              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   intoxi-
cated 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 sus-
pend 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)                  -I




     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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     ,


,-,


                     (e) The judge or officer holding a hear-
                 ing 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 pro-
                  bated 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 provi-
                  sions 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)                  -.


                                                                       I




     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    li-
        cense 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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