                                                                        .




                              Awwm~~     TEXAS
PRICE   DANIEL
ATTORNEY
    GENERAL                 January 29, 1948

          Hon. Geo. H. Sheppard,
          Comptroller of Public Accounts
          Austin, Texas
                                  Opinion No. V-490
                                  Re:   Whether the offense of drlv-
                                        ing while Intoxicated under
                                        Art. 802b, V.P.C., is a re-
                                        ducible or non-reducible
                                        case with relation to the
                                        fees to be paid sheriffs and
                                        other officers.
          Dear Sir:
                      We refer to your recent request in which you
          submitted the following question:
                      "Is the offense 'driving while in-
                  toxicated' as per Article 802b, Vernon's
                  Penal Code, a reducible or a non-reduci-
                  ble case in regard to payment of fees,
                  by the state to sheriffs and other offi-
                  cers in felony casesTn
                      Article 47, V.P.C. is, in part, as follows:
                       "An offense which may--not must--be
                   punishable by death or confinement in the
                   penitentiary is a.felony; every other of-
                 " fense is a misdemeanor."
                      Article 55, C.C.P., provides that:
                      "Upon the trial of a felony case,
                  the court shall hear and determine the
                  case as to any grade of offense included
                  in the indictment, whether the proof shows
                  a felony or a misdemeanor;"
                      The terms "reducible" and "non-reducible"
          cases have been defined by this Department in Opinion   NO.
          o-7471, as follows:
Hon. Geo. H. Sheppard - Page 2    (V-490)


            'Where a person is charged with the
        commission of an offense of the grade of
        felony, whether by complaint filed in an
        examining court or by indictment in the
        District Court, and under the law the
        only punishment which may be assessed is
        death or confinement in the State peni-
        tentiary, such an offense is a "non-redu-
        cible" one.
            "A 'reducible case' is also one of
        the grade of felony, but under the law
        and the indictment the defendant may be
        found guilty of a felony and sentenced to
        death or to serve a term in the State pen-
        itentiary, or may be found guilty of a
        misdemeanor. For example, murder. A per-
        son indicted for murder, a felony, may be
        found guilty of.an aggravated assault, a
        misdemeanor."
            There is also another class of "reducible
cases," which embraces all felony cases where the law
fixes the punishment at confinement in the State peni-
tentiary or a fine or imprisonment In the county jail,
or by both such fine and imprisonment in the county
jail. In such cases if the defendant upon conviction
is assessed a fine or imprisonment in jail, or both
such fine and imprisonment In jail, he has been con-
victed of a felony -- not a misdemeanor.
              Prior to 1941 Article 802, .V.P.C., provided
as follows:
             'IAnyperson who drives or operates an
        automobile or any motor vehicle upon any
        ~street or alley or any other place within
        the limits of any Incorporated city, town,
        or village or upon any public road or high-
        way in this State while such person Is in-
        toxicated, shall be confined in the penl-
        tentiary for not more than two (2) years,
        or be confined in jail for not less than
        thirty (30) days nor more than ninety (90)
        days or fined not less than Fifty Dollars
         ($5d nor more than Flve.Hundred Dollars
         ($500) or be punished by both such fine and
    .)
-            .
                              c          ”
                 Hon. Geo. H. Sheppard - Page 3   (V-490)


                        imprisonment in jail."
                             It is ap arent upon reading the above, that
                 prior to the year 192:
                                      1 the offense of "driving while in-
                 toxicated" was a felony and a reducible case.
                             However, this Act was amended in 1941 and
                 now reads as follows:
                            *Art. 802. Driver intoxicated or un-
                        der influence of Intoxicating liquor.
                            "Any person who drives or operates an
                        automobile or any other motor vehicle upon
                        any public road or highway in this State,
                        or upon any street or alley within the
                        limits of an incorporated city, town or
                        village, while such person is intoxicated
                        or under the influence of intoxicating
                        liquor, shall be guilty of a misdemeanor,
                        and upon conviction, shall be punished by
                        confinement in the County Jail for not less
                        than ten (10) days nor more than two (2)
                        years, or by a fine of not less than Fifty
                        Dollars ($50) nor more than Five Hundred
                        Dollars ($500), or by both such fine and
                        imprisonment." '-
                             Article 802b, which was also enacted in 191,
                 is as follows:
                            "Art. 802b. Subsequent offense of driv-
         .              ing while Intoxicated; felony.
                            "Any person who has been convicted of
                        the misdemeanor offense of driving or oper-
                        ating an automobile or other motor vehicle
                        upon any public road or highway in this
                        State or upon any street or alley within an
                        incorporated city, town or viilage, while
                        intoxicated or under the influence of intox-
                        icating liquor, and who shall thereafter
                        drive or operate an automobile or other motor
                        vehicle upon any public road or highway in
                        this State or upon any street or alley with-
                        in the limits of an Incorporated city, town
                        or village, while such person Is intoxicated
                        or under the influence of Intoxicating liq-
                        uor, shall be guilty of a felony and upon
Hon. Geo. H. Sheppard - Page 4    (V-490)


        conviction be punished by confinement
        in the penitentiary for any term of
        years not less than one (1) nor more
        than five (5).”
            Under the present law it is obvious that
before the offense of "driving while iintoxicated"may
be a felony, there must have been a prior conviction
for the same offense. Also, the indictment must charge
a prior conviction, together with a subsequent offense
of driving while intoxicated before the District Court
could acquire jurisdiction of the case, since it has no
jurisdiction of misdemeanor cases. If, however, the
indictment alleged a prior conviction and the proof
would not sustain that part of the Indictment, the Dls-
trict Court would still retain jurisdiction of the case,
although the defendant could be convicted only of a mis-
demeanor. Article 55, C.C.P.; Robles v. State, 41 S.W.
620; Hughes v. State, 152 S.W. 912.
            Therefore, by virtue of the foregoing, It
is the opinion of this Department that the offense of
"driving while intoxicated" under Article 802b, Vernon's
Penal Code, is a reducible case in regard to payment of
fees to sheriffs and other officers in felony cases.
                        SUMMARY
            The offense of "driving while in-
        toxicated" under Article 802b, V.P.C.,
        is a reducible case in regard to pay-
        ment of fees to sheriffs and other
        officers in felony cases.
                            Yours very truly,

APPROVED:              .ATTORNFX GENERAL OF TEXAS



                        BY&&
                            Bruce Allen
                            Assistant
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