                      The Attorney               General of Texas
                                          July   8,        1980
MARK WHITE
Attorney General


                   Honorable James B. Adams, Director              Opinion No. MW-2o 4
                   Texas Department of Public Safety
                   5805 N. Lamar Blvd.                             Re: Whether Attorney   General
                   Austin, Texas 78773                             Opinion MW-133 should be given
                                                                   retroactive effect.

                   Dear Mr. Adams:

                          You icave requested our opinion regarding whether Attorney General
                   Opinion MW-133 (1980) should be given retroactive effect. In that opinion,
                   we construed the effect of amendments to article 42.13, Texas Code of
                   Criminal Procedure, on statutory provisions concerning the suspension of a
                   person’s &iver’s license in &iving while intoxicated cases. We said that,
                   whereas former article 42.13, Code of Criminal Procedure, had expressly
                   provided that an individual who receives misdemeanor probation &es not
                   have a final conviction, the amended statute &ems a grant of probation to
                   constitute a final conviction, except when probation is granted under section
                   3d, which provides for a deferred adjudication of guilt. Under section 24(a)
                   of article 6687b, V.T.C.S., a final conviction of the offense of &iv@ while
                   intoxicated results in the automatic suspension of the defendant’s license to
                   drive. Thus, we concluded that the amendments to article 42.13, Code of
                   Criminal Procedure, had significantly altered the law in this area.

                          These amendments, enacted by the 66th Legislature, Senate Bill 849,
                   Acts 1979, 66th Legislature, chapter 654, at 1514, took effect on Algust 27,
                   1979. Prior to the release of Opinion MW-133, (19801, there was widespread
                   disagreement as to the precise meaning of the amendments to article 42.13,
                   Code of Criminal Procedure, and it appears that many attorneys in good
                   faith advised clients to plead guilty in the belief that a grant of probation
                   would prevent the suspension of their Biving privileges. In recognition of
                   such reliance, you heve announced that the Department will record only
                   those convictions which became final on April 1, 1980, and thereafter.    You
                   inquire as to the status of persons convicted between Aqust 27, 1979, and
                   April 1,198O.
                         The amendments to article 42.12, Code of Criminal Procedure, were
                   enacted by the legislature on May 28, 1979, and signed by the Governor on
                   June 13, 1979, but did not become effective until Algust 27, 1979. Neither
                   the administering   egency nor the Attorney General is empowered to




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Honorable James B. Adams - Page Two            (Mw-204)




postpone the statute’s effective date beyond that fixed by the legislature. See Tex. Const.
art. I, s 29.    We conclude therefore that every person convicted ofxiving           while
intoxicated on August 27, 1979, or s&sequent thereto, is subject to the amendments to
article 42.13, Code of Criminal Procedure, which became effective on that date.       While
administrative  realities may make it impossible for the Department to implement the
statute at this time in all cases resolved after August 27, 1979, it should take the steps
which sre administratively     practical to enforce the statute from the time it became
effective.

                                       SUMMARY

           Amendments to article 42.13, Texas Code of Criminal Procedure,
           became effective on Atgust 27, 1979, and persons convicted of
           driving while intoxicated on that date or thereafter are subject
           thereto.




                                                  Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Dawn Bruner
Doug Becker
Susan Garrison
Rick Gilpin
Bruce Youngblood




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