                                 Y     GENERAL




Honorable Homer Garrison, Jr.    Opinion No. C-685
Director
Texas Department of Public       Re:    Suspension of driver's
  Safety                                license of defendants
Austin, Texas                           after their conviction
                                        of the misdemeanor of-
                                        fense of DWI and being
Dear Mr. Garrison:                      placed on probation.
        In an opinion request of this office you pose two
questions concerning Article 42.13, Vernon's Code of Crimi-
nal Procedure of Texas, commonly referred to as the Misde-
meanor Probation Law, as it relates to the sus ension of
drivers' licenses aa provided for by Article 6 8 87b, Section
24, Vernon's Civil Statutes. Said Section 24 provides as
follows:
           "(a) The license of any person shall
        be automatically suspended upon final con-
        viction of any of the following offenses:
           nl. . . .
           "2. Driving a motor vehicle while under
        the influence of intoxicating liquor or
        narcotic drugs. . . ."
        Specifically, the questions you pose are as follows:
           "Would a conviction be considered 'fi-
        nal' under the following circumstances:
           "1. Where the defendant is found guilty
        of first offense DWI, fined and required to
        serve a jail sentence but the suspension of
        the driver's license is probated; and
           "2. Where the defendant is found guilty
        of first offense DWI, required to pay a fine,
        but the jail sentence and a suspension of the
        license is probated."
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Honorable Homer Garrison, Jr., page 2 (c-685)


        In Attorney General's Opinion NO. c-626 (1966 , this
office stated that it was our opinion that a defendanl who
was convicted of the misdemeanor offense of driving while
intoxicated and placed on probation in accordance with the
terms of Article 42.13 does not automatically lose his driv-
er's license, unless and until his probation is revoked, and
the court enters judgment on the finding of guilty in ac-
cordance with the terms of Article 42.13. We reaffirm that
opinion. When a defendant is placed on probation under the
terms of the Misdemeanor Probation Law, there is no "final
;;z;;ction" as that term is used in Section 24 of Article
     . Therefore, we answer your second question in the
negative.
        In both of the questions presented by you, you state
that the court has granted a probation of the suspension of
the driver's license. It is our opinion that the action of
a court in either granting or denying probation of a driver's
license is a nullity, since it is our opinion that once a
defendant is placed on probation, as a matter of law his
driver's license may not be suspended, since there is no
final conviction unless and until the probation is revoked.
        We further note that in the first question presented
by you, you state that the defendant, after being placed on
probation, is required to serve a jail sentence. It will be
noted that under the terms of this Article there is no au-
thorization for a court to require a defendant who has been
placed on probation to serve a jail sentence. In addition,
Article 42.13, Section 2(2) states as follows:
           "'Probation' means the release by a court
        under terms and for a period specified by the
        court of a defendant who has been found guilty
        of a misdemeanor;"
        We interpret this definition of "probation" to mean
that any time a defendant is placed on probation in 'accord-
ance with Article 42.13 he mustbe released,from custody by
the court.
        In reference to your first question you state that
the defendant was required to serve the jail sentence. If
the court did not probate the jail sentence, but only pro-
bated the suspension of the defendant's driver's license,
which was a nullity, there was a final conviction in the
absence of an appeal. However, if the court actually pro-
bated the jail sentence and then erroneously required the
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Honorable Homer Garrison, Jr., page 3 (c-685)


defendant to serve the jail sentence, then there was not a
final conviction, until and unless the probation is revoked.
                           SUMMARY
             Where a defendant is found guilty of first
         offense DWI and a jail sentence imposed, but
         the jail sentence is probated, there is no fi-
         nal conviction until and unless the probation
         is revoked. If the court does not probate the
         jail sentence, but only probates the suspension
         of the defendant's driver's license, such pur-
         ported probation was a nullity and there was a
         final conviction in absence of an appeal. How-
         aver, if the court actually probated the jail
         sentence and then erroneously required the de-
         fendant to serve the jail sentence there was
         not a final conviction unless and until the pro-
         bation is revoked.
                               Yours very truly,
                              WAGGONER CARR
                              Attorney General of Texas


                              By:


SLK:pw:br
APPROVED:
OPIMON    COMMITTEE
W. V. Geppert, Chairman
Douglas Chilton
W. 0. Shultz
Gilbert J. Pena
Lonny F. Zwiener
APPROVED FOR THE ATTORNEY GENERAL
By: T, B. Wright


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