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 of a driver’s license. 

Section 2 of article 67011-S provides: 

If a person 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 

of a sworn report of the 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 a hearing as provided 

in Section 22(a), Chapter 173, Acts of the 47th 

Legislature, Regular Session, 1941, as amended (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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Honorable Ogden Bass - Page 2 (H-1201) 

the influence of intoxicating liquor at the time of the arrest 

by the officer, (2) that the person was placed 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” of the offense of driving 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 of such 

acquittal or dismissal by the county clerk of the county in 

which the case was pending. Notification to the Director of 

the Texas Department of Public Safety shall be made by 

certified mail. 

Thus, under the terms of the statute, a hearing 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 a breath test. If the magistrate makes certain findings, 

the statute requires~the suspension of the person’s license to drive for a period of 

up to one year. You ask 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) of article 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) of this section, 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 

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Honorable C&den Bass - Page 3 (H-1201) 

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. 

The procedure of section 22(a) is applicable to a hearing based upon failure to 

submit to a breath test, and section 22(e), which authorizes probation of the license 

suspension, is applicable to hearings under subsection (al. It follows therefore that 

probation of the license suspension is a permissible alternative in any hearing based 

upon failure to submit to a breath 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 24 of article 6687b. Section 22e of article 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 under article 6701 

1-5, V.T.C.S., may probate the suspension of a driver’s 

iicense. 

APPROVED: 

/ 

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Honorable Ogden Bass - Page 4 (H-1201) 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jsn 

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