Honorable Oscar B. McInnis      Opinion No. M-1057
Criminal District Attorney
Hidalgo County Courthouse       Re:   Is an operator's license
Edinburg, Texas                       subject to automatic sus-
                                      pension under Article ~6687
                                      (b), Section 24 V.C.S.,
                                      when the holder of the
                                      license is convicted of
                                      D.W.I. subsequent offense,
                                      802 V.P.C., but the imposi-
                                      tion of sentence is suspended
                                      and he is placed on probation
                                      under the provisions of the
                                      adult probation act, Article
Dear Mr. McInnis:                     42.12, V.C.C.P.?
     You have requested an opinion of this office on the fol-
lowing question rephrased:
         Is the operator's license subject to auto-
    matic suspension under Article ~6687(b), Section
    24, V.C~.S.,when the-holderof~the license is
    convicted of D.W.I., subsequent offense, 802
    V.P.C. but the imposition of sentence is suspend-
    ed and he is placed on probation under the pro-
    ,vision~of the adult probation Act, Article 42.12,
    V.C.C.P.?
    Article 6687(b), Section 24, Vernon's Civil Statutes pro-
vides as follows:
         "Section 24(a) The license of any person
    shall be automatically suspended upon final
    conviction of any of the following offenses:"
         “2 Driving a motor vehicle while under
    the influence of intoxicating liquor or narcotic
    drugs."


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        Honorable Oscar McInnis, page 2       (M-1057)


            Article 6687(b), Section 25(c) was amended by the 61st
        Legislature, September 1; 1969, eliminating that portion
        thereof which provided that if the courts suspended the sentence
        such suspended-sentence would.not mitigate against the sus-
        pension of operator's license so that Section 25(c) now reads
        as follows:
                  "(c) For the purpose of this Act,
             the term "conviction" shall meana final
             conviction. Also, forthe purpose of this
             Act, a forfeiture of~bail or collateral
             deposited.to secure a defendant's appear-
             ance in Court, which forfeiture has not
             been vacated, shall be equivalent to a
             conviction."
             In construing the term "final conviction" as used in
        Article 6687(b), Section 24 the courts have held that "final
        conviction" is a judgment of conviction from which a motorist
        has exhausted.his right to appeal.    Hays v. Texas Department
        of.Public Safety,  301 S.W.2d 276 (Tex. Civ. App. 1957);
                                 .
        Allen v. Texas Department of Public Safety, 411 S.W.Zd 644
        (Tex. Civ. App. 19661.   A conviction and grant of probation
        under Article 42.12, is a final judgment which is appealable
        even.though sentence is probated, Gossett v. State, 252, S.W.
        2d 59, 162 Tex. Crim. App. 52 (1953);~Pitts v. State, 442
        S.W.Zd 389, 390 (Tex. Crim. 1969).    The fact that the judg-
        ment may be subject to being,set aside as provided in Section
        7 of the Adult Probation Act, makes it no less a final con-

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Honorable Oscar McInnis, page 3      (M-1057)


viction as any other conviction subject to appeal, habeas
corpus, executive pardon or other.collateral relief.
     In view of the construction placed on "final conviction"
by the state courts in the -      and Allen cases and in an
attempt to harmonize if possible Article 6687(b), Section
24, and Article 42.12, in such a'way as to give effect to
each enactment, and avoid conflicts between them,55 Tex. Jur.
2d "Statutes"'Section 186; itwould    appear.that "final
conviction".as that term is-used therein is a judgment of
conviction from which the person.convicted and probated
under the.terms of the-Adult Probation Act has exhausted
his right.to appeal.
     The Legislature has the.right and power to enact statutes
for the protection of the general public traveling the high-
ways of Texas and to require that the privilege of maintain-
ing an operator's license be~atfendent with some obligations
and responsibilities. Gaytan.v..Cassidy, 317 F.Supp. 46 (W.
D., Tex., 1970);   Gillespie v. Texas Department of Public
Safety, 152 Tex. 459, 259 S.W.2d 177 (1953), Cert.Den. 347
U.S. 933.   In Article 6687(b), Section 24, the automatic
suspension of a driver's license is.solely for the protection
of the public using the highways.    The action is not penal in
nature.   Cooley v,.Texas Department of Public Safety, 348
S.W.Zd 267 (Tex. Civ. App.,.l961); Troutman v. Texas Depart-

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            Honorable Oscar McInnis, page 4             (M-1057)


            ment of Public Safea,       416 S.W.2d 539 (Tex. Civ. App. 1967):
                                                                      1
            Davison     v. State, 313 S.W.2d 883, (Tex. Crim., 1958).
                  When the purpose of a statute is ascertained the signif-
            icance of the words used     may    be restricted or enlarged in
            order to effectuate that~purpose and to give the statute the
            meaning which the law     makers    manifestly intended. Texas and
            N.
            - 0. R. Company v. Railroad~~Commission,145 Tex. 541, 200
            S.W.Zd 626 (1947). Considering the primary object of Article
            6697 (b),    Section 24,.and the consequence of a contrary con-
            struction, it is reasonable.to conclude that the Legislature
            intends that a person twice convicted of the offense of
            driving.while intoxicated, even though probated, is subject
            to the automatic suspension of,his operator's license.       Art.

            6687(b). Sec. 24.
                      The mere omission by the Legislature of the language of
            Section 25(c), paragraph 2, -can by no rule of statutory
            construction be construed to mean that the Legislature intended
            that the conviction and probationunder Article 42.12 not re-
            yuire.an automatic suspension of the operator's license where
            an express legislative ,provisionmandates the suspension.
                      Accordingly, a person convicted of D.W.I. second offense
            where the sentence is probated under the.terms of the Adult
            Probation Act- Article 42.12, V.C.C.P., is subject to having
            his operator's license automatically suspended.

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    Honorable Oscar McInnis, page 5           (M-1057)


                                SUMMARY
                   A person convicted of D.W.I. subsequent
              offense where the sentence is probated under
              the terms of the Adult Probation Act, Article
              42.12, V.C.C.P., is subject to having his
              operator's license automatically suspended.
              Art. 6687(b), Sec. 24, V.C.S.
                                       7
                                    Very truly yours,




    Prepared by Guy C. Fisher
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Lonny Zwiener
    Jack Sparks
    Bill Flanary
    Bob Lattimore
    SAM MCDANIEL                          .
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant




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