                                  The Attorney             General of Texas

JIM MAlTOX
                                                       '?l.sy 19. 1986
Attorney General



Supreme Court Building           Eonotable William C. Wright               Opinion No.     .J&496
P. 0. Box 12548
                                 Orange County Attcrney
Austin. TX. 78711. 2548
512,475.2501
                                 Courthouse                                Re: Whether an individual's    license
Telex 91018761367                Orange, Texas    71630                    may be suspended under section 2(f)
Telecopier   512/475-0266                                                  of article  67011-5, V.T.C.S.,    under
                                                                           certain circumstances
714 Jackson, Suite 700
Dallas, TX. 75202.4508           Dear Mr. Wright:
214/742-8944
                                       You ask whether a provision      requiring the Texas Department of
                                 Public Safety to request a hearing within 10 days after the receipt of
4024 Alberta   Ave.. Suite 160
                                 demand for a hearing is mandatory or directory.      You also ask whether
El Paso, TX. 799052793
9151533-3484
                                 a court has discrlztion    as to the length of a suspension of a driver's
                                 license  for failure    to give a blood or breath specimen.    Your first
                                 question is based on the following     statute:
1Wl 1exa.3, ?dte 700
Houston, TX. 77002-3111                         when the director      [of the Department of Public
7131223.5888
                                            Safety]   receives      [a report     that a person has
                                            refused to give a breath or blood specimen],               the
806 Broadway. Suite 312                     director     shall    suspend    the person's        license,
Lubbock. TX. 79401.3479                     permit.   or nonresident       operating     privilege,       or
8081747.5233
                                            shall issue ao order prohibiting           the person from
                                            obtaining a license       or permit, for 90 days effec-
4309 N. Tenth. Suite B                      tive 28 days after        the date the persoa receives
McAllen, TX. 78501-1685                     notice 1)~’ certified     mall or 31 days after the date
5121682~4547                                the director      sends notice by certified          mail, if
                                            the pe!rrroa has not accepted            delivery      of   the
200 Main Plaza. suite 400                   notice.   If, not later than the 20th day after the
San Antonio.   TX. 78205.2797               date on which the person             receives     notice      by
51212254191                                 certified   mall or the 23rd day after the date the
                                            director    sent notice      by certified     mail,     if the
                                            person has not accepted delivery            of the notice,
An Equal Opportunity1
Affirmative Action Employer
                                            the department receives        a written     demand that a
                                            hearing ‘be held, the department shall,             not later
                                            than the 10th day after the day of receipt of the
                                            demand,~request a court to set the hearing for the
                                            earliest   possible    date.   (Emphasis added).

                                 V.T.C.S.   art.   67OL;L-5,   $2(f).



                                                                p. 2257
Eonorable    William C. Wright -. Page 2      (JM-496)




      We musr first    point out that a brief DPS submitted in response LO
your question indicates       a mlsperceptlon    about the w%ure       of an inquiry
into whether s statute that sets out the duty of a public official                   is
mandatory or directory.         The questlon of vhether such a provision             is
mandatory or directory        arises vhen It is necessary to determine the
effect    of   a past     fsilurs.    to comply vith        the provision.          The
determination    that a duty imposed on public officials                is directory
doea not mean that publ:tc officials               can ignore       the duty.       “NO
statutory     provisions      are    intended    by    the    legislature        to  be
disregarded.”      2A Suthar1tn.d Statutory        Construction      $57.01,    p.’ 640
 (rev.  3rd ed. 1943).         In other words,       regardless      of whether the
statute you ask about is rmmdatory or directory,               DPS Is not free to
ignore the requirements of srticle          67011-5.    “Winisterial     officers   sre
not wponents      of law, they are not free to perform or not perform
clear legal duties as their fancy dictates,              and they are not immuue
from compulsory process.”          ‘Glass v. Smith. 238 S.W.2d 243 (Tex. Civ.
APP. - Austin 1951). gi,,             244 S.U.2d 645 (1951).          Therefore,    DPS
must comply with the require=nts          of article    67011-5 $2(f).

