                                                 R-77




                                Ausrm.     TEXAS

PRlCE   DANIEL                 .March 20, 1947
ATTORSEY ‘ESIERAL


        Ron.--H~r-Oa~rlson, ~JP;,'Direct&
                                  .--__
        Texas Department of Public Safety
        Driver's License Division ~,
        Camp-Mb-ry
        AustinrTexss         Opinion' No. v-91
                              Re:   Authority of the highway
                                    ,Department to require the
                                    surrender of driver's li-
                                    cense; suffl.ciencyof de-
        Dear Sir:                   mend for such license.
                    Your opinion requws,tIs as folloWs:
                   "A licensee has been finally convict-'
              wd of aggravated assault tiponthe person by
              means of a motor vehicle. Section 24 of
              Article 6687b, passed by the Forty-seventh
              Legislature, provides for the automatic sua-
              pension of the operator's, commercial.opera-
              tor's or chauffeur's license upon a final
              conviction of this.offense.
                    "Sub-section a, 3ectFon 25, of this
               same Article authorizes the Court in which
               conviction is had to require the surrender
               of all opwretor's, commercial operator's,
               and chauffeur's license then held by the
               person so convicted.
                     "Our Quwstlon No. 1 is: Whether or
               not the Texas Department of Public Safety
               has the authority under Section 26 of Art-
               icle 6687b,  to require the licensee to sur-
               render his license certificate when the Court
               of conviction falls to order the surrender of
               the operator's, commercial operator's or chauf-
               feur's license. Question No. 2. Would notlfi-
               catlon made throug‘nformal suspension order to
               the licensee by regular U.S. mail constitute
               service under Sectlon 26 and make the llcensww
               subject to the penalty provided in paragraph 4
               of, Section 32, if he falls to comply?"
         .

Hon. Homer Garrison, Jr. - Page 2, V-91


          The Legislature, in cnwatlng the Department of
Public Safety, prescribed that it be generally responsi-
ble for the enforcement of laws protecting the public
safety, for the prevention and detection of crime, and
that it malntaln principal office and headquarters in
the City of Austin, where all of Its records sholl be
       Sew Title 70 Ch. 5 Vernon's Civil Statutes of
ggti, and In partidular Akclw    4413. (1).
           The Department's duties are peculiarly deslgn-
wd end conceived in connection with the enforcement of
our traffic safety laws of which the driver's llcwnsw
law is sn important part. The driver's license law, Ar-
ticle 6687b, xontemplates that the Department of PublLc
Safety shall be generally responsible for the administra-
tion and enforcement of its provisions. Elaborate pro-
visions are made for both the qualification of drivers
and the issuance of evidence of such~qualifications in
the form of licenses by the Department. The Act obvl-
ously contemplates that the Department effect the with-
drawal of licenses from those not entitled thereto and
the Act should be so construed as to accomplish that
purpose, whether the licenses were suspended at the
hearing before the.board or upon an automatic suspwn-
sion by virtue of a convlctlon of any of the offenses
enumerated under Section 24 of Article 6687b, V.C.S.,
which embraces aggravated assault upon the person by
means of e motor vehicle.
             Section 24 of Article 6687b, V.C.S., reads:
          "AUTOMATIC SUSPENSION OF LICENSES.
     (a) The 1lcwnsw of any person shell be
     automatically suspended upon final con-
     viction of .any of the following.offwnsws:
     ii+

          “5.  A convlctlon upon a charge of
     aggravated assault upon the person by means
     of motor vehicle, as provided by lsw. l * *"
          The word "automatic" has been defined by Funk
and Waqnalls New Standard Dictionary of the English
language as "acting as an automaton, or from forces in-
herent or placed within itself; self moving or self rwg-
ulating under necessary law". The Court in Cleveland
Target Company vs. Empire Target Co., 97 Fed. 44. said:
'In common psrlance, 'automatic' means self-acting."
Hon. Homer Garrison, Jr. - Page 3, V-91

It therefore follows that on a final conviction of aggra-
vated assault upon the person by means of a motor ve-
hicle the license is Immediately suspended under Sub-
section 5 of Section 24 by force of the law without fur-
ther act by anyone.
          Section 25 provides:
          "(a) Whenever any person is convicted'
     of any offense for which this Act makes
     automatic the suspwnsfon of the operator's,
     commercial operatorls, or chauffeur's li-
     cense of such person, the courtln which
     such conviction is had shall requlrw the
     surrender to it of all opwrstors', com-
     mercial operators', and chauffeurs' li-
     censes then held by the pwrson~so con-
     victed and the clerk of said court shall
     thereupon forward the same together with
     a record of such conviction to the Depart-:
     mwnt, within ten (10) days from the date of
     the conviction.
          "(b) Every court having jurisdiction
     over offenses committed under this Act, or
     any other Acts of this Ststw regulating the
     operation of motor vehfclws on highways, shall
     forward to the Department a record of the con-
     viction of any person In said court for a vio-
     lation of any said laws, and may recommend the
     suspension of the operator's, commercial opwra-
     tar's, or chauffeur% license of the person so
     convicted, as provided in Section 22 of this
     Act.
          v(c) For the purpose of this Act, the
     term 'conviction' shall mean a final convic-
     tion. 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 wqulvalent to a conviction.
          "Provided, however, that in case of con-
     viction for any of the offenses enumwrsted in
     paragraph (a) of Section 24 of this Act, and
     the sentence of the court having been suspend-
     ed as provided in the Statutes, such suspended
     sentence shall not mitigate against the suspen-
     sion of the operator's,commwrclal operator's
Hon. Homer Garrison, Jr. - Page 4, V-91


