                                 The Attorrwy                 General            of Texas
                                                      Decsmbcr      13.   1984
JIM MATTOX
Attorney General
    .


Supretnr cowl sullaq           HonorAble ChArlc6 IhrAn6                             Opinion    No.    ~~-250
P. 0. Soa 12546                chairmsn
Aurtln. lx. 76711.2548         House Admiaistrnti~x~    Conanittce                  Re:  Whether the     TEXAS Department
51v475.2561                    TEXAS House of Rep n?sentAtives                      of Public  Snfety     nay probate   the
Telcl Sltm74.1~7
                               P. 0. Box 2910                                       6U6p6,,6iOtl Of A driver’s     liCeUSe
Tal4copier 5121475-0255
                               AuStin, Tt?XAS     18149                             of   A perAott   who ha6 been      con-
                                                                                    victed    of driving    while  lntoxi-
714 Jackson.Suite 7W                                                                CAtSd AS 6 result        Of A breath
Dcllar. 7X. 752024505                                                               tC6t r6fUSAl
2141742.5944

                               DeAr    Representntivc      Evsne:
4824Alberta Are.. Sutle ((10
El Paso. TX. 7-2793                   You hAve Askc!d two questions                     Concerning      the   SuPpAnSiOn      of    A
915i533.3464                   person’s    driver’s       license      in connection         with   PreAeCUtiOn      fcr   driving
                               while    intoxicAtcd.          You first         Ask whether       the TeXAA Department            of
 001Taxas. Suite 700           Public    SAfety     [her~cinafter        DPS] May suspend the license               of A person
Houston. TX. 77002.3111        convicted    of drivjr:g       vhlle     intoxicated       [hereinAfter      DUI]   And plAced on
713122X1655                    probation     followiu#l      such conviction           if  the fndivfdual        has been found
                               on Appeal       to    h6m      refused A breath              teAt.      Such proceedings          Are
                               AepArAte      And     di:rtinct       from      crlminsl      proceeding6       under     the     DWI
806 Broadway.Suita 312
                               StAtUteA.       Secondly.        you ARk vhether            the depertment        r&y suspend        A
Lubbock. 7X. 794014479
6Q6l747.5235                   driver’s    &zense       tthen A person        hA6 been convicted         of DUI by A jury        And
                               such A jury       recooocndA        that    his    license    not be suspended,         despite     An
                               Affirmative      f%ndinS of A brecrth test refussl.
 4308 N. Twtth. Suit. 6
 MCAIW. 7x. 7wo1.1665
 50662.4547                           Article      67011-5.      V.T.C.S.,     govern6     the Adoini6trAtfon           of breath
                               test6    And the SUtl~~eUSiOn Of liC6nSe6                for rSfUAAl6       t0 tAke the s(Lme.
                               SeCtiOU Z(b)         retpire6       that    An Arresting         officer       AdViSe     A person
 200 MaIn Plaza. wc4 4ca       Arrested     for WI      thrt    refusal    to submit to t~he test           my    raut1.t   In the
 San Antonlo. TX. 752052797
                               driver’6      license       being     “AUtOCUttiCAlly       suspended      for    90 days . . .
 512!2254191
                               whether     or not L!1@?person           16 subsequently        prosecuted       AA A result       of
                               the Arrest.”         Upon refusA1.        ot A request       to submit to A breath             test,
 An Equ*tOpportuniwl           the Arresting        officer      Is required      by section 2(E)        to imm6diAtely        make
 *ttirm*tiw Actlon EmPloy*r    A written      report     t:o the DPS.       Upon receipt       of the report        the director
                               of DFS is reqUird             to suspend      the perzlon’s      1icenAe     for   90 dAyS after
                               the perAon        16 notified       of his     right     to An AdministrAtive          hearing     on
                               the bresth       test t,efusal.        V.T.C.S.     Art.   67011-S.     12(f).

                                       The person wko refuses     the brcrth   test nnd is notified    by the DPS
                                that   hjs license ~111 be suspended       has A right   to request   an adminis-
                                trative   hearing.   At these hearings      the court is required    to order the
                                6Usp6nSiOn of the license       If   it finds   thrt  there  was  probsble   cAus6
                                for the DWI arrerit.   that  the person WAS given An opportunity         te submit



                                                                     P.    1117
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    Honorsbls     ChArleA         gVAn6 -   PASC 2    (311-250)




    to A brerth     test.    And thAt      he refused.     Id.    SZ(f).      Section    2(f)
    provide6  further     thAt   these    AdmiAiAtrAtlVehcAringS           on breeth     test
    refuAAls ars required      to be “set in the 6Ame m6nnAr AS 6 hesrlng              under
    Section 22(a)”     of   Article     6’587b. V.T.C.S.       Thur,     when   the DPS is
    informed   by   A driver       ChAt    the  driver    desires      An   AdministrAtive
    heAring.  the DPS is required         to set such csse      in ACCOrdAnC6 with         the
    provisions       of    section    22(~).   article     6687b.

