If I refuse a breath test after a DWI arrest in Texas, can the justice of the peace give me probation instead of losing my license for 90 days?

Texas AG Opinion JM-959: Can a JP Probate a License Suspension?

Plain-English summary

Refuse a breath test after a drunk-driving arrest in Texas, and the law used to hit you with an automatic 90-day suspension of your driver's license. The question here was whether the justice of the peace who hears your challenge to that suspension can soften the blow by putting it on probation instead of letting it take full effect. The Attorney General said yes, the justice of the peace has that power.

The setup works like this. When someone arrested for driving while intoxicated refuses to give a breath sample, the arresting officer has to warn them that refusal means an automatic 90-day suspension, then report the refusal to the Department of Public Safety. The department suspends the license and notifies the driver. The driver can ask for an administrative hearing, which under the statute is held by a local official, often a justice of the peace, in the county where the driver lives. At that hearing the judge checks a short list: was there probable cause the person was driving intoxicated, was a breath sample requested, and did the driver refuse. If all three are yes, the suspension stands; if any is no, the license comes back.

The wrinkle was probation. An earlier Attorney General opinion, JM-250 from 1984, had read the statute to mean the hearing judge could only decide how the case was set, not grant probation of the suspension. But a Texas appeals court, in Texas Department of Public Safety v. Preston, rejected that reading. The court pointed out that if the driver had actually been convicted of DWI, the criminal court could have probated the license suspension, and it saw no reason the administrative process should be more rigid. It also noted that the breath-test statute pulls in other provisions of the general driver's license law, including the probation provision.

That probation provision, section 22(e) of article 6687b, was amended in 1987 to spell out that a judge or officer holding one of these administrative hearings may, when the ends of justice and the public interest are served, recommend that the suspension be probated on terms the judge sets, and then the department has to probate it. So the tool is right there in the statute for the hearing judge to use.

There is a limit, but it does not apply to the justice of the peace. The 1987 amendment also added a sentence forbidding probation in one specific setting: a separate appeal filed in county court under section 31 of the same law. That county-court appeal is a different track from the JP's administrative hearing. Because section 31 does not govern the justice of the peace hearing, the no-probation rule for county-court appeals does not reach the JP. The bottom line is that a justice of the peace, hearing a breath-test refusal case, can probate the 90-day suspension.

Currency note

This opinion was issued in 1988. 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.

Texas overhauled its driver's license and DWI administrative-suspension laws after this opinion. The implied consent and license suspension statutes in articles 6701l-5 and 6687b, V.T.C.S., were repealed and recodified into the Transportation Code, and the administrative license revocation (ALR) process, hearing procedures, and the role of administrative law judges have all changed substantially. The current framework for who hears a breath-test refusal case and whether a suspension can be probated differs from the 1988 rules. Anyone facing a license suspension today should consult the current Transportation Code and Department of Public Safety rules rather than the article and section numbers used here.

Who this opinion affected (as of 1988)

Justices of the peace: The opinion confirmed a JP holding a breath-test refusal hearing could recommend probation of the 90-day suspension, not just decide how the case was set.

Drivers who refused a breath test: The opinion recognized a path to probation of the automatic suspension through the administrative hearing.

The Department of Public Safety: The opinion clarified that when the hearing judge recommends probation under section 22(e), the department must probate the suspension.

Common questions

Can a justice of the peace probate a 90-day suspension for refusing a breath test?
Yes. The Attorney General concluded the JP holding the administrative hearing has authority to recommend probation of the suspension, and the Department of Public Safety must then probate it.

Didn't an older opinion say the JP could not do this?
Yes. Attorney General Opinion JM-250 (1984) read the statute more narrowly, but a Texas appeals court rejected that reading in Texas Department of Public Safety v. Preston, and this opinion followed the court.

Where does the probation power come from?
Section 22(e) of article 6687b, as amended in 1987, lets the judge or officer holding the hearing recommend probation on terms it sets when the ends of justice and the public interest are served.

Is there a situation where probation is not allowed?
Yes. The 1987 amendment barred probation on a separate appeal filed in county court under section 31 of the law. That bar does not apply to the justice of the peace administrative hearing.

