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 to probate suspension 

of a driver*s license when an 

individual refuses to take a 

breathalyzer test (RQ-1419) 

Dear Mr. Barnhill: 

you ask whether a justice of the peace has the 

authority to probate the suspension of a driver's license 

when the defendant has refused to take a breathalyzer test. 

Article 67011-5, V.T.C.S., governs the administration 

of breath tests and the suspension of licenses for refusal 

to take the same. Section 2(b) requires that an arresting 

officer advise a person arrested for driving while intoxicated that refusal to submit to the test may 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 a breath test. 

Section 2(f) provides that upon receipt of the report 

the director of the department of public safety shall suspend the person's license for 90 days 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 

same manner as a hearing under section 22(a)" of article 

6687b, V.T.C.S. If upon hearing the court finds that 

probable cause existed that the person was driving while 

intoxicated, that the driver 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 of public safety shall suspend the person's 

license for a period of 90 days. If the court finds in the 

negative on any of the issues, the director shall return the 

license. V.T.C.S. art. 67011-5, § 2(f). 

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Honorable John L. Barnhill - Page 2 (JM-959) 

Section 22(a) vests jurisdiction of the administrative 

hearing in "the mayor of the city, or judge of the police 

court, or a Justice of the Peace in the county where the 

operator or licensee resides." Section 22(a) further 

provides in pertinent part: 

Such hearing shall be had not less than ten 

(10) days after notification to the licensee 

or operator under any of the provisions of 

this section, and upon charges in writing, a 

copy of which 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 the purpose of this section. 

6687b, V.T.C.S. 5 22(a). 

In Texas Deoartment of Public Safetv v. Preston, 727 

S.W.2d 325 (Tex. App. - Houston [lst Dist.] 1987, writ ref'd 

n.r.e.), the court held that the county civil court had 

authority to probate the 90 day suspension of a drivers 

license for refusal to give a breath specimen. The court 

rejected the conclusion reached in Attorney General Opinion 

JM-250 (1984) that section 2(f) of article 67011-5 

incorporates section 22(a) of article 6687b only for 

determining the manner in which breath test refusal cases 

are set. In rejecting 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) or under section 31. 

In holding that the court could grant probation of the 

suspension for refusal to take the test, the court found it 

significant that "had appellee been convicted of the offense 

of driving while intoxicated, the criminal court would 

clearly have had the authority to probate 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 668733 as amended, effective October 

20, 1987, provides: 

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Honorable John L. Barnhill - Page 3 (JM-959) 

(e) The judge or officer holding a hearing under Subsection (a), (b) or (d) of this 

section, or the court trying an appeal under 

Section 31 of this Act, on determining that 

the License shall be suspended or revoked, 

may, when it appears to the satisfaction of 

the court that the ends of justice and the 

best interests of the public as well as the 

defendant will be subserved thereby, 

recommend that the revocation or suspension 

be probated on terms and conditions deemed by 

the officer or judge to be necessary or 

proper. The report to the department of the 

results of the hearing 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 31 of this Act for 

susoension of a driver's license or denial 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., 2d C.S., ch. 41, § 2, at 130. 

Section 31 of article 6687b as amended, effective 

September 1, 1987, provides in pertinent part: 

Any person whose driver's license has been 

suspended or revoked after an administrative 

hearing under Section 22(a) of this Act, any 

person whose license suspension has been probated under Section 22(e) of this Act, and 

any person denied a license or whose driver's 

license has been cancelled by the Department, 

except where such cancellation, suspension, 

or revocation is automatic under the provisions of this Act, shall have the right to 

file a petition within thirty (30) days after 

the date the order of the Department was 

entered for a hearina in the matter in the 

Countv Court at Law in the county wherein 

such person shall reside, or if there be no 

County Court at Law therein, then in the 

countv court of said countv. . . . (Emphasis 

added.) 

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Honorable John L. Barnhill - Page 4 (JM-959) 

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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 31 does 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 the peace has the authority 

to probate the suspension of a drivers license in an administrative proceeding where 

the defendant has been found to have refused 

to take a breathalyzer test. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

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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p. 4872