           Section        22(~)    vest6 jurlsdictlon        of these Administrative  hrnringr
    in   municlpsl        uyors      And judges,    or    justices   of the peecc And provide6
    in   part:

                          Sec.  22.    (A) . . .       Such hearing        6hAll    be had
                   net less      thAn ten (10) dAy6 After              nOtifiC6tiOn        to
                   the     licensee        or   operator        under      Any    of      the    ,
                   provisions       of thi:a section.           And upon charge6           in
                   writing.       A copy of which Shall              be given     to said
                   operator      or 1icen:we       not less       than ten (10)         days
                   beforc     said    hSAril@;,    except     AS   otherwise     provided
                   by this       6ubsectioP.        For the purpose           of heAring
                   such csses,       jurisdiction        IA vested      in the mayor of
                   the    city.     or    judge    of the policr           court,      or    A
                   Justice       of   the    Peace     in    the    county     where      the
                   operator      or licensee      resides      . . . It shall        be the
                   duty of the court            to set     the matter        fur heerlng
                   upon      ten     (IO)     days’ written            notice     to      the
                   Department       . . . Ilotice       by registered        mail to the
                   Address      ShOWI on th,e licsnse          of the liCenSe6        shall
                   constitute         rervilrt?    for      the     purpose      of     this
                    section.      . . .

            Article      670114,      section        Z(f).      incorporates         Article        6687b.
     section    22(~).    only for the purpose of determining                   the msnner in vhich
     breAth     t66t     refusal    CAsea     6re     “Set.”        Article       67011-S       does    not
     iacorporste       other    provtolons      of      article      6687b.      portions       of   vhich
     provide     for the probAtion       elf license         suspension,       which ve believe          do
     not    hAve Anything        to do with         the    “setting”       of    the   AdminiStrStivA
     hearing.       See    V.T.C.S.     Art,.    6607b.        522(e)     (Authority        t0     prObAte
     1icenAe     rcv~tion        or 6U6pl!Il6iO,,).        There     iA no provision           in either
     Article     67011-5   or 6687b.     W!(A)      which provide6          for the probation         of a
     license     suspension    for the failure          to submit to A brerrth test.

            Attorney      General     Opinion     II-1201     (1978).     concluded     thst   Article
     67011-S     fncorporAted       the pr,JbAtfon        PrOViAiOtlA      of article      6687b.      We
     believe     that this      opinion    m:l6constn~ed        the StAtutea       And it is hereby
     overruled.        In 1983. the l~?l!islature            amended article        67011-S    to make
     it   clear    that suspension        of a driver’s          lice@se    for refusal      to take e
     brearh     test    i6 An entirely          Separate      matter     from the penoltles          And
     procedures       of    Article     66i)‘rb    (a.         uai~ning     that    suspension     will
     aUtOmtiCAlly         take   place   rl?l;ardless      of “whether       or not the person         is
     subsequently        prosecuted      AS a      result      of    the   arrest”     section    Z(b);




                                                     p.   1118                                                .
deletion    of pertiwnt     part of old leccion Z requiring         telnrtetewnt    of
suspended     llccnee   when pcrron found “not guilty”         of DUI).     Thun. the
auapenaion      at iesue here ia apparently      intended     LO be a purely civil
penalty.       Attorney   General Opinion    U-1201 z         have been incorrect
under the old lansuaugc; It i# eY)re clearly         incorrect    under the rwnded
languege.        UC conclude,     in anaver    to your       questlone,      char  the
suspcnaion      of a driver’s    llcenae  for failure      co submit      to l hrerth
true may not be probated notvit:hatanding         the fact that a conviction         in
a different       court of a DUI offenre     may have resulted         in a probated
oeutence     or the fact that t”llt jury      follovinng    a DUI coovlctioc       haa
tecolmaended that the liernee        wt bo ewpended.



                 The suspension      of        a     driver’s          license    for
             failure   to rubnit     to   l        brenth       test    mey not    be
             probated.




                                                       .Irn            MATTOX
                                                       Attorney         General of Texas

TOM GREEN
First   Assirtant   Attorney   Cenc!ral

DAVID R. RICHARDS
Executive A#siMant Attorney         General

RICK CILPIN
Cheirwn.     Opinion   Conmilttec

Prepared    by Rick Cilpfn
Assistent    Attorney  General

UPROVED:
OPINIONCOMMITTEE

Rick Cilpin.  Chairman
Colin Cerl
Susan Garrison.
Tony cui110ry
 Jim Hoellinger
 Jennifer  Riggs
 Nanry Sutton




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