Hon. Homer Garrison, Jr.,        Opinion No. O-1395
Director, Department of          Re: A suspended sentence
Public Safety                         does not constitutea
Austin, Texas                         final conviction under
                                      Article 6687a, R.C.S.
Dear Sir:                             of Texas.
          This will acknowledge receipt of your letter of
September 6, 1939, in which you submit for an opinion of
thls department the question of whether or not a suspended
sentence given under the Driver's License law constitutes
a final conviction, making necessary the mandatory suspen-
sion or revocation of a driver's or chauffeur's license.
          Paragraph (c), Section 15, of Article 6687a,
Revised Civil Statutes of Texas 1925, provides:
          *For the purpose of this Act the term, 'convlc-
     tion,! shall mean a final conviction. Also, for the
     purpose of this Act, a forfeiture of ball or collateral
     deposited to secure a defendant's appearance In court,
     which forfeiture has not been vacated, shall be equiva-
     lent to a conviction."
          Paragraph (a), Section 16, of the above mentioned
article provides that the license of any person shall be
automatically suspended or revoked upon flnal conviction of
any of the offenses enumerated therein. Paragraph (b) of
the same section and article provides that such mandatory
revocation or suspension shall be for a period of six months
for the first conviction and for a period of one additional
year for the second conviction.
          Articles 776 and 776a, Code of Criminal Procedure
of Texas, 1925, is the authority for the suspension of sen-
tence Imposed in felony cases except those of certain classes
therein specifically enumerated.
          Article 778, Code of Criminal Procedure of Texas,
1925, provides that in cases where a suspended sentencz  is
recommended by the jury and the same has been granted . . .
neither the verdict of convictlon nor the, judgment entered
thereon shall become final, except in the manner and at the
time provided in the succeeding artic1es.e
          Article 779, Code of Criminal Procedure of Texas,
1925, sets out in detail, the manner of making finrd a judg-
ment of conviction wherein a suspended sentence haa been
granted. It reads:
Hon. Homer Garrison,Jr., Page 2'(0-1395)


          'Upo;lthe final conviction of the defendant of
     any other felony pending the suspension of sentence,
     the court granting such suspension shall cause a
     caplas to issue for the arrest of the defendant, if
     he Is not then in the custody of such court, and
     during a term of the court shall pronounce sentence
     upon the original judgment of conviction, and shall
     cumulate the punishment of the first with the punish-
     ment of any subsequent conviction or convictions,
     and In such cases no new trial shall be granted In
     the first conviction."
           Thus it clearly appears from Article 779, supra,
that a sentence
        . .    , imposed upon a defendant
                                  -. -    and suspended
                                                      . by
proper juagment can never oecome rinal except upon tne
happening of certain events, to-wit, a subsequent final
conviction of another felony and the revocation of the
suspension and pronouncement of sentence  by the court upon
such former conviction.
          Article 780, Code of Criminal Procedure further
reflects the intention of the Legislature that a suspended
sentence shall not be considered a final conviction. Such
Article provides:
          "In any case of suspended sentence, at any time
    after the expiration of the time assessed as punish-
    ment by the jury, the defendant may make his written
    sworn motion for a new trial and dismissal of such
    case, stating therein that since such former trial
    and conviction he has not been convicted of any felony,
    which motion shall be heard by the court during the
    first term time after same is filed. If it appears
    to the court, upon such hearing, that the defendant
    has not been convicted of any other felony, the court
    shall enter an order reciting the fact, and shall
    grant the defendant a new trial and shall then dls-
    mles said cause. After the setting aside and dlsmis-
    sal of any judgment of conviction as herein provided
    for, the fact of such conviction  shall not be shown
    or inquired into for any purpose except in cases
    where the defendant has %een again Indictednfor a
    felony and invokea the benefit of this law.
          Our courts have consistently held that where
suspended sentences have been granted there is no final
conviction and no appeal can be had thereon. See Jones
VS. State, 281 SW 1072; Beerman vs. State, 164 SW 840;
Hill vs. State, 243 SW 982 and authorities too numerous
to cite herein.
Hon. Homer Garrison, Jr., Page 3 (O-1395)


          It is the opinion of this department and you are
so advised that there IB no mandatory suspension of driver's
license in the case of conviction wherein a suspended sen-
tence is given unless and until such judgment has become
final by action of the court in keeping with the terms and
provisions of Article 779, Code of Criminal Procedure.
          Truating that this satisfactorily answem      your
inquiry, we are

                               Very truly yours
                           ATTORNEY GERERALOF TEXAS

                          By   B/   LLOYD   ARMSTRONG
                                    Lloyd Armstrong
                                          Assistant
LA:AW- ABM

APPROVED SEP. 23, 1939
s/GERALD C.MAHN
   ATTORNEY GENERAL OF TRXAS          APPROVEB OPINION COBEITTRE
                                      By B.W.B.   Chairman
UJF
