Could Texas probate a driver's-license suspension for refusing a DWI breath test when the driver received criminal probation or a jury recommended no suspension?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-250: Breath-Test Refusal Suspension
Plain-English summary
The request asked whether the Department of Public Safety could probate a driver's-license suspension for refusing a breath test when the person also received a probated DWI sentence, or when a DWI jury recommended that the license not be suspended. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
JM-250 answered no. Its summary stated: "The suspension of a driver's license for failure to submit to a breath test may not be probated." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
The opinion treated the refusal proceeding as separate from the criminal DWI case. Article 6701l-5 said the 90-day suspension could occur "whether or not the person is subsequently prosecuted as a result of the arrest." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Although article 6701l-5 used article 6687b's procedure for setting an administrative hearing, JM-250 said it did not incorporate article 6687b's probation provisions. Neither statute supplied a provision to probate a suspension for refusing the breath test. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
The opinion overruled Attorney General Opinion H-1201 (1978), which had reached the opposite conclusion. JM-250 said the 1983 amendments made clear that refusal suspension was "an entirely separate matter" from the criminal penalties and procedures. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Could the breath-test-refusal suspension be probated because the DWI sentence was probated?
No. JM-250 said the refusal suspension could not be probated "notwithstanding the fact that a conviction in a different court of a DWI offense may have resulted in a probated sentence." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Could a jury recommendation against suspension change the result?
No. The opinion reached the same answer even if a jury following the DWI conviction recommended that the license not be suspended. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Was the breath-test-refusal proceeding part of the criminal DWI prosecution?
No. JM-250 described the proceedings as "separate and distinct from criminal proceedings under the DWI statutes" and later characterized the refusal suspension as a purely civil penalty. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
What did the administrative refusal hearing decide?
The opinion said suspension followed if the court found probable cause for the DWI arrest, an opportunity to take the breath test, and a refusal. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Why did article 6687b not authorize probation of the refusal suspension?
Article 6701l-5 incorporated section 22(a) only for determining how refusal hearings were "set." JM-250 said the separate probation provision had nothing to do with setting the hearing and therefore was not incorporated. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Background and statutory framework
Article 6701l-5 governed breath tests and license suspension for refusals. Section 2(b) required the arresting officer to warn that refusal could lead to an automatic 90-day suspension whether or not prosecution followed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
After a refusal, the officer reported to DPS, and the director was required to suspend the license after notice of the right to an administrative hearing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Section 2(f) used article 6687b, section 22(a), for the manner of setting the refusal hearing. JM-250 said this procedural cross-reference did not import article 6687b, section 22(e), which addressed probation of license revocation or suspension. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Citations and references
- Attorney General Opinion H-1201 (1978) had concluded that article 6701l-5 incorporated probation provisions from article 6687b. JM-250 expressly overruled it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
- The opinion relied on 1983 amendments stating that refusal suspension operated regardless of later prosecution and deleting language tied to a not-guilty result in the DWI case. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0250
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0250.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
December 13, 1984
Honorable Charles Evans
Chairman
House Administration Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769
Opinion No. JM-250
Re: Whether the Texas Department of Public Safety may probate the suspension of a driver's license of a person who has been convicted of driving while intoxicated as a result of a breath test refusal
Dear Representative Evans:
You have asked two questions concerning the suspension of a person's driver's license in connection with prosecution for driving while intoxicated. You first ask whether the Texas Department of Public Safety [hereinafter DPS] may suspend the license of a person convicted of driving while intoxicated [hereinafter DWI] and placed on probation following such conviction if the individual has been found on appeal to have refused a breath test. Such proceedings are separate and distinct from criminal proceedings under the DWI statutes. Secondly, you ask whether the department may suspend a driver's license when a person has been convicted of DWI by a jury and such a jury recommends that his license not be suspended, despite an affirmative finding of a breath test refusal.
Article 6701l-5, V.T.C.S., governs the administration of breath tests and the suspension of licenses for refusals to take the same. Section 2(b) requires that an arresting officer advise a person arrested for DWI that refusal to submit to the test may result in the driver's license being "automatically suspended for 90 days . . . whether or not the person is subsequently prosecuted as a result of the arrest." Upon refusal of a request to submit to a breath test, the arresting officer is required by section 2(e) to immediately make a written report to the DPS. Upon receipt of the report the director of DPS is required to suspend the person's license for 90 days after the person is notified of his right to an administrative hearing on the breath test refusal. V.T.C.S. art. 6701l-5, §2(f).
The person who refuses the breath test and is notified by the DPS that his license will be suspended has a right to request an administrative hearing. At these hearings the court is required to order the suspension of the license if it finds that there was probable cause for the DWI arrest, that the person was given an opportunity to submit to a breath test, and that he refused. Id. §2(f). Section 2(f) provides further that these administrative hearings on breath test refusals are required to be "set in the same manner as a hearing under Section 22(a)" of article 6687b, V.T.C.S. Thus, when the DPS is informed by a driver that the driver desires an administrative hearing, the DPS is required to set such case in accordance with the provisions of section 22(a), article 6687b.
Section 22(a) vests jurisdiction of these administrative hearings in municipal mayors and judges, or justices of the peace and provides in part:
Sec. 22. (a) . . . Such hearing shall be had not less than ten (10) days after notification to the licensee or operator under any of the provisions of this section, and upon charges in writing, a copy of which shall be given to said operator or licensee not less than ten (10) days before said hearing, except as otherwise provided by this subsection. For the purpose of hearing such cases, jurisdiction is vested in the mayor of the city, or judge of the police 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 for hearing upon ten (10) days' written notice to the Department . . . Notice by registered mail to the address shown on the license of the licensee shall constitute service for the purpose of this section. . . .
Article 6701l-5, section 2(f), incorporates article 6687b, section 22(a), only for the purpose of determining the manner in which breath test refusal cases are "set." Article 6701l-5 does not incorporate other provisions of article 6687b, portions of which provide for the probation of license suspension, which we believe do not have anything to do with the "setting" of the administrative hearing. See V.T.C.S. art. 6687b, §22(e) (authority to probate license revocation or suspension). There is no provision in either article 6701l-5 or article 6687b, section 22(a), which provides for the probation of a license suspension for the failure to submit to a breath test.
Attorney General Opinion H-1201 (1978) concluded that article 6701l-5 incorporated the probation provisions of article 6687b. We believe that this opinion misconstrued the statutes and it is hereby overruled. In 1983, the legislature amended article 6701l-5 to make it clear that suspension of a driver's license for refusal to take a breath test is an entirely separate matter from the penalties and procedures of article 6687b (e.g., requiring that suspension will automatically take place regardless of "whether or not the person is subsequently prosecuted as a result of the arrest," section 2(b); deletion of pertinent part of old section 2 requiring reinstatement of suspended license when person found "not guilty" of DWI). Thus, the suspension at issue here is apparently intended to be a purely civil penalty. Attorney General Opinion H-1201 may have been incorrect under the old language; it is more clearly incorrect under the amended language. We conclude, in answer to your questions, that the suspension of a driver's license for failure to submit to a breath test may not be probated notwithstanding the fact that a conviction in a different court of a DWI offense may have resulted in a probated sentence or the fact that the jury following a DWI conviction has recommended that the license not be suspended.
SUMMARY
The suspension of a driver's license for failure to submit to a breath test may not be probated.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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