

Although the Texas courts have not passed upon the 

exact question which 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 disbarment of 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 suspension of 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 contendere in Federal 

court, has no provision similar to Section 6 of Article 27.02 

wherein it is provided that the plea of nolo contendere may 

not be used against the Defendant as an admission In any civil 

suit based upon or growing out of the action upon which the 

criminal prosecution Is based, the Federal courts have long 

construed the plea In this manner. See Bell v. Commission 

of Internal Revenue, 320 F.2d 953 (8th Cir,, 1963), where it 

was held that the only distinguishable feature between a plea 

of "nolo contendere" and that of "gn.lltyn is that the plea of 

"nolo contendere" cannot be used against the Defendant as 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 oontention made by the 

respondent is that he was not convicted within 

the intent and meaning of article 311 He urges 

in this connection that he entered a ljlea of 

nolo contendere in the federal court case in which 

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Honorable Michael Earney, page 3 (c-665 ) 

he was charged with the commission of a 

felony, and that such plea, when accepted 

by the prosecuting attorney, becomes an 

implied confession of guilt and is equivalent to a plea of guilty for the purpose 

of that case only and cannot be used against 

the defendant as an admission of guilt in 

any civil suit for the same act. 

"If it be granted that the plea 

entered by the respondent does not oreate an 

estoppel and 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 restricted to a conviction procured upon entry of a particular 

plea by the accused in the case in which the 

conviction was had. The issue raised by the 

relators in the second count of the petition 

is whether respondent had been 'convicted of 

a felony' as alleged. It appears from the 

recitations of the judgment in evidence that 

he was convicted. No contention is made that 

the offense for which he was convicted was 

not a felony, nor is the issue of guilt or 

innocence involved in this proceeding." 

In the Goldman case at page 222 of 277 S.W.2d, the Court 

followed the Testes case and said: 

'Appellant further contends that a 

Federal Court judgment based upon a plea of 

#nolo contenderei cannot constitute a conviction upon which a suit for revocation of 

a medical license can be maintained. As 

previously stated appellant was convicted 

as charged in a 12-count indictment upon his 

plea of *nolo contendere' and sentenced to 

pay a fine of $5,000, which the record conclusively shows he paid. The punishment 

for conviction of a single violation of 

the Harrison Narcotic Act under the Federal 

Code is a fine of not to exceed $2,000 or 

imprisonment for not more than five years 

or both. Appellant was convicted under an 

indictment containing 12 counts. His conviction was therefore a felony under both 

the Federal Code and the Texas law. 18 U.S.C.A., 

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Honorable Michael Earney, page 4 (C-665 ) 

Sec. 1; Rowers v. State, 155 Tex. Cr. R. 

401, 235 S.W.2nd 449; Article 47, Tex. 

Penal Code. 

"Appellantcs contention here made that 

a conviction in the Federal Court upon a plea 

of ‘nolo contendere' cannot and does not furnish a legal basis .for revocation of his medical license is wholly refuted by an opinion in 

a similar cape handed down by the Commission of 

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 contended that his 

plea of 'nolo contendere" to a Federal Court 

charge could not support a judgment of conviction such as would disbar him as a lawyer. 

The court there held, in effect, that a conviction is not restricted because of any kind 

of a particular plea of the accused. Since 

the judgment in evidence showed him convicted, 

such was sufficient as a basis for disbarment." 

Article 6687b, Section 22 (b), Subsection 4, Vernon's 

Civil Statutes, provides in part: 

"The term Ihabitual violator' as used 

herein, shall mean any person with four or 

more convictions arising 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 violations of the traffic laws 

of the State of-Texas or its political subdivisions...." (Emphasis added.) 

It is the opinion of this office that, for purposes of said 

Article 6687b, Section 22 (b), Subsection 4, it is immaterial 

whether the conviction was obtained after a plea of "guilty", 

"not guilty”, or "nolo contendere" by the Defendant. 

SUMNARY 

A conviction for a traffic violation 

upon a plea of nolo contendere may be used under 

Article 6687b, Section 22(b), Subsection 4, 

Vernon's Civil Statutes, to show that a person 

is an habitual violator of the traffic law of 

the State of Texas. 

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. . 

Honorable Michael 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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