                                            -..-~--..---
    -.
.




         Honorable Clifford Powell
         County Attorney                Opinion NO.            M-673
         Grayeon County Courthouse
         Sherman, Texas                 RS:       Article 802f, Penal Code,
                                                  and related questions.
         Dear Mr. Powell:
              You requested an opinion of this office concerning a
         suepension of an operator's license where a Defendant who
         ham been arrested for driving while intoxicated, first
         offehne, refut?elr
                          to mubmit to a Chemical Breath Tzs
         provrddd for in Article 802f, Texas Penal Code, commonly
         referred to as tbe "Implied Consent" law.
              Rephrased, your questions are       as follows:
              1. Where, upon arrest for driving while in-
              toxicated, first offense, a defendant refuses
              to take a chemical breath test and later is
              found guilty of misdemeanor driving while in-
              toxicated and receives a probated sentence, is
              that Defendant &ill subject to the adminfstra-
              tive procedure to revoke his operator’e  license
              under provisions of Article 802f, Penal Code?
              2.  If the Defendant refuses to take the chemical
              breath test upon arr,estfor timdemeanor driving
              while intoxicated and is later found guilty of
              said offense receiving a 12 months l   uspen6ion
              for caid offense as provided in Article 6687b,
              Section 24(a)(2), iu a pending administrative
              case filed by the arresting officer    for     Me
              Defendant's refumal to take the   test   atill    re-
              quired?




                                                           Y


                                        -3210-
,      ,




    Honorable Clifford Powell, Page 2,   (M-   673 )


           3. If the answer to question 2 is Yes, then do
           the two suspensions of the driver's license run
           concurrently or consecutively?

                                    1.
         In answer to your first question, it is our opinion
    that a defendant who receives probation for the offense of
    misdemeanor driving while intoxicated (Article 802, Texas
    Penal Code), and who refuses to take the chemical breath
    teat upon arrest as provided in Article 802f, Penal Code,
    is subject to the administrative proceedings of Section 22,
    Article 6687b, Vernon's Civil Statutes, as amended, to re-
    voke his operator's license.
         Accordina to Section 24(a)(2), Article 6687b, the
    operator's license of any individual is suspended for 12
    months automatically upon final conviction for the criminal
    offense of driving while intoxicated (Article 802, Penal
    Code). Attorney General's Opinions Nos. M-640, C-515, and
    C-685 held thatan operator's license is not suspended
    however, where conviction for the misdemeanor offense of
    driving while intoxicated is probated. There is no final
    conviction under the Misdemeanor Probation Law, Article
    42.13, Texas Code of Criminal Procedure, where a probated
    sentence is imposed unless the probation is revoked. Attorney
    General's Opinion No. M-640.
           The Legislature has the right and power to enact
    statutes for the protection of the general public travel-
    ing the highways of Texas, and to require that the privilege
    of maintaining an operator's license be attendant with some
    oblisations and responsibilities. Gaytan v. Caaaidy,
    F.Su&.      (W.D. Tex;. 1970); Gillespie v. Tex;s Department
        --.~ 347 u.8.yh3;~i Tex. 459, L59 s.w.Zd 17 (1953) cert.
     ,f-Zil&afet
    c-
    aenfec                  Two separate Texas courts have held
    constitutional the procedure for hearings and appeal from
    administrative decisions founded under Section 22, Article


    1960 writ).



                                   -3211-
_...   -   .._   __



                      .




                          honorable Clifford Powell, Page 3, (M- 673 )


                               Section 2, Article 802f, provides for utilization of the
                          administrative procedures found in Section 22(a), Article
                          668713,Revised Civil Statutes of Texas, as emended, which are
                          civil end administrative in nature, generally independent of
                          any criminal proceedings which may be instituted pursuant to
                          other statutes or ordinances. The legislature provided in
                          Section 2, Article 802f, that any individual shall have his
                          license suspended if a sworn statement is filed by a law en-
                          forcement officer that he has reasonable grounds to believe
                          that the arrested person did drive or was driving a motor
                          vehicle upon public highways of this state while under the
                          influence of intoxicating liquor end that the individual
                          refuaed to submit to the test, end that the hearing officer
                          finda upon hearing that probable cause existed that the in-'
                          dividual was operating or had been operating a vehicle on
                          the public roads of this state under the influence of in-
                          toxicating liquor.
                               Thus, the legislature has established en additional
                          civil sanction of possible suspension of driver's license
                          by administrative hearing separate end independent of the
                          automatic suspension impoaed by Section 24(a)(2), Article
                          6687b.l Article 802, Vernon's Penal Code, imposes a civil
                          asnction.even though it'ia found in the Penal Code.




                                1
                                  CAVEAT : Section 7(b), Article 42.13, Texas Code of
                          Criminal Procedure provides that the administrative hearing
                          may not take into account the finding of guilty after the
                          probated case is dismissed by the court, in the following
                          language: "After the case against the probationer is dis-
                          missed by the court, hia finding of guilty may not be con-
                          sidered for snx ur oae except to determine his entitlement
                          to a future probat   on under this Act, or any other probation
                                           ,5?----
                          Act."




