                   AWLSTIN,   TEXAS     78711


                          October 20, 1969

Col. Wilson E. Speir, Director
Texas Department of Public Safety
5805 North Lamar                 Opinion No.M-498
Austin, Texas 78151
                                 Re: Whether a court has
                                      the power to probate
                                      only the automatic
                                      suspension of a
                                      driver's license upon
                                      a conviction for
                                      "driving while intoxi-
                                      cated"; and whether
                                      there can be a later
                                      conviction for "driv-
                                      ing while license sus-
                                      pended" if the court
                                      lacks the power to
                                      probate the automatic
                                      suspension of the
                                      driver's license in
                                      the earlier conviction,
                                      but recitesin the
                                      judgment that the
                                      license suspension
Dear Colonel Speir:                   is probated.
      You-have requested the opinion of this office with
regard to the legality of a judgment recently entered in
the County Court of Freestone County finding a defendant
auiltv of drivina while intoxicated. The judgment reads,
in pa;t,~as foilOws:
     "THE STATE OF TEXAS              CHARGE:    DRIVING WHILE
     VS.                 :                       INTOXICATED
     HOMER LEE SCOTT     1    NO.     9028
                                      DATE:     February 28, 1969
          "This day th.iscause was called for trial,
     and both parties appeared and announced ready
     for trial, and the defendant HOMER LEE SCOTT
     after being duly admonished of the consequences
     thereof by the Court, plead guilty to the

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COl. Wilson   E.   Speir, Page 2, (M-498      )


    charge herein, and waived a trial by jury and
    submitted his cause to the Court. Wherefore
    it is considered by the Court, that the
    defendant is guilty as charged, and his punish-
    ment is assessed at a fine of Seventy Five and
    No/100 ($75.00) Dollars and costs, and three
    days' imprisonment in the county jail. De-
    fendant released to the custody of TPH Clifford
    G.Hollie. Suspension of Drivers' License pro-
    bated for a period of 19 months.
          "It is therefore considered and adjudged
     by the Court, that the State of Texas do have
     and recover of the defendant HOMER LEE SCOTT
     the said fine of Seventy Five and No/100 ($75.00)
     Dollars and all costs of this prosecution and
     that he be imprisoned in the county jail of
     Freestone County, Texas, for three days, and
     the defendant being present in Court is placed
     in the custody of the Sheriff who will commit
     him forthwith to the jail of said County~until
     said period of imprisonment has expired, and
     thereafter until said fine and costs are fully
     paid. It is further ordered by the Court that
     execution may issue against the property of
     said defendant for the amount of said fine'and
     costs.
                                          /a/ T.N. EVANS
                                              County Judge,
                                              Freestone County,
                                              Texas"
     You then make the following observations about the
foregoing judgment:
     "This Judgment raises an interesting question.
     Does a judge have the power to suspend a
     license which, under Section 24 of Article 6687b,
     Vernon's Civil Statutes, is 'automatically sus-
     pended upon final conviction'? As we read this
     Judgment, it finds the 'defendantguilty of Driv-
     ing While Intoxicated, fines the defendant $75
     and costs and sentences him to jail for three
     days. In addition to this the judge attempts
     to probate the suspension of the driver's license
     for an eighteen months' period. The Judgment
     was entered February 28, 1969, and we have no

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Col. Wilson E. Speir, Page 3, (M-498   )


     notice of any appeal, so we are assuming it has
     become final. We therefore ask your opinion as
     to whether the judge can in fact probate the
     suspension of the driver's license under these
     circumstances?
     "Should your answer to this question be in the
     negative, we would like an answer to the further
     question as to whether an individual operating
     a motor vehicle after such judgment became final
     would be guilty of the offense of Driving While
     Driver's License was Suspended?"
     The questions you pose can be summarized as follows:
     1. Does a judge have the power to suspend the
execution of the automatic suspension of a driver's
license which occurs after a first conviction for
"driving while intoxicated", an offense defined by
Article 802, Penal Code of Texas?
     2. If the judge does not have this power, can
the defendant be convicted of "driving while license
suspended" under the provisions of Article 6687b,
Section 24, Vernon's Civil Statutes of Texas, when
the judgment of conviction does recite that the
automatic suspension of the drivers license is "sus-
pended"?
     Article 668733,Section 24 (a), provides in part
as follows:
        "Sec. 24. (a) The license of any per-
     son shall be automatically suspended upon
     final conviction of any of the following
     offenses:
        II
         . . .
        "2* Driving a motor vehicle while under
     the influence of intoxicating liquor or
     narcotic drugs;
        II
         . . .
        "(b) The suspension above provided
     shall in the first instance be for a period
     of twelve (12) months. In event any license

