.      .




                       The Attorney                General of Texas
                                        January   29,    1980
MARK WHITE
Attorney General


                   Honorable Michael D. Meredith                Opinion No. MW-133
                   Moore County Attorney
                   P. 0. Box 634                                Re: Effect  of amendments      to
                   Dumas, Texas 79029                           misdemeanor  probation    law on
                                                                suspenwon of driver’s licenses in
                                                                DWl cases.

                   Dear Mr. Meredith:
                     ,~   :       i ,_^,
                          You request our opinion on’the effect of the new RMikdeme&or Adult
                   Probation and Supervision Law,” Code of Criminal Procedure article        42.13
                   as enacted by Senate Bill 844, Acts 1979, 66th Leg., ch 654, at 1514, on the
                   provisiohs concerning the suspension of a person’s driver% license in Driving
                   While Intoxicated cases. Section 24(a) of article 6687b, V.T.C.S., provides in
                   relevant part:

                              (a) The license of any person shall be automatically
                              suspended upon final conviction     of any of the
                              fOU?@ng offenses: ~~,

                             ,. . . .

                               2.       Driving a motor vehicle while under the
                                        influence of intoxicating liquor or narcotic
                                        drugs.

                          Your question is whether a defendant in a case    charging a violation of
                   article WOE-l, V.T.C.S. (misdemeanor DWI), who          is placed on probation
                   under the provisions of the new article 42.13 of        the Code of Criminal
                   Procedure has had a “final conviction” within the       meaning of the quoted
                   provision.

                        Your concern arises from the legislature% repeal of section 4(a) former
                   Code of Criminal Procedure article 42.13 which provided:

                                 Sec. 4. (a) When a defendant is granted     probation
                              under the terms of this Act, the finding of    guilt does
                              not become final, nor may the court render      judgment
                              thereon, except as provided in Section         6 of this
                              Article [revocation of probation].




                                                  P.    425
Honorable Michael D. Meredith         -   Page TWO (Mw-133)



               tb) The court shall record the fact and date that probation wss
            granted on the docket sheet or in the minutes of the court. The
            court shall also note the period end terms of the probation, and the
            details of the judgment. The court’s records may not reflect a final
            conviction,    however, unless probation     is later    revoked in
            accordance with Section 6 of this Article.

       This section which was repealed, provided the basis on which numerous judicial
 decisions and opinions of this office distinguished misdemeanor probation from felony
probation. See,.e.g., Savant v. State, 535 S.W.2d 190 (Tex. Crim. App. 1976); McIntosh VI
State, 534 S.W.2d 143 (Tex. Crim. App. 1976); Cob v. State, 518 S.W.Zd 829 ITex. Crim.
App. 1975); Ex arte Smith, 493 S.W.2d 959 e---   Tex. Cram. App. 1973); Standifer v. Texas
Department My                   463 S.W.2d 38, 41 (Tex. Civ. App. - Houston t14th Dist.1
1971, no writ); Attorney Gene& Opinions H-ll28 (1978)i M-673 (1970); M-498 (1969); C-685,
C-626   0966); C-515 (1965).

        While section 4 of fccmer article 42.13 expressly provided that there is no judgment
 cc final conviction when a person received misdemeanor probation, the new article 42.13
 repeatedly refers to misdemeanor probation in terms of a “conviction” except in section
,34 which provides for deferred adjudication of guilt. See sections 2(2), 3, 3a, 3c, 3e, 5,
 6c, 7, ,d 8(a) and (b).
                                          .~ -.:.‘~.    _~. F..~   .    _I,

      Section 3 of new article 42.13 provides that the judges of’thecourts      of this state
having original jurisdiction of criminal actions:
                                    \:
            . . . shall have the ‘power, after conviction nor a plea of guilty or
            nolo contendere for any crime ‘or offense, where the punishment
            assessed against the defendant is by confinement in jail or by fine
            or by both such fine or imprisonment, to suspend the imposition of
            the sentence and may place the defendant on probation . . . .

