   The Attorney                General of Texas
                        July    3,   1978




Honorable Ogden Bass                          Opinion No. Ii- 1201
Brazoria County District Attorney
Angleton, Texas 77515                         Re: Whether a magistrate in an
                                              administrative    driver’s license
                                              suspension hearing authorized by
                                              67011-5, V.T.C.S., has the power
                                              to probate the suspension of the
                                              driver’s license.

Dear Mr. Bass:

      You have requested our opinion as to whether a magistrate in an
administrative  hearing under article 67011-5, V.T.C.S., is authorized to
probate the suspension of a driver’s license.

     Section 2 of article 67011-S provides:

              If a person under arrest refuses, upon the request of
           a law enforcement officer, to submit to a chemical
           breath test designated by the law enforcement officer
           as provided in Section 1, none shall be given, but the
           Texas Department of Public Safety, upon the receipt
           of a sworn report of the law enforcement officer that
           he had reasonable      grounds to believe the arrested
           person had been driving or was in actual physical
           control of a motor vehicle upon the public highways of
           this State while under the influence of intoxicating
           liquor and that the person had refused to submit to the
           breath test upon the request of the law enforcement
           officer, .shall set the matter for a hearing as provided
           in Section 22(a), Chapter 173, Acts of the 47th
           Legislature, Regular Session, 1941, as amended (Article
           66874 Vernon’s Texas Civil Statutes), if, upon such
           hearing the court finds (1) that probable cause existed
           that such person was driving or in actual physical
           control of a motor vehicle on the highway while under




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Honorable Ogden Bass    -   Page 2    (H-1201)



           the influence of intoxicating liquor at the time of the arrest
           by the officer, (2) that the person was placed under arrest by
           the officer at such time and before offering the person an
           opportunity to be tested under the provisions of this Act,
           and (3) that such person refused to submit to the test upon
           request     of the officer,    the Director    of the Texas
           Department     of Public Safety shall suspend the person’s
           license or permit to drive, or any nonresident operating
           privilege for the period ordered by the court, but not to
           exceed one (1) year. If the person is a resident without a
           license or permit to operate a motor vehicle in this State,
            the Texas Department of Public Safety shall deny to the
           person the issuance of a license or permit for a period
           ordered by the court, but not to exceed one (1) year.
           Provided, however, that should such person be found %ot
           guilty” of the offense of driving while under the influence of
           intoxicating liquor or if said cause be dismissed, then the
           Director of the Texas Department of Public Safety shall in
           no case suspend such person’s driver’s license; or, in the
           event that proceedings had been instituted resulting in the
           suspension of such person’s driver’s license, then the
           Director of the Texas Department of Public Safety shall
           immediately reinstate such license upon notification of such
           acquittal or dismissal by the county clerk of the county in
           which the case was pending. Notification to the Director of
           the Texas Department of Public Safety shall be made by
           certified mail.

Thus, under the terms of the statute, a hearing must be held whenever an officer
has “reasonable grounds” to believe that a person has been driving a vehicle while
under the influence of intoxicating liquor, and that person refuses the officer’s
request that he submit to a breath test. If the magistrate makes certain findings,
the statute requires~the suspension of the person’s license to drive for a period of
up to one year. You ask whether the magistrate may probate this suspension.

      The hearing contemplated by article 67011-5 is the kind “provided in Section
22(a). . . article 6687b. . . .I’ Section 22(e) of article 6687b provides:

              The judge or officer holding a hearing under Subsection
           (a), (b), or (d) of this section, or the court trying an appeal
           under Subsection (c) of this section, 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




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    Honorable C&den Bass     -   Page 3 (H-1201)



               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.

    The procedure of section 22(a) is applicable to a hearing based upon failure to
    submit to a breath test, and section 22(e), which authorizes probation of the license
    suspension, is applicable to hearings under subsection (al. It follows therefore that
    probation of the license suspension is a permissible alternative in any hearing based
    upon failure to submit to a breath test.

           Attorney General Opinion M-496 (19691, which held that probation is not
    permitted for an automatic license suspension after a conviction for driving while
    intoxicated unless the entire judgment of conviction and sentence is probated, is
    not to the contrary.      That opinion dealt with automatic suspension based upon a
    criminal conviction under section 24 of article 6687b. Section 22e of article 6687b,
    on the other hand, applies only to the authority           of a judge acting in an
    administrative    capacity.   Accordingly, it is our opinion that a magistrate in an
    administrative    hearing under article 67011-5 may probate the suspension of a
    driver’s license.

                                      SUMMARY

               A magistrate in an administrative hearing under article 6701
               1-5, V.T.C.S., may probate the suspension of a driver’s
              iicense.




    APPROVED:




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Honorable Ogden Bass   -   Page 4   (H-1201)




C. ROBERT HEATH, Chairman
Opinion Committee

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