     or chauffeur's license of the person con-
     victed."
          SectIon 25 directs the court to report to
the Department all convictions of violations ,ofall
laws regulating the operation of motor vehicles on
the highways. The purpose of these requirements is
to furnish the foundation for appropriate action by
the Department. In the Instances where suspension
is automatic the law recognizes that no further hwar-
ing is required for the procedural "due process of
law," because the person accused In the criminal ac-
tion is bound to know, as a matter of law, that an
automatic suspension of his driver's license ~111 be
a consequence of his conviction. The right to the
driver's license Is tried as a part of the same suit.
The court is directed to Immwdiatwly take up the ll-
cwnsw and the clerk of said court to forward same to-
gether with a record of such conviction to the Depart-
ment'wlthin ten (10) days from the dete of the convlc-
tion. It Is incumbent upon the Court to require the
surrender of the license and the clerk to forward same
with the record of conviction to the Department. The
court's failure, however, to require the surrwnd.wrof
the license does not affect its suspension.
          Section 26 of Article 6687b provides:
          "The Department, upon suspending or
     revoking a license shall requlrw thst such
     license shall be surrendered to and retain-
     ed by the Department except thst at the end
     of the period of suspension of such license,
     the license so surrendered shall be returned
     to the llcwnsww."
          In our opinlon Section 26 deals only with sus-
pension or revocations by the Depsrtmwnt itself and not
in cases where the suspending or revoking is brought a-
bout automatically by a conviction as enumerated In Swc-
tion 24.
          Section 32 of Article 6687b provides:
          "It shall be unlawful for any person
     to commit any of the following acts: l * l
     (4) To fall to refuse to surrender to the
     Department on demand any operator's,com-
     mwrclal operator's or chauffeur's license
.!


     Hon. Homer Garrison, Jr.,'- Page 5, V-91


          which has been suspended, concelled or rw-
          vokwd as provided by lsw. l l *'
               We view this section as the Department's auth-
     ority to demsnd any operator's, commercial operator's
     or chauffeur's license which has been suspended, wither
     by the Department after hearing or by a final conviction
     upon a charge of aggrsvatwd assault upon the person by
     means of a motor vehicle under Subsection 5 of Section
     24, suprs.
               You are therefore, advised in answer to your
     first question that the Department does not have the
     authority under Section 26 but does have under Section
     32 (4) to require the licensee to surrender his license
     upon a final conviction of aggravated asssult by means
     of a motor vehiclw,.whwrw the court of conviction fails
     to require its surrender.
               It is hour opinion that sny customary form of
     communication written or verbs1 which is made by the
     Department and received by the licensee, that Is cal-
     culated to cIwarly inaicate a demand Is made under the
     authority of Section 32 (4) is sufficiwnt. We also think
     that evidence indicating a letter has been so forwarded
     creates w presumption that It has been received by the
     addressee. It should be pointed out In this connection
     that many defenses could be interposed to such a demand
     by mail. !Phebest procedure, therefore,,on which to
     predicate a prosecution for failure or refusal to SUP-
     render the license to the Department would be to per-
     sonally serve the licensee with a written demand.
                            SUMMARY

               The Department of Public Ssfwty has
          authority under Sec. 32 (4) of Art. 668i’b
          V.C.S., (and not under Section 26 thereof I
          to require the licensee to surrender his
          license upon conviction of the offense of
          aggravated assault upon the person by means
          of motor vehicle where the court fails to
          require surrender of the license. A letter
          by the Department properly sddrwsswd, stamp-
          ed and deposited in the U.S. mall, dlrected
          to the llcensww, demanding the surrender of
Hon. Homer Garrison, Jr. - Page 6, V-91


     his suspended license is a sufficient
     "demand" under parsgraph 4 of 3wction
     32 of Article 6687b, V.C.3. if rwcwlv-
     wd by the licensee.
                       Yours very truly
                  ATTORNEY GENERAL OF TEXAS


                  BY
                              Robert A. Hsli
                                   Assistant

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