      Section   3a provides    that   a jury   may recommend   probation   “when there   is a
conviction.*’

      In Attorney General Opinion M-1057 (19721,’the question was posed as to whether sn
operator’s license was subject to automatic suspension when the person was convicted of
felony DWI, but imposition of sentence is suspended and he is placed on probation under
the provisions of article 42.12 of the Code of Criminal Procedure. .That opinion said:

               In construing the term ‘final conviction’ as used in Article
            6687(b), Section 24 the courts have heid that ‘final conviction’ is a
            judgment of conviction from which a motorist has exhausted hi
            right to appeaL Hays v. Texas Department of Public Safety, 301
            S.W.2d 276 (Tex. Civ. App. 1957); Allen v. Texas Department of
                            411 S.W.2d 644 (Tex. Civ. App. 1966). A conviction
            ==-f
            and grant o probation under Article 42.12, is a final judgment
            which is appealable even though sentence is probated, Gossett v.




                                          P.   426
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    Honorable Michael D. Meredith     -   Page Three     (EN-1331



               e,      252 S.W.2d 59, 162 Tex. Crim. App. 52 (1953); Pitts v. State,
               442 S.W.2d 389, 390 (Tex. Crim. 1969). The fact that the judgment
               may be subject to being set aside as provided in Section 7 of the
               Adult Probation Act, makes it no less a final conviction as any
               other conviction stiject to appeal, habeas corpus, executive pardon
               or other collateral relief.

                  In view of the construction placed on ‘final conviction’ by the
               state courts in the a        and Allen cases and in an attempt to
               harmonize if possible Article 668mSection       24, and Article 42.12,
               in such a way as to give effect to each enactment, and avoid
               conflicts between them 55 Tex. Jur.2d ‘Statutes’ Section 186, it
               would appear that ‘final conviction’ as that term is used therein is a
               judgment of conviction from which the person convicted and
               probated under the terms of the Adult Probation Act has exhausted
               his right to appeal.

         Section 8(b) of new article 42.13 provides in part as follows:

               . . . The right of the probationer to appeal to the Court of Criminal
                Appeals for a review of the trial and conviction as provided by law
               shall be accorded the ‘probationer at the time the defendant is
               placed cm probation. . . .

          See Steffen v. State, 525 S.W.2d 162 flex. Crim. App. 1975); B&on v. State, 511
    S.W.2d8     (Tex. Crim. App. 1974); Fitzpatrick v. State, 458 S.W.2d 924 (Tex. Crim. App.
    1970); and Pitts v. State, ,442 S.W.2d 389 (Tex. Crim. App. 1969); concerning application of
    this same provisi,on in section 8 of articl, 42.12
                  ‘:.
          Since the new article 42.13 is clearly designed to parallel theprovisions  of article
    42.12, and since section 4 of former article 42.13 has been repealed, we believe that
    Attorney General Opinion M-1057 @972), and the cases on which it was based require us to
    answer your question in the same way: A “final conviction” as that term is used in section
    24 of article 6687(b), V.T.C.S., is a judgment of conviction from which the defendant has
    exhausted his right to appeal including the conviction of a person whose sentence has been
    probated under the terms of sections 3 or 3a of the new Misdemeanor Adult Probation and
    Supervision Law.

          In reference to the effect of a conviction becoming final and the automatic nature
    of section 24 of article 66874 V.T.C.S., this office said in Attorney General Opinion H-
    1053 0977):

               [IIf the in-state ‘conviction becomes final, the suspension is
               automatic,   whether a report of the conviction is sent to the
               Department of Public Safety or not, whether or not the judgment
               of conviction specifically provides for the suspension, and whether




                                                 p.    427
Honorable Michael D. Meredith      -   Page Pour     (NW-133)



           or not the defendant actually surrenders his license to the court.
           No action by the court, the jury, or the Department of Public
           Safety is necessary to bring the suspension into effect.  Marley v.
           w,      394 S.W.2d 516 (Tex. Crim. App. 1965); Standifer v. Texas  exas
                                                                   Loo.
                                                                     -
           Dept. of Public Safety, 463 S.W.2d 38 (Tex. Civ. App. - Houston
           D4th Dist.1 1971, no writ); Texas Dept. of Public Safety v. Preble,
                                                                        ‘reble,
           398 S.W.2d 785 (Tex. Civ. App. - Houston 1966, no writ); Gaddy
                                                                        iddy v.
                                            380 S.W.2d 783 (Tex. Civ. App.
                                                                        &I. -
           Eastland 1964, no writ); Hays v. Dept. of Public Safety, 301 S.W.2d
           276 (Tex. Civ. App. - Eastland 1957, writ dism’d).

