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    Mr. Willie 8. DuBose
    County Attorney
    Midland County Courthouse
    Midland, Texas 19701
                            Opinion No. M- 239
                            Re: Whether a Justice of the Peace,
                                 in an administrative hearing pur-
                                 suant to Article 668i'b,Section 22,
                                 V.C.S. of Texas, may proceed to
                                 hear the merits and enter a valid
                                 finding or order in the absence of
                                 the licensee's personal appearance
                                 or signed post office receipt show-
                                 ing delivery of the notice.of hear-
                                 ing upon him, and related question.
    Dear Mr. DuBose:
         In your Opinion Request to this office you pose the
    folkwing two questions:                              ,.,

           (1) May a Justice of the Peace, in an Administrative
               Hearing brought under Art. 668733,~Section 22,
               Vernon's Civil Statutes, proceed to hear the
               merits and make any valid findings or orders
               when the licensee does not appear at the hear-
               ing and there is no signed Post Office receipt
               showing delivery of the Notice of Hearing, even
               though such notice is shown to have been sent
               by certified mail to the address shown on his
               license?
           (2) Would a susoension which resulted from such a
               hearing, i<void,F be given any additional valid-
      ‘.
               ity by the fact 'thatthe licensee is subsequently
               given actual or constructive notice of said sus-
               pension?
         WB assume from your wording of the first question that
    service by certified mail is not shown to have,been completed
    in that there is an absence of a receipt of notice therefor


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Mr. Willie B. DuBose, Page 2, (M-239)


validated by an official post office postmark. Presumably
the notice was returned unreceipted for or is otherwise un-
accounted for.
     Article 6687b,   Section 22(a) provides, in part:
          n . a *Such hearing shall be had not less than
          ten (I.01days after notification to the licensee
          or operator under any of the provisions of this
          section, and upon charges in writing a copy of
          which shall be given to said operator or licensee
          not less than ten (10) days before said hearing. . .
          Notice by registered mail to address shown on the
          license of licensee shall constitute service for
          the purpose of this Section."
    Article 29c, Vernon's Civil Statutes,   provides, in part:
          "All persons, firms S a O municipalities, counties
          and other political subdivisions of the state D . .
          are hereby authorized and empowered to use certi-
          fied mail with return receipt requested in lieu of
          registered mail in all instances where registered
          mail has heretofore been required or may hereafter
          be authorized by law. The mailing of any required
          notice of hearing- 0 <by such certified mail shall
          have the same legal effect as if sent by registered
          mail, provided receipt for such certified mail
          is validated by official post office postmark . . ."
     It is the opinion of this office that a Justice of the
Peace may not conduct an administrative hearing under Article
6687b, Section 22(a) and as modified by Article 29c, when the
licensee does not appear at the hearing and where service is
attempted by certified mail and there is no signed Post Office
receipt showing delivery of the Notice of Hearing, even though
such notice is shown to have been sent by certified mail to
the address shown on his license.
     Cathy v. State, 402 S,W.Zd 743 (Tex.Crim, 1966), involved
a situation where the Texas Department of Public Safety attempted
to notify Appellant by certified mail of a hearing to determine
whether or not Appellant was an habitual violator of the State
traffic laws. The notice was returned to the Department unde-
livered and not receipted for. The Department held the hearing
and suspended Appellant's license. The Court# in reversing
.     .




    Mr.   Willie B. DuBoSe, Page 3, (W-239)


    Appellant's conviction for driving while his license is sus-
    pended, held "that service, as required by Section 22, Article
    6687b. was not had uoon Aonellant" and the susuension was
    void.' In accord, Sm'rthVI-State, 168 Cr.P. 185, 324 S.W.?d
    207 (1959).
         It is concluded that if the licensee does not appear at
    the hearing and the Department attempts notice by certified
    mail, it must produce the signed return receipt before the
    Justice of the Peace can proceed with the hearing. To do
    otherwise would be to disregard the notice provisions of
    Article 6687b, Section 22(a).
         It is also the opinion of this office that a suspension
    resulting from a hearing where the licensee was given no notice
    of the hearing would not be given any validity by the licensee
    subsequently receiving actual or constructive notice of the
    suspensions
          Article 6687b, Section 22 (c), provides, in part:
                *
                . . .If any licensee who is a party to such
               final rulino and decision of the Deoartment
               fails within thirty (30) days to institute
               or prosecute a suit to set such suspensions
               aside, then said final ruling and decision
               of the Department shall be binding upon all
               parties thereto." (hlphasis added).
         Jurisdiction of the person of a defendant is acquired by
    service of such process as the law provides, or by his voluntary
    appearance, or by his waiver of service. Stanley v. Columbus
    State Bank, 258 S.W.Zd 840 (Tex.Civ.App. 1953, error ref. n.r.e.1.
    As jurisdiction is the power of a court to hear and determine a
    controversy between parties to a suit, the failure of the court
    to acquire personal jurisdiction of the licensee would render
    any orders or decrees of the court void. One not properly
    served with process and over whom the Court lacked personal jur-
    isdiction could not be considered as "a party" to any "ruling
    or decision" of that Court. Therefore, the suspension would not
    be given validity by the mere fact that the licensee was sub-
    sequently given actual or constructive notice of the suspension.
           While it may be contended that the suspension of a driver's
    license is a civil matter to be decided by the civil courts, and
    undtir   the statutory provisions in Article 6687b, Section 22 (a),
    service of notice is sufficient if mailed by certified mail,
    though not delivered, nevertheless, in view of the decision of
    the Court of Criminal Appeals construing that statute, the
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Mr. Willie 8. D&se,   Page 4, (M-2391


Supreme Court has made it clear it will follow the decision
of the Court of Criminal Appeals in construing the same
statute in a penal case. Shrader v. Ritchey, 158 Tex. 154,
309 S.W.2d 812 (1958),
     In other situations where no criminal prosecution arises
under the statute and the same or similar situation, the result
reached here would not necessarily apply.
                        SUMMARY
        A Justice of the Peace in an administrative
     hearing brought under Article 6687b, Section 22,
     Vernon's Civil Statutes, may not proceed to hear
     the merits and make any valid findings or orders
     when the licensee does not appear at the hearing
     and where service is attempted by certified mail
     and there is no signed Post Office receipt show-
     ing delivery of the notice of hearing.
        A suspension resulting from a hearing where
     the licensee was given no notice of the hearing
     would not be given any validity by the licensee
     subsequently receiving actual or constructive
     notice of the suspension.




                                  eneral of Texas

Prepared by Dunklin Sullivan
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
iiawthornePhillips, Chairman
Kerns Taylor, Co-Chairman
Jo Betsy Lewallen
Ralph Rash
Malcolm Quick
Fisher Tyler
A.J. CARUBBI, JR.
Executive Assistant
