,            1




                                           The Attorney            General of Texas
                                                           May 5, 1983
    JIM MATTOX
    Attorney General


                                         Honorable Edward Woolery-Price          Opinion No. JM-31
    Supreme   Court Building
                                         Colorado County Attorney
    P. 0. Box 12546
    Austin. TX. 78711. 2540
                                         910 Milam                              Re:   Jurisdiction of county
    51214752501                          Columbus, Texas   78934                court on appeal of probation
    Telex    9101674-1367                                                       violation under section 22 of
    Telecopier     5121475.0266                                                 article 6687b, V.T.C.S.

    1607 Main St., Suite 1400
                                         Dear Mr. Woolery-Price:
    Dallas.   TX. 75201-4709
    2141742-6944                              You have asked a question concerning section 22 of article 6687b,
                                         V.T.C.S., which is entitled "Authority of Department [of Public
                                         Safety] to suspend or revoke a [driver's] license." Your question is
    4624 Alberta     Ave., Suite   160
    El Paso, TX.     79905.2793          based upon the following facts:
    9151533.3464
                                                      A licensee was found by the justice of the
                                                   peace [hereinafter J.P.] to be an habitual
     -20 Dallas Ave.. suite 202
    Housfon.   TX. 77002-6966
                                                   violator and placed on one year probation, as
    7131650-0666                                   provided in subsection (e) of section 22, article
                                                   6687b. No appeal is perfected by licensee to the
                                                   above.
    806 Broadway.      Suite 312
    L”bbock,  TX.     79401.3479
                                                      Then, the same licensee is subsequently cited
    6061747-5236
                                                   to appear before the same J.P. for violation of a
                                                   term or condition of that probation. At this
    4309 N. Tenth. Suite E                         hearing the J.P. finds that a term or condition of
    McAllen.     TX. 76501-1685                    probation has been violated and enters an order to
    5121682.4547
                                                   that effect.    The Texas Department of Public
                                                   Safety then suspends the license to drive.
    200 Main Plaza. Suite 400
    San Antonio,  TX. 76205.2797                      Based upon the J.P. 's order that the licensee
    5121225.4191                                   has violated his probation -- that licensee then
                                                   files with the county court a petition wherein the
    An Equal Opportunity/                          licensee is appealing from the order of the J.P.
    Affirmative    Action    Employer              that the probation has been violated.          The
                                                   licensee prays for a trial of all the issues,
                                                   namely beginning with the issue of whether
                                                   licensee is a habitual violator.     (Emphasis in
                                                   original).

                                         We note that the case described by these facts is no longer before the
P                                        courts; however, you wish to inquire about the legal issues raised by
                                         these facts. You ask:


                                                                     p. 133
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Honorable Edward Woolery-Price - Page 2        (JM-31)




          As a result of the appeal by the licensee from the
          J.P. order that the licensee has violated
          probation, what does the county court have
          jurisdiction to hear? Is it to decide the issue
          of whether the term or condition of probation was
          violated, or is the county court to hear the
          issue(s) of whether the licensee is:

             (a)         an habitual violator, and if so,

             (b) should the licensee be placed on probation
          or his license suspended?

     The following provisions of section 22 are             relevant in this
inquiry:

             (a) When. . . the Director [of the department]
          believes the licensee to be incapable of safely
          operating a motor vehicle, the Director may notify
          said licensee of such fact and summons him to
          appear for hearing. . . For the purpose of hearing
          such cases, jurisdiction is vested in. . . a
          Justice of the Peace. . . Upon such hearing, the
          issues to be determined are whether the license
          shall be suspended or. . . revoked, and, in the
          event of a suspension, the length of time. . . The
          officer who presides at such hearing shall report
          the finding to the Department which shall have
          authority to suspend the license for the length of
          time reported; provided, however, that in the
          event of such affirmative finding, the licensee
          may appeal to the county court. . . said appeal to
          be tried de nova. . .

             (b) The authority to suspend [a] license. . .
          is granted the Department upon determining after
          proper hearing as hearinbefore set out that the
          licensee:

             .   .   .    *

               (4) Is an habitual violator of the traffic
             law [as hereinafter defined].

             *   * .      .