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Col. Wilson E. Speir, Page 4, (M- 498 )


     shall be suspended under the provision of
     this Section for a subsequent time, said
     subsequent suspension shall be for a
     period of eighteen (18) months.


     This office has held that when a person is con-
victed for a misdemeanor offense of driving while
intoxicated (first offense) and is placed on probation
in accordance with Article 42.13, Vernon's Code of
Criminal Procedure of Texas, 1965, the judgment of
conviction is not final and accordingly the defendant's
driver's license is not automatically suspended.
Attorney General's Opinion No. C-626 (1966). Accord:
Attorney General's Opinion Nos. C-515 (1965) and
C-685 (1965). However these opinions apply only when
the fine or the sentence, or both, have been probated,
which is not the case here.
     Where the convicting court attempts to suspend
or probate only the automatic suspension of the de-
fendant's driver's license, as in the instant case,
the decision in Davison v. State, 313 S.W.2d 883
(Tex. Crim. 1958) must be given consideration.
Therein, the Court of Criminal Appeals held that the
automatic suspension of a driver's license upon con-
viction for driving while intoxicated was not a part
of the punishment, but only a civil penalty which
was not properly to be considered by either the judge
or jury at the criminal trial.
     However, in 1965, the same year that the misdemeanor
probation law was passed, the Legislature amended Arti-
cle 6678b by the passage of Senate Bill 498, Acts 59
Leg., 1955, Regular Session, Chapter 717, page 1663.
Therein it was provided in Article I, Section 1, Sub-
section (r), that,
     “(r)  The suspension or revocation of a
     license . . . shall be considered as a
     penalty and subject to executive clemency
     as any-other fine or punishment."
     The question naturally arises as to whether the
language of Subsection (r) quoted above would also
apply in probation situations so as to permit the
automatic suspension of a driver's licenses to be pro-
bated upon a conviction for one of the offenses that
carries the automatic suspension.
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Col. Wilson E. Speir, Page 5, (M-498   )

     In answering this question, notice 'should first
be made that Subsection (r) refers only to executive
clemency not judicial probation. The statutory con-
struction maximum, expresio unius eat exclusio alterius
would clearly rule out any speculation that the Legis-
lature intended, in enacting Subsection (r), to include
any application to probation. In Subsection (r) the
Legislature has clearly stated that thenautomatic
suspension is the subject of executive clemency and
so is commutable and pardonable. But by not referring
to probation with reference to the automatic suspension,
the Legislature has just as clearly signified its in-
tention that the subsection is not applicable to pro-
bation situations.
     Second, Subsection (r) and the misdemeanor pro-
bation law (Article 42.13, V.C.C.P;; 1965) were both
passed by the same session of the Legislature, the
59th Regular Session. Subsection (r) appears as a
part of Chapter 717'of the Session Laws while Article
42.13 forms a part of Chapter 722. Article~42;13,
the misdemeanor probation law, provides that where
probation is granted, "the'finding of guilt'does.not
become final." In the present case;the judgment is
"final" with respect to guilt the jail.sentence and
fine imposed. Since the judgment is final/there
can be no probation under the express terms of the
statute, of the suspension of the defendant's driver's
license. As there can be no,probation where the con-
viction is final, any attempt to probate the automatic
suspension of a driver's license is meaningless.
     Moreover, if the Legislature had intended to
permit a convicting Court to probate only the automatic
suspension of the driver's license, the language of
the statute would have been explicit in this regard.
     This view - that there can be no probationof.
only the driver's license suspension - has been ex-
pressed by this office in Attorney General’s Opinion
No. C-685 (1966). In that opinion, it was held that
a trial court has no authority to probate or suspend
&    the automatic suspension of a driver's license
where there is a conviction for "driving while intoxi-
cated" and that any such attempted probation or suspen-
sion is a nullity.