Even though probation imposed under sections 3 and 3a of article 42.13 requires suspension
of the individual’s driver’s license, section 3d establishes a different procedure for
probation. It provides in part:

               Section 3d (a) When in its opinion the best interest of society
            and the defendant will be served, the court may, after receiving a
            plea of guilty or a plea of nolo contendere, hearing the evidence,
             and finding that it substantiates the defendant’s guilt, defer further
            proceedings without entering en adjudication of guilt and place
            the defendant on probation on reasonable terms and conditions as
            the court may require and for a period as the court may subscribe
            not to ‘exceed the maximum period of impriscnment prescribed for
            the offense for which defendant is charged. However, upon written
            motion of the defendant requesting final adjudication filed within
            30 days after entering such plea and the deferment of adjudication,
            the court shall proceed .to final adjudication as in alI other cases.       :   /

              (b) On violation of a condition or probation imposed under
            Subsection (a) of this section, the defendant may be arrested and
            detained as provided in Section 6 of this article. The defendant is
            entitled to a hearing limited to a determination    by the court of
            whether it proceeds with an adjudication of guilty on the original
            charge. No appeal may be taken from this determination.     After an
            adjudication   of guilt, all proceedings, including assessment of
            punishment, pronouncement of sentence, granting of probation, and
            defendant’s appeal continue as if the adjudication of guilt had not
            been deferred.

      If a defendant in a misdemeanor case pleads guilty or nolo contendere and receives
probation from the court under section 3d(a), there would be~cconviction”          within
the meaning of that term as used in section 24(a) of article 6687b, V.T.C.S., and there
would be no automatic suspension of the person’s driver’s license.

       Section 3d of new article 42.13 is the same as that in section 3d of article 42.12 in all
pertinent respects.    In Crutchfield v. State, 560 S.W.2d 685 (Tex. Crim. App. 1978),
defendant was placed on probation under section 3d(a) of article 42.12, which probation




                                          p.   428
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        Honorable Michael D. Meredith      -   Page Five       (Mw-133)



        was revoked for violation of probationary conditions.        In this case the court noted the
        similarity of the language of section 3d(a) and (b) of article 42.12 to section 4.12(a) and (b)
        of article 4476-15, V.T.C.S., the Controlled Substances Act. The court quoted Richie v.
        State, 542 S.W.2d 422, 424 (Tex. Crim. App. 1976) which construed section 4.12(a)and
        asows:

                    Reading Subsections (a) and (b) together, it is apparent that no
                    judgment is to be entered at the time a conditional discharge is
                    granted but one must be entered at the time the conditional
                     discharge is revoked.   In this regard the conditional discharge
                    procedures under Sec. 4.12, supra, are no different      than the
                    misdemeanor probation procedures       under Art. 42.13, Vernon’s
                    AM.C.C.P.

        See also George v. State, 557 S.W.2d 787 (Tex. Crim. App. 1977) (order granting
        conditional discharge under section 4.12 of article 4476-15, V.T.C.S., not a conviction).
        Since there is no conviction nor a judgment evidencig        a conviction when a person is
        placed on probation under section 3d of new article 42.13, the effect of probation under
        this provision is the same as it was under the previous misdemeanor probation provision
        and there is no “final conviction” for purposes of section 24(a) of article 66874 V.T.C.S.

                                               SUMMARY

                       A person convicted of misdemeanor DWI and whose sentence is
                    probated under the terms of section 3 or section 3a of the
                    Misdemeanor Adult Probation and Supervision Law, article 42.13,
                    Cods of Criminal Procedure, enacted by Senate Bill 844, Acts 1979,
                    66th Legislature, ch. 654, at 1514, is subject to having his operator’s
                    license automatically suspended under section 24, article 6687(b),
                    V.T.C.S.

                       A person who receives probation under section 3d of article
                    42.13, Code of Criminal Procedure, which provides for conditional
                    discharge on deferral of adjudication, is not stiject to having his
                    operator% license automatically suspended.

                                                   vewiYlkx*


                                                        MARK       WHITE
                                                        Attorney   General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        TED L. HARTLEY
        Executive Assistant Attorney General




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Honorable Michael D. Meredith   -   Page Six     (MN-133)



Prepared by William G Reid
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
Susan Garrison
William G Reid




                                      p.   430
