Honorable Michael garney                       Opinion   No.   C-665
County Attorney
Ector County                                   Re: Whether a plea of
Odessa, Texas                                      nolo contendere
                                                   entered in justice or
                                                   corporationcourt,
                                                   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 li-
               cense 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 14 provides for pleas of nolo
               contender335n Justice and CorporationCourt
               cases. The article reads as follows:
                      "IA plea of "guilty"or a plea of "nolo
               contendere" in a misdemeanorcase may be made
               either by the defendant or his counsel in open
               court..,;*
                      '?Phenew Code sets out the effect of
               a plea of nolo contendere in Article 27.02,
               Section 6, which reads as 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 )


               be used against the defendant as an admission
               in any civil suit based upon or growing out
               of the act-upon which the oriminal prose-
               cution is based; ....I
                      “The question Immediatelyarises whether
               or not the above provisions would allow successive
               pleas of nolo contendere to defeat the revocation
               of a defendant‘sdriver*s license under Article
               6687b, Vernon's Annotated Civil Statutes-on
               -rounds     that the driver is a habitual violator
               of the traffic laws. Particularattention 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
               One case State v. Ea'Tes,109 S.W.2d 167 (Tex.
     ~~~~be~~p~ 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.
2’   1954, error ref., nze.),dealt    with the suspension of the
     license of a medical practitionerafter 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 Pro-
     cedure, 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 prosecutionIs 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 distinguishablefeature between a plea
     of "nolo contendere"and that of "gn.lltynis 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 ljleaof
               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 prosecutingattorney, becomes an
       implied confession of guilt and is equiv-
       alent 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 re-
       litigate 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 convic-
       tion procured upon entry of a particular
       plea by the accused in the case in which the
       convictionwas had. The issue raised by the
       relators in the second count of the petition
       is whether respondent had been 'convictedof
       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 Testescase and said:
               'Appellantfurther contends that a
       Federal Court judgment based upon a plea of
       #nolo contenderei cannot constitute a con-
       viction 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 con-
       clusively 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
       imprisonmentfor not more than five years
       or both. Appellant was convicted under an
       indictment containing12 counts. His con-
       viction 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.
                "Appellantcscontention here made that
        a convictionin the Federal Court upon a plea
        of ‘nolo contendere'cannot and does not fur-
        nish a legal basis .forrevocation of his medi-
        cal license is wholly refuted by an opinion in
        a similar cape handed down by the Commissionof
        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 con-
        viction such as would disbar him as a lawyer.
        The court there held, in effect, that a con-
        viction is not restrictedbecause of any kind
        of a particularplea of the accused. Since
        the judgment in evidence showed him convicted,
        such was sufficientas a basis for disbarment."
        Article 6687b, Section 22 (b), Subsection 4, Vernon's
Civil Statutes, provides in part:
                "The term Ihabitualviolator' as used
        herein, shall mean any person with four or
        more convictionsarising out of different trans-
        actions in a consecutiveperiod of twelve (12)
        months, or seven (7) or more convictionsarising
        out of different transactionswithin 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 sub-
        divisions...."(Emphasisadded.)
It is the opinion of this office that, for purposes of said
Article 6687b, Section 22 (b), Subsection 4, it is immaterial
whether the convictionwas obtained after a plea of "guilty",
"not guilty”, or "nolo contendere"by the Defendant.
                              SUMNARY
                A convictionfor 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   )


                                         Yours very truly,
                                         WAGGONER CARR




        REO/er
        APPROVED:
        OPINION COMMITTEE
        w. 0. Shultz, Chairman
        Ralph Rash
        Philllp Crawford
        Howard M, Fender
        Sam Kelley
        APPROVED FOR THE ATTORNEY GENERAL
        By: T. B, Wright




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