                            m-w-       GENERAL
                             EXAS




Hon. Jack ?I.Holland         Opinion No. C- 254
County Attorney
Henderson County            Re: Whether a person can be
Athens, Texas                   charged with operating
                                a motor vehicle while
                                his license was under sus-
                                pension, when he has plead
                                guilty and paid a fine for
                                operating a motor vehicle
                                without a driver's license,
                                involving the same trans-
Dear Mr. Hollandt               action.
     In Your letter requesting an opinion of this office, you
state the following facts:
               "A person was charged in a justice of the
          peace court with a violation of Article 6687b,
          Section 2(a), to wit: not having a driver's
          license. The defendant pleaded guilty and
          paid a fine.~ A subsequenttraffic check with
          the Deoartment of Public Safety revealed that
          the defendant's driver's license had previously
          been suspended and said suspensionwas In effect
          at the time the defendant was charged and pleaded
          guilty in the justice court and still is in ef-
          fect. I would appreciateyour advising me whether
          the defendant can, after he has paid his fine In
          the justice court be char ed with a violation of
          Section 34, of Article 66 %‘i’b, to wit: driving
          while his license Is under suspension."
     Section 2(a) and Section 34 of Article 6687(b)   Vernon's
Civil Statutes read as,follows:
               "Section 2. Drivers must have license
               "(a) No person, except those hereln-
          after expressly exempted, shall drive any
          motor vehicle upon a highway In this State
          unless such person has a valid license as
          an operator, a commercial operator, or a
          chauffeur under the provisions of this Act."

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Hon. Jack H. Holland, page 2 (C- 254)


               "Section 34. Driving while license
                suspended or revoked.
              "Any person whose operator's, commer-
         cial operatorts or chauffeurls,licenseor
         driving privilege as a non-residenthas
         been cancelled, suspended,or revoked as
         provided in this act and who drives any
         motor vehicle upon the highways of this
         state while such license or privilege is
         cancelled, suspended, or revoked is guilty
         of a misdemeanor,and, upon conviction,
         shall be punished by a fine of not less
         than twenty-fivedollars ($25), and not
         more than five hundred dollars ($500)
         and, in addition thereto, there may be
         imposed a sentence of imprisonmentnot to
         exceed six (6) months."
     Article 1, Section 14 of the Constitutionof the State of
Texas provides that:
              "No person, for the same offense,
         shall be twice put in jeopardy of life
         or liberty, nor shall a person be again
         put upon trial for the same offense,
         after a verdict of not guilty in a court
         of competent jurisdiction."
     Article 536 of Vernon's Code of Criminal Procedure pro-
vides that:
              "A former judgment of acquittal or
         conviction In a court of competent jur-
         isdiction shall be a bar to any further
         prosecutionfor the same offense, but
         shall not bar a prosecution for any
         higher grade of offense over which said
         court had no jurisdiction,unless such
         judgment was had upon Indictmentor ln-
         formation, in which case the prosecution
         shall be barred for all grades of the
         offense."
     In Richardson v. State, 109 Tex.Crim. 403, 5 S.W.2d 141,
(1928) the court held that a convictionbefore a justice of
ihk p&ace for drunkenness on a highway was not a bar to a
subsequent Indictmentand prosecution involving the same trans-
action for driving an automoblle while Intoxicated.
                            ._
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-




    Hon. Jack K. Holland,.page 3, (C- 254 )       ,.


          In Mangan v. State, 344,S.W.2d,448,(TexCr$m..lg61),
    defendant was proseouted incorporation court upon a complaint
    for indecent exposure,andwas subsequentlytried on two sepa-
    rate offenses of aggravated assault   in the county court at law.
    Both charges arose out of the same transactionand the defend-
    ant filed a plea'of former conviction wherein he alleged that
    he had been found guilty   in corporation court of the offense
    of Indecent exposure arisjng out of the same transaction for
    which he was on trial in the county court at law.    There the
    court  held that under Article 536, that:
                    I,
                     . ."'. appellant's prosecution In
               corporation court, upon complaint for
               indecent exposure, would not bar his
               prosecution in county court for the
               higher grade offense of aggravated as-
              sault   .”

    The Court In support of this proposition cited the
    cases: Henkel v. State, g Tex.App. 510,
    Caudle v. State, 57 Tex.Crlm. 363, 123
    Carte Iiernandez,126 Tex.Crlm, 303, 71
    Since a violation of Section 2 of Article
    for a fine of not more than $200 It is therefbre'a-misdemeanor
    and is triable in the justice of the peace court under a com-
    plaint and is not brought under an indictmentor information
    as provided for under Article,536 itisour opinion that the
    defendant can, even after he has paid his fine in the justice
    court for driving without a license, be tried for violation
    of Section 34 of Article 6687(b), to wit: driving while his
    license is under suspension.
         In view of the fact that the penalty provided for driving
    while license is suspended Is a fine of not less than $25 nor
    more than $500 and in addition thereto, there may be Imposed
    a sentence of imprisonmentnot to exceed six months, and there-
    fore Is only triable in the county court of law, this would
    not be in violation of Article 536.
         Therefore, the defendant can be charged with the vlola-
    tion of Section 34, Article 6687(b), to wit: driving while
    his license is under suspension.
                             SUMMARY
           Conviction before the justice of the peace
         for driving without a l$cense is not a bar to
         a subsequent charge involving the same motor
         vehicle operation brought on Informationand
         complaint before the county court at law
                                -1224-
Hon. Jack Ii.Holland, Page 4    (C-254   )


     charging the defendant with the violation of
     Section 34 of Article 6687(b), to wit: driving
     while his license is under suspension.
                          Very truly yours,
                          WAGGONER CARR
                          Attorney General of Texas


                                                      ,
                           BY
                                  1B   C' 'J
                                Ass&t&t%or%y    General
ABC:cg
APPROVED:
OPINION COMfUTTEE
W. V. Geppert, Chairman
Norman Suarez
Robert Smith
Malcolm Quick
w. 0. Shu1tz
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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