      Article   67011-5,   02(f).     states     that DPS “shall”         request   a
setting   “not later than tt,e 10th day after the day of receipt              of the
demand.” You ask whether ,that provision             Is mandatory or directory.
The difference    between a mandatory and a directory           provision    Is that
failure   to comply with a INrectory provision            does not Invalidate     the
underlying proceeding unlows the complaining party can show that he
was harmed by that failure.        See State v. Boren, 654 S.W.2d 541 (Tex.
Clv. App. - WACO 1983, no vrit).               In contrast,      the effect     of a
mandatory statute Is "to r,equirc at least substantial              compliance with
its provisions   in order to uphold the proceedings to vhich the statute
is applicable.”      Toyah Independent School District            v. Pecos-Barstuw
Independent School Districr,       466 S.W.2d 377, 380 (Tex. Clv. App. - San
Antonio 1971, no writ)       citing    3 Sutherland Statutory Construction,
15815, p. 90 (3d ed. 194X:1. -Although “shall”              generally   indicates    a
command, the courts have held In a number of cases that the vord
“shall”    In a statutory   pcovlsion     setting      a time limit for the per-
fonsance of a duty Is djrectory          rather than msndarory.
Lewis V. Jacksonville      Bui~ldins & Loan Association.            540 vS.W. d 307
 (Tex. 1976); Chisholm v. ZBevley gills,           287   S.W.Zd 943 (Tcx. 1956);
Department of Public Safecar v. Dawson, 360 S.W.2d 860 (Tex. Clv. App.
- Dallas 1962, no writ);      litate v. Fox, 133 S.W.2d 987 (Tex. Clv. App.
- Austin 1939, wit ref’dj:

       The    key to whether e statutory            provision    is   mandatory     or
 directory    is legislative :.utent:

              In determining whether the Legislature         intended
              the particular      provision to be mandatory or merely
              directory,      consideration   should be given to the
              entire     *ct,    its   nature   and object,  and the




                                         p. 2258
Aonorable   William C. Wrlghi: - Page 3      (m-496)




            consequences that would follow from each construc-
            tion.    Provisionr; which are not of the essanca of
            the thing to be done, but which are included for
            the purpose of ~momoting the proper, orderly and
            prompt conduct of business,          are not generally
            regarded as mandatory.         If the statute      directs,
            authorizes or commands an act to be done within a
            certain time, the absence of words restraining            the
            doing thereof      afterwards    or stating    the couse-
            quences    of    fallura    to   act   within    the time
            specified,    may ‘~a considered      as a circumstance
            tending to support a directory       construction.

Chisholm, 281 S.W.2d at 91,5. The courts have noted that regulations
requiring actions to be pe::formad within a certain time are especially
likely    to be directory   If they regulate    the conduct of public
officers.    Dawson, 360  Z,.W.2d at 862; Fox,     133 S.W.2d at 990.
Sutherland explains the remon for this rule:

                For the raasm that individuals      or the public
            should not be mc1d.eto suffer for the dereliction
            of public    of filxrs,  provisions   regulating   the
            duties of public officers    and specifying   the time
            for their performance are in that regard generally
            directory.

Sutherland Statutory Construction   05816, at 102 (3rd ed. 1943).      If
faced with the question     1of the effect    of the violation     of the
provision  In question in this case, a court would probably hold that
the provision  in question is directory     rather than mandatory.    See
Departmant of Public Safety v. Dawson, 360 S.W.2d 860 (Tex. Civ. App.
- Dallas 1962, no writ) (c,ixty-day period within which statute allows
DPS to suspend license   is mandatory).    Even so, if a def endaat could
show harm, the underlying proceeding would be void.     The existence  of
harm is a fact question snl would have to be determined case by case.

