                                                The Attorney                   General of Texas
                                                                       April 11. 1984
    JIM MATTOX
    Attorney General



    Supreme      Court Building               Honorable Joe Warner Bell                   Opinion No. JM-146
    P. 0. BOX 12546                           Trinity County Attorney
    Austin.    TX. 78711.2546
                                              P. 0. Box 878                               Re: Whether a person arrested
    51214752501
                                              Groveton, Texas   74845                     prior to January I, 1984, for
    Telex    9101874-1367
    Telecopier     51214750266                                                            driving while intoxicated may
                                                                                          be granted a deferred judgment
                                                                                          after January 1, 1984
    714Jackson, Suite 700
    Dallas,TX. 75202.4506
    2141742.6944                              Dear Mr. Bell:

                                                   You have requested that this office determine the effects of
    4624Alberta           Ave., Suite   160   recent amendments to article 42.13, section 3d of the Code of Criminal
    El Paso, TX.          79905-2793
                                              Procedure on defendants in driving while intoxicated [hereinafter DWII
    915l533.3464
                                              misdemeanor actions involving a violation of article 67011-1, V.T.C.S.
                                              Prior to amendment, article 42.13, section 3d authorized courts to
p      01 Texas,    Suite 700                 "defer further proceedings without entering a" adjudication of guilt"
     ,ous,on,    TX. 77002-3111               in any misdemeanor case. See Attorney General Opinion MW-133 (1980).
    713/223.5666                              The amendments to which you refer remove misdemeanor DWI actions from
                                              the scope of section 3d. Article 42.13, section 3d, as amended by
    606Broadway,            Suite 312
                                              Senate Bill No. 1 of the Sixty-eighth Legislature, provides in
    Lubbock,        TX.    79401.3479         relevant part:
    CVN747.5236
                                                           (a) Except as provided by Subsection (d) of
    4309 N. Tenth. Suite B
                                                        this section when in its opinion the best interest
    ,&Allen, TX. 76501.1605                             of society and the defendant will be served, the
    5121662-4547                                        court may, after receiving a plea of guilty or a
                                                        plea of nolo contendere, hearing the evidence, and
                                                        finding that it substantiates the defendant's
    200Main       Plaza, Suite 400
    San    Antonio.    TX. 76205.2797
                                                        guilt, defer further proceedings without entering
     512/225-4191                                       a" adjudication of guilt and place the defendant
                                                        on probation for a period as the court may
                                                        prescribe, not to exceed the maximum period of
     An Equal       Opportunity/
                                                        imprisonment prescribed for the offense for which
     Affirmative      Action     Employer
                                                        the defendant is charged.

                                                               .   .   .   .

                                                           (d) This section does not apply to a defendant
                                                        charged with a" offense under Subdivision (21,
                                                        Subsection (a). Section 19.05. Penal Code, or an
                                                        offense under Article 67011-l. Revised Statutes,
                                                        as amended.
                                                                        ,.   f



Honorable Joe Warner Bell - Page 2   (JM-146)




Acts 1983, 68th Leg., ch. 303, 516, at 1594, 1595. The above
amendments to article 42.13, section 3d took effect on January 1,
1984. See Acts 68th Leg., ch. 303, 929, at 1607. You ask whether a
court maygrant a deferred judgment to a defendant who is charged with
a misdemeanor prior to January 1, 1984 but whose case comes to trial
after January 1, 1984. We conclude that it can.

     Statutes should be read as a whole and should be construed to
give meaning and purpose to every part. Ex parte Pruitt, 551 S.W.2d
706, 709 (Tex. 1977). It is apparent from the entirety of Senate Bill
No. I that the legislature clearly intended to initiate stronger
measures to deal with offenses involving intoxicated drivers. Section
16 of Senate Bill No. 1, quoted above, limits the court's power to
grant deferred adjudications in DWI cases. Section 28 of Senate Bill
No. 1 articulates the intended scope of the act:

             (b) The changes in law made by this Act for the
          punishment of an offense under Article 67011-l.
          Revised Statutes, ss amended, apply only to the
          punishment for an offense committed on or after
          the effective date of this Act. For purposes of
          this section, an offense is committed before the
          effecti.vedate of this Act only if any element of
          the offense occurs before the effective date.

             (c) An offense committed before the effective
          date of this Act is covered by the law in effect
          when the offense was committed, and the former law
          is continued in effect for this purpose.

             (d) Article 5.03-l. Insurance Code, applies
          only for convictions of offense that occur after
          the effective date of this Act.

Acts 1983, 68th Leg., ch. 303, 928, at 1607.

     It is our opinion that the amendments contained in section 16 of
Senate Bill No. 1, which deny to defendants in DWI actions the
deferred judgment provisions of article 42.13, section 3d. do not
apply to violations that occurred before the effective date of the
act. According to section 28, the law at the time the offense was
committed controls. The pre-amendment article 42.13, section 3d
permitted deferred judgments in misdemeanor DWI actions, and it is
that version of article 42.13 that will control in any trial
proceeding that may result from a pre-1984 DWI charge.

     Our conclusion comports with the constitutional prohibition
concerning the passage of ex post facto laws. Tex. Const. art. I,
§16. One Texas court has defined an ex post facto law as follows:




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        Honorable Joe Warner Bell - Page 3     (~~-146)




                  Any law is an ex post facto law which inflicts a
                  greater punishment than the law annexed to the
                  crime when committed, or which alters the
                  situation of the accused to his disadvantage.

        Ex parte Alegria, 464 S.W.2d 868, 872 (Tex. Crim. App. 1971).

             A defendant who was charged with a misdemeanor DWI under article
        67011-1, V.T.C.S. before January 1, 1984 was elegible for a deferred
        adjudication under article 42.13, section 3d; i.e. a deferred judgment
        was an available punishment "annexed to the crime when committed."
        Under the amendments in section 16 of Senate Bill No. 1, a deferred
        adjudication is not available to a defendant charged with a
        misdemeanor DWI. To remove from a defendant who was charged before
        the passage of Senate Bill No. 1 the possibi.lityof being granted a
        deferred adjudication would certainly alter the position of the
        accused to his disadvantage.

                                     SUMMARY

                     The amendments to article 42.13, section 3d of
                  the Code of Criminal Procedure contained in Senate
                  Bill No. 1, Acts of the Sixty-eighth Legislature,
                  chapter 303 at 1594, which prohibit courts from
                  granting a deferred adjudication to a defendant
                  charged with a misdemeanor DWI under article
                  67011-1, V.T.C.S., do not apply to defendants who
                  were charged prior to the January 1, 1984
                  effective date of the amendments.




                                                 JIM     MATTOX
                                                 Attorney General of Texas

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Rick Gilpin
        Assistant Attorney General




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Honorable Joe Warner Bell - Page 4   (JM-146)




APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Ji,mMoellinger
Nancy Sutton




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