                                                       -3212-    .
Honorable Clifford Powell, Page 4, (M- 673 )


                               2.
    fin answer to your second question, it is our opinion that
a pending administrative case filed under Section 22(a), Arti-
cle 6687b, by the arresting officer for the defendant's refusal
to take the chemical breath test, is not re uired to be heard
or brought to a conclusion or decision
                                     .--IT+-
                                        y t e administrative
agent for the Texas Department of Public Safety. Such hearing,
however, may be had or-ma continue either after or before     -
the defendant is found h            Article 802. Vernon's
Penal Code, of driving while-intoxicated, firat.offense, if
the Texas Department of Public Safety wishes to suspend the
operator's license.
     Section 2, Article 802f, provides that upon refusal to
take the chemical breath teat and receipt of a sworn report
as to reasonable grounds by the arresting officer the Texas
Department of Public Safety or its agent shall set the matter
for a hearing as provided in Section 22(a), Article 6687b.
There is no language, either directory or mandatory, which
requires the hearing to be had or to continue after it is
set; neither is there any language which prohibits such hearing
from taking place after a conviction for the misdemeanor
offense is obtained. We are strengthened in this reasoning
by the.following language of Section 2, Article 802f, which
invokes the maxim that the expression of a particular thing
excludes the idea of something else not mentioned, or "expreasio
unius ee,texlueio alterius:"
       II
        . . .Provided, however, that should such person
       be found 'not 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 persons driver's license;
       . . .II
     Had the legislature intended to prohibit the Department
from instituting proceedings $+nderSection 22(a), Article
6687b, to suspend the operator's license separately and in-
dependently of the automatic suspension provided for in Sec-
tion 24Ca) (2) of this same Article, our opinion is that it
would have specifically done so. By failing to disallow
suspension of an operator's license where a guilty finding



                               -3213-
honorable Clifford Powell, Page 5, (M-673 1


is made the statute infers that all omissions were intended
by the legislature and that the administrative proceedings
are therefore maintainable. We find no basis in reason or
legislative history for any contention that the implied con-
sent law, Article 802f, Vernon's Penal Code, and the criminal
offense article, Article 802, of that Code, are to be con-
strued together to allow the guilty plea to nullify the effect
and meaning of the implied consent test.
     Further, such interpretation would be unconstitutional
under the coercion doctrine of U.S. v. Jackson, 390 U.S. 570,
(1967), for it would place a premium on guilty pleas by saying
that no operator's license can be suspended under the implied
consent law if the defendant pleads guilty to the criminal
offense of driving while intoxicated, whether or not he re-
ceives probation. See a similar Ohio case Hoban v. Rice, 7
Cr.L. 2257,tJune 25, 1970). A hearing must be held, however,
to determine if probable cause exists to suspend the license
and such hearing must comport with the requirements of Arti-
cle 42.13(7)(a), Texas Code of Criminal Procedure, unless the
operator waives his rights to a hearing and submits to the
suspension voluntarily.

                              3.

     In answer to your third question, it is our opinion that
should an administrative hearing on sworn statement be held
pursuant to Section 22(a) , Article 6687b, any suspension may
run either concurrently or consecutively or both with the auto-
matic suspension imposed by,Eection 24(a)(2), Article 6687b.
     Any other result would be tantamount to refusing to allow
the legislature to impose additional reasonable responsibili-
ties and obligations upon the privilege to drive the highways
of this state. Simply stated, by enactment of the hearing pro-
visions in Article 802f, under Section 22(a), Article 6687b,
the legislature has provided for more than the former minimum
12 months revocation upon a finding of driving while intoxicated;
whether or not that findin< is by administrative or judicial
decision; without regard to and independent of the character
or osigin of that finding , viz., civil or criminal. Whether
the auepenaion periods run concurrently or consecutively is




                              -3214-
Honorable Clifford Powell, Page 6, (M- :673 )


left solely to the administrative discretion of the hearing
officer or magistrate.
     It is therefore possible that with consecutive terms of
suspension, and under the proper factual circumstances, sua-
pension of an operator's license may be for as long as a
period of two years.
     We view the above conclusions as properly harmonious and
comporting with the legislative history, object and purpose
of the statute: An attempt to provide stringent regulation
for safer highway travel in the face of sn increasing number
of accidents caused by individuals who drive while intoxicated.


                       SUMMARY

        A defendant who receives probation for
     the misdemeanor offense of driving while
     intoxicated, under Article 802, Texas Penal
     Code, and who refused to take the chemical
     breath test upon arrest as provided in
     Article 802f, Penal Code, is subject to the
     administrative proceedings of Section 22(a),
     Article 668713,V.C.S., as amended, to re-
     voke his operator's license.
        A pending administrative case filed by the
     arresting officer for the defendant's refusal
     to take the chemical breath test is not required,
     but may be held or brought to a conclusion,
     additionally suspending an individual's opera-
     tor's license, where that person has been found
     guilty of the misdemeanor offense of driving
     while intoxicated and has received an automatic
     suspension under the terms of Section 24(a) (21,
     Article 6687b, V.C.S., as..amended,where the
     Texas Department of Public Safety deems such
     action necessary or proper.




                              -3215-
Bonorable Clifford Powell, Page 7, (M- 673)


         Should an administrative hearing be held
      upon refusal of an individual to submit to a
      chemical breath test upon arrest, any suspen-
      sion of an operator's license based upon Sec-
      tion 22(a), Article 668733,V.C.S., as amended,
      may run either consecutively or concurrently,
      depending upon the facts and decision of the
      hearing officer, with the automatic suspension
      imposed by Section 24(a) (2).
                              YO       very tr   yI
                                   ?
                                         & ./@s
                                 WFO   C. MARTIN
                            4 Attor  y General of Texas
Prepared by Bennie W. Bock, II
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim   Swearingen
Tom   Sedberry
Rex   White
Jay   Floyd
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WbITE
First Assistant Attorney General




                              -3216-     -
