Honorable Don Hall                        Opinion     NO. c-626
Criminal District  Attorney
Waco, Texas                               Re:   Suspension of driver's
                                            license  of defendants after
                                            being convicted of the mis-
                                            demeanor offense of DWI or
                                            the felony offense of DWI
                                            second offense and being
Dear Mr. Hall                               placed on probation.
          In a recent opinion        request    of this       office   you posed
the following  question:
                "Whether a person pleading guilty to
                 DWI 2nd offense,  under the new Code
                 of Criminal Procedure,    and receiving
                 a probated sentence will automatically
                 lose his driver's  license."
            In addition,      In your opinion       request    you set out-the
following    paragraph:
                "We would in particular   appreciate  this
                 opinion to consider the question in
                 misdemeanor DWI pleas in which, it Is
                 our understanding,   that a plea of guilty
                 resulting  in probation  does not require
                 automatic loss of driving privileges."
         This opinion will, therefore,    not only consider whether
or not a person automatically   loses his driver's     license after
pleading guilty to driving while intoxicated,      second offense,
and $8 placed on probation,   but will also pertain to possible
loss of driving privileges   when a person pleads guilty to
the misdemeanor offense of driving while intoxicated        end Is '
placed on probation.
            Article  6687b,     Section   2&(a),     Vernon's     Civil   Statutes,
provides    as follows:
                 "The license of any person shall be auto-
                  matically  suspended upon final conviction
                  of any of the following  offenses:

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Honorable   Don Hall,              page 2           (C- 626)


                 II
                      .   .    *


                 ”2 .         Driving a motor vehicle while            under
                              the Influence of Intoxicating            liquor
                              or narcotic  drugs;”
           Article   6687b,             Section    25 (c),     second paragraph
states   as follows:
                 “Provided,   however, that in case of      I:,
                  conviction   for any OS the offenses en-
                  umerated in paragraph (a) of Section
                  24 of this Act, and the sentence of the
                  court having been suspended as provided
                  in the Statutes,    such suspended sentence
                  shall not mitigate agalpst the suspen-
                  sion of the operator’s;     commercial
                  operator’s,   or chauffer’s   license  of the
                  person convicted.”
          It aceme clear that the legislature    has evidenced
its Intent that a person finally    convicted of the offense
of driving while intoxicated   shall lose his driving privileges
even though as a result of said conviction    his sentence
is suspended.
           Article    54.02, Vernon’s Code of Criminal Procedure,
1966, expressly     repeals Articles     766 through 781, Vernon’s
Code of Criminal Procedure,        1925, which authorized   sus-
pended sentences In Texas.         Therefore,  Texas no longer has
what was commonly referred        to as a suspended sentence.
However, Article      42.12, Vernon’s Code of Criminal Procedure,
1966, commonly referred to as the Adult Probation and Parole
Law, authorizes,      under certain circumstances,    the suspension
of sentence and placid        on probation of a defendant convicted
of a felony.      Article   &2.12A, Section 1 (b), defines “probation”
as follows:
                  “‘Probation’    shall mean the r&lease of a :
                    convicted   defendant by a court under
                    conditions   imposed by the court for a
                    specified   period during which the im-
                   positlon    of sentence Is suspend~ed.‘!
            Article           42.12B,    Section    3, provides     as follows:
                      “The judges of the courts of the State of
                       Texas having original  jurisdiction of
                       criminal actions,  when it shall appear to


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Honorable   Don Hall,   page 3              (c- 626)


                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,    shall have
                the power, after conviction    or a plea
                of guilty for any crime or offense,
                where the maximum punishment assessed
                against the defendant-does    not exceed
                ten years imprisonment, to suspend the
                imposition   of the sentence, and may
                place the defendant on probation or im-
                pose a fine applicable    to the offense
                committed and also place the defendant
                on probation as hereinafter    provided.
                Any such person placed on probation,
                whether in a trial by jury or before
                the court, shall be under the super-
                vision of such court."
          It is thus seen that although we no longer have In
Texas a suspended sentence law, Article        42.12, which authorizes
the granting of probation undercerta%ncircumstarlces
speaks in terms of the sentence being suspended when a
defendant is placed on probation.        It Is the opinion of this
office,  therefore,   that when a person is convicted of the
felony offense    of driving while intoxicated,      second offense,
and placed on probation in accordance with the terms of
Article  42.12, Article    6687b, Section 25 (c), second para-
graph requires that his dirvier's      license    shall be sus-
pended, and he shall lose his driving privileges          in accor-
dance with the terms of said article.
           This office   Is not unmindful that it can be argued
that Article   42.12, applies to misdemeanor convictions        was
well as felony convictions.        Said Article  makes no distinction
between felonies     and misdemeanors but rather, as seen by
Section 3, simply states that the judges of the courts of
Texas may grant probation under certain conditions         after
conviction   or on a plea of guilty for any crime or offense
where the maximumpunishment assessed against the defendant
does not exceed ten years imprisonment.         Standing alone this
language could be construed as meaning that the legislature
intended for Article     42.12, to apply to misdemeanors as well
as felonies.    However, since the legislature      enacted Article
42.13, Vernon's Code of Criminal Procedure, 1966, designated
as the Misdemeanor Probation Law, it is the opinion of this
office   that the legislature    has evidenced Its intent by the
enactment of said special      statute that the granting of mis-
demeanor probations     is to be governed by Article     42.13,