     DPS submitted a brief  in response to your request and asked
whether the following procedure does in fact   comply with article
67011-5:

            The Texas Departlnant of Public Safety routinely
            files   admlnistrcltlve     driver’s    license    suspension
            cases     under       article        6687b, section 22 (a),
            V.T.C.S.,    in     four     hundred and fifty-one       (451)
            courts through0t.t the state.           These courts hava,
            by prearrangement,        given the department the au-
            thority to sat a certain number of cases aach week
            in order to hav,a a systematic          and orderly proce-
            dure to handle 1:he approximately           seventy thousand



                                        p. 2259
Eonorable   William   C. Wright .- Page 4 (J&496)




            (70,000)     adminis!:rativa       hearing cases which are
            set in these courts each year.               This system avoids
            the problem of the department having to make an
            individual       request. for a court setting          for each
            case.     Within forty-eight         (48) hours of receipt of
            a person’s        writt.en demand for a B/BTg [breath/
            blood test refusal]           hearing,    a computer entry ia
            made to lndlcatu            that the case is set for an
            administrative       h<!a.ring. This means that the case
            will be set as scan as the court              provides Its next
            available     setting date to the department.            As soon
            as the setting tecomes available,                the individual
            and his legal rePresentatlve             (If any) are notified
            of    the tine       ard place        of    the administrative
            hearing.       At praacnt,       over five thousand (5,000)
            cases     are in        the    ‘holding      tank’ awaiting     a
             setting/date.        T’ne B/BTB cases account for over
             four hundred (40(l) of that total number of cases.

Apparently in many cases this procedure does not result in a request
to a court for a hearing wj.thln the time specified   in article   67011-5.
In such cases, DPS may not use this procedure because DPS would not be
complying with Its statutory duty.
      Your second question :Ls whether a court has discretion     as to the
length of suspension of a license under article     67011-5.    The statute
states that if the court makes the required findings

             than the Direct.or    of the Texas Department of
             Public Safety sball suspend the parson’s   license
             or permit to dr:Lve, or any nonresident  operating
             privilege  for a period of 90 days, as ordered by
             the court.

 V.T.C.S.   art.   67011-5,   12(:F).

        The legislature    may knpose duties on judges that do not allow for
 the exercise     of judicial    discretion.       Attorney       General Opinion MW-185
 (1980).     The plain language of section 2(f) allows a court no discre-
 tion in     the length of suspension.           A plain and unambiguous statute
 will be enforced according to its wording.                    Central Education Agency
 v. Independent School Distc:Lct of City of El Paso, 254 S.W.2d 357, 360
  (Tex.   1953).     Also,    the -statutory      predecessor        to article    67OlL-5
 provided for suspension “for a period ordered by the court, but not to
 exceed one (1) year.”          The legislature’s           decision   to supersede that
 language with a provision         for suspension “for a period of 90 days, as
 ordered by the court” indicates           that the legislature           Intended to fix
 the length of the suspension in the new statute and not allow judicial
 discretion.      The phrase “as ordered by the court” simply refers to the
 court ’6 minister%el          duty   to     implement        the    90-day    suspension.




                                         p. 2260
Eonorsble   William C. Wright - Page 5           (JM-496)




Furthermore, section 2(f)    of article 67011-5 states           that    an officer
must inform a person who refuses to give s blood or               braath specimen
that he faces an automatic. 90-day suspension.    Thus,           a court has no
discretion  regarding the ltngth of a suspension under           article   67011-5.

                                    SUMMARY

               A public official     must comply with a statutory
            duty regardless     of whether that duty has been
            found    to   be    "directory"       for   purposes   of
            determining    the effect      of a past failure       to
            CornplY.    A court   has   uo   discretion   as   to the
            length of a suspc~nsion under article       67OlL-5.




                                               LI-AJG
                                                  Very truly yours
                                                          .


                                                  JIM     HATTOX
                                                  Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney     Goners1

MARY KELLER
Executive Assistant     Attorucy     General

ROBERTGRAY
Special Assistant     Attorney     General

RICK GILPIN
Chairman, Opinion Commlttec

Prepared by Sarah Woelk
Assistant Attorney General




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