THE ATTORSET GENERAL OF TEXAS

September 29, 1988

Honorable John L. Barnhill Opinion No. JR-959 County Attorney Crosby County Re: Authority of a justice of Crosbyton, Texas 79322 the peace toprobate suspension of adriver*s license when an individual refuses to take a breathalyzer test (RQ-1419)
DearMr. Barnhill:
you ask whether a justice of the peace has the authority toprobate the suspension of adriver's license when the defendant has refused to take abreathalyzer test. Article 67011-5, V.T.C.S., governs the administration ofbreath tests and the suspension of licenses for refusal to take the same. Section 2(b) requires that an arresting officer advise aperson arrested fordriving while intoxicated that refusal to submit to the testmay result in the driver's license being automatically suspended for 90 days. Section 2(d) requires the arresting officer to immediately make a report to the Department of public Safety if the person refuses to submit to abreath test. Section 2(f)provides that upon receipt of the report the director of the department ofpublic safety shall suspend the person's license for 90days and notify the driver of the suspension. Within a specified time the driver may request an administrative hearing. The hearing shall be set "in the samemanner as ahearing under section 22(a)" of article 6687b, V.T.C.S. If upon hearing the court finds that probable cause existed that theperson was driving while intoxicated, that thedriver was offered an opportunity to give a specimen, and that there was a refusal to give a specimen upon the request of the officer, the director of the department ofpublic safety shall suspend the person's license foraperiod of 90days. Ifthe court finds in the negative onany of the issues, thedirector shall return the license. V.T.C.S. art. 67011-5, §2(f).

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Section 22(a) vests jurisdiction of the administrative hearing in "themayor of the city, or judge of the police court, or a Justice of the Peace inthe county where the operator or licensee resides." Section 22(a) further provides inpertinent part:

Such hearing shall be had not less than ten (10)days after notification to the licensee or operator under any of theprovisions of this section, andupon charges inwriting, a copy ofwhich shall **be** given to said operator or licensee not less than ten (10) days before said hearing, except as otherwise provided by this subsection. . . . It shall be the duty of the court to set, the matter for hearing upon ten (10) days' written notice to the Department. . . . Notice by registered mail to the address shown on the license of the licensee shall constitute service for thepurpose of this section. 6687b,V.T.C.S. 522(a).
InTexas Deoartment of Public Safetv v. Preston, **727** S.W.2d 325 (Tex.App. -Houston [lstDist.] 1987,writ ref'd n.r.e.), the court held that the county civil court had authority to probate the 90day suspension of a drivers license for refusal togive a breath specimen. The court rejected the conclusion reached inAttorney General Opinion JM-250 (1984) that section 2(f) of article 67011-5 incorporates section 22(a) of article 6687b only for determining themanner inwhich breath test refusal cases are set. Inrejecting Attorney General Opinion JM-250, the court stated that the opinion disregarded section **4** of article 67011-5 which incorporates other provisions of article 6687b. The court concluded that section 22(c) of article 6687b governs every appeal of a drivers license suspension, whether under section 22(a) orunder section 31.
Inholding that the court could grant probation of the suspension forrefusal to take the test, the court found it significant that "hadappellee been convicted of the offense ofdriving while intoxicated, the criminal court would clearly have had the authority toprobate the suspension of his license" under article 42.12 of the Code of Criminal Procedure. Preston, **727** S.W.2d 325, 327. Section 22(e) of 668733as amended, effective October 20, 1987,provides: i
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. Honorable John L. Barnhill -Page 3 (JM-959)

(e) The judge orofficer holding a hearingunder Subsection (a), **(b)** or (d)of this section, or the court trying an appeal under Section 31of this Act, ondetermining that the License shall be suspended or revoked, may, when itappears to the satisfaction of the court that the ends of justice and the best interests of the public aswell as the defendant will be subserved thereby, recommend that the revocation **or** suspension beprobated on terms and conditions deemed by the officer or judge to be necessary or proper. The report to thedepartment of the results of thehearing must include the terms and conditions of such probation. When probation is recommended by the judge or officer presiding at a hearing, the department shall probate the suspension or revocation. This subsection does not aoolv to an anow 31of thisAct for susoension ofadriver's license ordenial of oneratina orivileaes under Section 2.ChaDter 434.Acts **of** the 61st Leaislature. Reaular Session. 1969 (Article 67011-5. Verno T xas Civil Statutes) (Emphasis refle% pErtion added by amendment.)
Acts 1987, 70th Leg., 2dC.S., ch. 41, §2,at 130. Section 31 of article 6687b as amended, effective September 1, 1987, provides inpertinent part:

Any person whose driver's license has been suspended or revoked after an administrative hearing under Section 22(a) of thisAct, any person whose license suspension has been probated under Section 22(e) of thisAct, and anyperson denied a license orwhose driver's license has been cancelled by the Department, except where such cancellation, suspension, or revocation is automatic under the provisions of this Act, shallhave the right to file apetition within thirty (30)days after the date the order of the Department was entered for a hearina inthe matter in the Countv Court atLaw inthe county wherein such person shall reside, or ifthere be no County Court at Law therein, then in the countv court of said countv. . . . (Emphasis added.)

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The legislature by the 1987 amendment added the sentence that prohibits the granting of probation under a section 31 appeal to the county court. Acts 1987, 70th Leg., ch. 1127, 5 6,at 3861. Section 31does not apply to the administrative hearing in the justice of the peace court. & Coody, Probation of Driver's License Susoensions for Breath Test Refusals, Voice for the Defense (March 1988), at 6.
SUMMARY

The justice of thepeace has the authority toprobate the suspension of adrivers license inan administrative proceeding where the defendant has been found to have refused to take abreathalyzer test.

JIM MATTOX Attorney General of Texas
MARY KELLER First Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STBAXLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G.Davis Assistant Attorney General

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