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Honorable Don Hall, page 4                (c-   626)



rather than Article    42.12.  It Is our opinion,    therefore,
that whether a person loses his drl%+@a        license   after
being placed on probation after conviction       of the mis-
demeanor offense of driving while Intoxicated       depends upon
the construction   of Article  42.13, in conjuctlon    rith
Article  6687b,  rather than upon the reasoniag above set
out with regard to a conviction     for the felony offense of
driving while intoxicated,    second offense.
         Prior to January 1, 1966, there was no sentence
In a mledemeanor case in Texas.    Moorwas there available
after a misdemeanor conviction  a suspended sentence or a
probated sentence.   However, Article 42.02, Vernon’s Code
of Criminal Procedure, 1966, states as follows:
              “A ‘sentence’ is the order of the court
               in a felony or a misdemeanor case made
               In the presence of the defendant, except
               In misdemeanor cases where maximumpossible
               punlahment ia by fine only, and entered of
               record, pronouncing the judgment and order-
               ing the same to be carried into execution
               in the manner prescribed  by law.”
          It Is thus,seen that there is now a sentence In mls-
demeanor cases In Texas, except where the maximumpossible
punishment is by fine only, and If a person convicted of
the misdemeanor offense of driving while intoxicated         were
placed on probation and his sentence suspended In accordanee
with Article   42.12, then the above set out reasoning with
regard to driving while Intoxicated      felony offense0 would
apply.   However, as stated previously,      it is our opinion that
Article  42.13, the Nlsdemeanor Probation Law, governs the
granting of probation In misdemeanor cases.        Therefore,   we
must look to the terms of said Article to determine whether
a person convicted of the misdemeanor offense of driving
while intoxicated    automatically  loses his driver’s    license
upon conviction    and being placed on probation for sald
offense.
          Article   42.13, makes no reference to the suspension
of sentence in connection with placing a defendant on pro-
bation In a misdemeanor case.     Rather, Section 4 (a) of said
Art&le.&ate6      as follows:
               “When a defendant Is grated   probation
                under the terms of this Act, the finding
                of guilt does not become final,   nor may
                the court render judgment thereon, except
                as provided in Section 6 of this Article.”

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    Honorable    Don Ball, page 5                 (C- 626)


                Article 42.13,       section 6, in as follows:
                     "(a) If a probationerviolates any term
                      of hle probation, the court may cause
                      hle ureet by rerrant ae ln other caeeeI
                      The probationer upon arrest shall be
                      brought promptly be?ore the court aauelng
                      hle arreet and the,court, upon motion of
                      the etrte and after a hearing without a
                      jury may continue,modify or revoke the
                      probation UJ the evidence warrante.
                     "(b) On the date the probation Is revoh-
                      ad, the finding  of guilty becomes final
                      and the court shall render judgment there-
                      on againet the defenderit.The judgment
                      ehall be enforced as in other caeee end
                      the tire rerved on probation  may not be
                      credited or othenlee considered for any
                      purpose.n
             Since Article 42.13, maker no reference to the
    suspmeion of lentence In tiedemeanor easer when robatlon
    ha8 been granted, and furthermore,since Section % of sald
    Article preclude8 the court fro8 even eaterlng judgment upon
    a finding of guilty except If end uhen aaId probation is
    revoked ae provided In Section 6 of that Article, It 1s the
    opinion of this office that a person placed on probation
    after being found guilty of the mladeneanor offense of
    driving uhlle intoxicateddoes not automaticallylose his
    driver'8 llcenee elate Article 66&7b, Section 25 (c) is not
    applicable unlsee end until the probation is revoked as
    provided in Article 42.13, Section 6.
                                  SUNWART
                                 -------
                A   peraon convicted of the felony offerme OS
                driving   uhlle Intoxicated,  oecond offense,
                aad placed on probation in accordance     with
                the terms of Article 42.12, Vernon's Code of
                Crlmlnal   procedure of Texas, 1966, automatically
                loses his drlver’r     license. The defendant con-
                vlcted ot the niiadaeanor    offense of driving
                while Intoxicatedand placed on probation in
                accordance~wlth  the tezaa of Article        42.13,
                Vernon~ a Code o? Criminal Procedure         of Texas,.
                1966, doer not aukomatfcallJ1088 hi8 driver's
                llcenee unleee and until hle probation 1s re-
                voked and the court enter6 Judment  on tii::


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Honorable Don Hall, page 6          -(c&26)


             the finding of guilty In accordancewith
             the term of Article 42.13.
                                Yimra very truly,
                                WAGGONJZR
                                        CARR
                                Attorney General of Texas




APPROVED

OPIHIOH COMKXTTEE
W. V. Geppert, Chairman
Gilbert Pena
Douglas Chilton
W. 0. Shulte
APPROVED FOR THE ATlWNEY GNNERAL
BY: T. B. Wright




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