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Col. Wilson E. Speir, Page 6,       (M- 498 )


     Following the course charted by the above cited
authorities, it is our opinion that the part of the
judgment of conviction by the County Court of Freestone
County set out above, which purportedly probates the
suspension of the defendant's driver's license, has
no force and effect and is a nullity in the eyes of
the law.
     We, accordingly, answer your first questionin
the negative - a judge, acting judicially in criminal
prosecutions for driving while intoxicated, does not
have the power to probate or suspend the automatic
suspension of a driver's license upon a conviction
for driving while intoxicated.
     In this respect, our conclusion would not be changed
by House Bill 363, Chapter 614, page 1824, Acts, 61st
Legislature, Regular Session, 1969, amending Section
22 of Article 6687b, Vernon's Civil Statutes, by adding
new subsections (e) and (f) thereto. These provisions
apply to the power of a judge acting in administrative
proceedings and authorizes the probation of the sus-
pension of a driver's license in various instance
that are not material here,
     There remains consideration of your second question.
Can the defendant in the present case be convicted of
driving while his driver's license is suspended? In
any criminal prosecution, there exists the possibility
that a court or jury could find the defendant guilty.
However, certain practical questions arise which could
result in an unsuccessful criminal prosecution.
     Given only the judgment of conviction, reciting
that the suspension of.the defendant's driver's license
has been probated, the present defendant might urge,
to a charge of "driving while driver's license sus-
pended," the defense of mistake of fact,a defense
which could be held to arise under Article 41 of the
Penal Code of Texas.
     Here, the defendant in the "driving while intoxi-
cated" case might be successful in proving that he was
"laboring under a mistake (of) fact" if later charged
with "driving while license suspended". He could urge
that the earlier "driving while intoxicated" judgment
informed him and led him to reasonably believe that
his license was not, in fact, suspended and that

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Col. Wilson E. Speir, Page 7, (M- 498 )


he had a valid license for the operation of a motor
vehicle. While we find no Texas cases in point, there
are authorities in other jurisdictions to the effect
that reliance on a court judgment is a defense. There
is also authority to the contrary. 21 Am. Jur. 2d 177,
Criminal Law, Sec. 96, and cases cited.
     However, your department, is not powerless in the
instant situation. You know of the conviction for driv-
ing while intoxicated and have the power to require this
defendant to surrender his.license under the authority
conferred upon you by Article 668713,Section 32, Vernon's
Civil Statutes, which reads in pertinent part:
        "Sec. 32. It shall be unlawful1 for
     any person to commit any of the following
     acts:
        II
         . . .
        "4. To fail or refuse to surrender to
     the Department on demand any operator's,
     commercial operator's, or chauffeur's
     license which has been suspended, can-
     celled, or revoked as provided by law;


See Attorney General's Opinion No. V-91 (1947) for an
interpretation of the foregoing,statutory provision.
     It is seen that the answer to your second question -
can the instant defendant be convicted of "driving
while license suspended - is contingent upon whether
the defendant knows that the attempted probation of
the suspension of his license is a nullity. If he
does not know that the probation provision is void,
he could not, in all likelihood, be convicted of
"driving while license suspended". If he does know
that the probation provision is without the power
of the court to make, then a conviction for "driving
while license suspended" could be obtained.

                        SUMMARY
          Our answer to your first question is that
     a trial judge in a criminal proceedings does

                          -2385-
        Col. Wilson E. Speir, Page 8, (M- 498)

        not have the power to probate or suspend the
        automatic suspension of a driver's license
        which results after a conviction for "driving
        while intoxicated" unless the entire judgment
        of conviction and sentence is probated, and
        any attempted probation or the suspension of
        only the driver's license suspension is a
        nullity.
             Our answer to your second question is that
        a defendant may or may not be convicted of driv-
        ing while his license is suspended, depending upon
        the finding of a particular court or jury.
        However, such defendant, upon demand by the
        Department of Public Safety, can be required
        to surrender his license pursuant to Article
        6687b;Section 32, Vernon's Civil Statutes.




                                        eneral   of Texas
Prepared by Lonny F. Zwiener
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Allen
John Banks
Harold Kennedy
James Cowden
NEADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant


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