# The Attorney General of Texas July 3, 1978

Honorable Ogden Bass Brazoria County District Attorney Angleton, Texas 77515 Opinion No.Ii- 1201
Re: Whether a magistrate in an administrative driver’s license suspension hearing authorized by 67011-5, V.T.C.S., has the power to probate the suspension of the driver’s license.
Dear Mr. Bass:
You have requested our opinion as to whether a magistrate in administrative hearing under article 67011-5, V.T.C.S., is authorized probate the suspension ofadriver’s license. Section 2ofarticle 67011-Sprovides:
Ifaperson under arrest refuses, upon the request of a law enforcement officer, to submit to a chemical breath test designated by the law enforcement officer as provided in Section 1,none shall be given, but the Texas Department of Public Safety, upon the receipt ofa sworn report ofthe law enforcement officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor and that the person had refused to submit to the breath test upon the request of the law enforcement officer, .shall set the matter for ahearing asprovided in Section 22(a), Chapter 173, Acts of the 47th Legislature, Regular Session, 1941,asamended (Article 66874 Vernon’s Texas Civil Statutes), if, upon such hearing the court finds (1)that probable cause existed that such person was driving or in actual physical control of a motor vehicle on the highway while under an to

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the influence of intoxicating liquor at the time ofthe arrest bythe officer, (2)that the person wasplaced under arrest by the officer at such time and before offering the person an opportunity to be tested under the provisions of this Act, and (3) that such person refused to submit to the test upon request of the officer, the Director of the Texas Department of Public Safety shall suspend the person’s license or permit to drive, or any nonresident operating privilege for the period ordered by the court, but not to exceed one (1)year. If the person is a resident without a license or permit to operate a motor vehicle in this State, the Texas Department of Public Safety shall deny to the person the issuance of a license or permit for a period ordered by the court, but not to exceed one (1) year. Provided, however, that should such person be found %ot guilty” ofthe offense ofdriving while under the influence of intoxicating liquor or if said cause be dismissed, then the Director of the Texas Department of Public Safety shall in no case suspend such person’s driver’s license; or, in the event that proceedings had been instituted resulting in the suspension of such person’s driver’s license, then the Director of the Texas Department of Public Safety shall immediately reinstate such license upon notification ofsuch acquittal or dismissal by the county clerk of the county in which the case waspending. Notification to the Director of the Texas Department of Public Safety shall be made by certified mail. Thus, under the terms of the statute, ahearing must be held whenever an officer has “reasonable grounds” to believe that a person has been driving a vehicle while under the influence of intoxicating liquor, and that person refuses the officer’s request that he submit to abreath test. Ifthe magistrate makes certain findings, the statute requires~the suspension of the person’s license to drive for aperiod of upto one year. Youask whether the magistrate may probate this suspension. The hearing contemplated by article 67011-5 is the kind “provided in Section 22(a).

..article 6687b.

...I’ Section 22(e) ofarticle 6687b provides:

The judge or officer holding a hearing under Subsection (a), (b), or (d)of this section, or the court trying an appeal under Subsection (c) ofthis section, ondetermining that the License shall be suspended or revoked, may, when it appears to the satisfaction of the court that the ends ofjustice and the best interests ofthe public as well as the defendant will be subserved thereby, recommend that the revocation or

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suspension be probated on terms and conditions deemed by the officer orjudge tobenecessary or proper. The report to the department of the results of the hearing must include the terms and conditions of such probation. Whenprobation is recommended by the judge or officer presiding at a hearing, the department shall probate the suspension or revocation. The procedure of section 22(a) is applicable to a hearing based upon failure to submit to abreath test, and section 22(e), which authorizes probation ofthe license suspension, is applicable to hearings under subsection (al. It follows therefore that probation ofthe license suspension isapermissible alternative inany hearing based uponfailure to submit to abreath test. Attorney General Opinion M-496 (19691,which held that probation is not permitted for an automatic license suspension after a conviction for driving while intoxicated unless the entire judgment of conviction and sentence is probated, is not to the contrary. That opinion dealt with automatic suspension based upon a criminal conviction under section 24ofarticle 6687b. Section 22e ofarticle 6687b, on the other hand, applies only to the authority of a judge acting in an administrative capacity. Accordingly, it is our opinion that a magistrate in an administrative hearing under article 67011-5 may probate the suspension of a driver’s license.
SUMMARY

A magistrate in an administrative hearing underarticle 6701 1-5, V.T.C.S., may probate the suspension of a driver’s iicense.

APPROVED:

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C. ROBERT HEATH, Chairman Opinion Committee jsn

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