Untitled Texas Attorney General Opinion ( 1980 )


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    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
    .
    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
    .   .
    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
    p.    429
    .   .
    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