             (e) The judge or officer holding a hearing
          under Subsection (a). . . , on determining that
          the License shall be suspended or revoked,
          may. . . recommend that the      revocation or
          suspension be probated on terms and conditions



                                          p. 134
Honorable Edward Woolery-Price - Page 3   (~~-31)




          deemed by the officer or judge to be necessary or
          proper. . . When probation is recommended by the
          judge or officer. . . the department shall probate
          the suspension or revocation.

            (f) When the director believes that a licensee
         who has been placed on probation . . . has
         violated a term or condition of the probation, the
         director shall notify the licensee and summons him
         to appear at a hearing as provided in Subsection
         (a) or (d) of this section. . . ~Thi issue at the
         hearing shall be whether a term or condition of
         the probation has been violated. The officer or
         judge. . . shall report his finding to the
         department and if the finding is that a term or
         conditions of the probation is violated, the
         department shall revoke or suspend the license as
         determined in the original hearing.      (Emphasis
         added).

     We begin by noting that you have not asked us to decide whether
it would be too late for the licensee to appeal a justice of the
peace's original findings that he is an habitual violator of the
traffic laws, that his driver's license should be suspended, and that
the suspension should be probated. On the contrary, you have only
asked whether these issues may be raised in a trial de nova to which
an individual is entitled upon appeal of a justice of the peace's
finding that he violated a condition of his probation. We will limit
our discussion to this issue.

     Section 22(e) of article 6687b provides that a justice of the
peace who has determined that a licensee's driver's license should be
suspended may probate that suspension upon terms and conditions which
he deems proper. When probation is recommended, the department is
required to probate the suspension. Under section 22(f). if the
Director of the Department of Public Safety believes that the licensee
has violated a condition of his probation, he may summons the licensee
to a hearing which is to be held under the provisions of section
22(a). Section 22(f) explicitly provides that "the issue at the
hearing shall be whether a term or condition of the probation has been
violated."

     Under section 22(a), the original issues to be decided by a
hearing officer are whether a licensee's license should be revoked or
suspended, and, if suspended, the length of the suspension. The
licensee is entitled to appeal the hearing officer's "findings" on
these issues and receive a trial de nova in the county court. In a
section 22(a) probation revocation hearing which results from the
application of section 22(f), however, the sole issue to be decided by
the hearing officer is whether the licensee violated a condition of
his probation. We believe that the hearing officer's determination on



                                 P. 135
Honorable Edward Woolery-Price - Page 4     (JM-31)




this issue constitutes a "finding" within the meaning of section
22(a), and that the licensee is entitled to appeal this "finding" to
the county court and receive a trial de nova.

      Because the statute expressly provides that the sole issue to be
decided at a probation revocation hearing is whether the licensee
violated a condition of his probation, we believe that it logically
follows that this is the sole issue which may be taken up in a trial
de nova which results from an appeal of the hearing officer's finding
on this issue.      Put another way, the hearing officer's prior
determinations that the licensee is an habitual violator of traffic
laws, that his license should be suspended, and that the suspension
should be probated may not be taken up in a later trial de nova. The
 proceeding which involved these three issues is entirely different
 from the proceeding which involves the issue of whether a condition of
 probation has been violated, and given the express language of the
 statute, we believe that it is clear that these two proceedings may
 not be intermingled. Had the licensee wished to appeal the justice of
 the peace's original findings, he could have done so directly under
 section 22(a) and received a trial de nova on those issues. We do not
 believe that he may raise these issues in an appeal taken in a
 subsequent proceeding.

     We therefore conclude that a hearing officer's determinations
that a licensee is an habitual violator of the traffic laws, that his
license should be suspended, and that the suspension should be
probated may not be examined in a trial de nova which results from an
appeal of the hearing officer's later finding that the licensee
violated a condition of his probation.

                             SUMMARY

             Section 22 of article 6687b, V.T.C.S., does not
          permit a hearing officer's findings that a
          licensee is an habitual violator of the traffic
          laws, that his license should be suspended, and
          that the suspension should be probated to be
          examined in a trial de nova which results from an
          appeal of the hearing officer's later finding that
          the licensee violated a        con ition of his
          probation.

                                          Very truly you


                                   J           A      Eli&?
                                          JIM     MATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General



                                   p. 136
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        Honorable Edward Woolery-Price - Page 5   (JM-31)




        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Jon Bible
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Rick Gilpin
        Rick Meyer
        Jim Moellinger
        Nancy Sutton




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