Background and statutory framework

Article 6701l-5, V.T.C.S., governs the administration of breath tests and the suspension of licenses for refusal. Section 2(b) requires the arresting officer to advise a person arrested for driving while intoxicated that refusal to submit to the test may result in an automatic 90-day suspension. Section 2(d) requires the officer to immediately report a refusal to the Department of Public Safety. Section 2(f) provides that upon receipt of the report the director shall suspend the license for 90 days and notify the driver, and that within a specified time the driver may request an administrative hearing set in the same manner as a hearing under section 22(a) of article 6687b, V.T.C.S. If the court finds probable cause existed that the person was driving while intoxicated, that the driver was offered an opportunity to give a specimen, and that the driver refused, the director shall suspend the license for 90 days; if the court finds against any of those issues, the director shall return the license.

Section 22(a) of article 6687b vests jurisdiction of the administrative hearing in the mayor of the city, judge of the police court, or a justice of the peace in the county where the operator or licensee resides, and sets the notice and timing requirements for the hearing.

In Texas Department of Public Safety v. Preston, 727 S.W.2d 325 (Tex. App. - Houston [1st Dist.] 1987, writ ref'd n.r.e.), the court held that the trial court had authority to probate the 90-day suspension for refusal to give a breath specimen. The court rejected the conclusion in Attorney General Opinion JM-250 (1984) that section 2(f) of article 6701l-5 incorporates section 22(a) of article 6687b only for determining the manner in which refusal cases are set, reasoning that JM-250 disregarded section 4 of article 6701l-5, which incorporates other provisions of article 6687b. The court found it significant that had the driver been convicted of driving while intoxicated, the criminal court would clearly have had authority to probate the license suspension under article 42.12 of the Code of Criminal Procedure (Preston, 727 S.W.2d at 327).

Section 22(e) of article 6687b, as amended effective October 20, 1987 (Acts 1987, 70th Leg., 2d C.S., ch. 41), provides that the judge or officer holding a hearing under subsection (a), (b), or (d), or the court trying an appeal under section 31, on determining that the license shall be suspended or revoked, may, when it appears that the ends of justice and the best interests of the public and the defendant will be served, recommend that the suspension be probated on terms and conditions the officer or judge deems necessary or proper, and when probation is recommended the department shall probate the suspension. The amendment added language providing that this subsection does not apply to an appeal under section 31 for suspension of a driver's license or denial of operating privileges under section 2, Chapter 434, Acts of the 61st Legislature, Regular Session, 1969 (article 6701l-5, V.T.C.S.).

Section 31 of article 6687b, as amended effective September 1, 1987, provides that a person whose license has been suspended or revoked after an administrative hearing under section 22(a), whose suspension has been probated under section 22(e), or who has been denied or had a license cancelled by the department (except where the action is automatic under the Act), may file a petition within 30 days for a hearing in the county court at law, or if none, the county court of the county where the person resides. The legislature, by the 1987 amendment (Acts 1987, 70th Leg., ch. 1127), added the sentence prohibiting the granting of probation under a section 31 appeal to the county court. Because section 31 does not apply to the administrative hearing in the justice of the peace court, the justice of the peace retains authority to probate the suspension (see Coody, Probation of Driver's License Suspensions for Breath Test Refusals, Voice for the Defense (March 1988), at 6).

Citations

Statutory authority:

• Article 6701l-5, V.T.C.S. (breath tests; 90-day suspension for refusal; administrative hearing)
• Article 6687b, V.T.C.S. (driver's license law; section 22(a) hearing jurisdiction, section 22(e) probation, section 31 county-court appeal)
• Article 42.12, Code of Criminal Procedure (probation authority in a criminal DWI case)

Cases:

• Texas Department of Public Safety v. Preston, 727 S.W.2d 325 (Tex. App. - Houston [1st Dist.] 1987, writ ref'd n.r.e.) (trial court may probate the 90-day suspension for breath-test refusal)

Prior Attorney General opinions referenced: JM-250 (1984) (rejected by Preston).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-959
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0959.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The scanned page 1 header renders the opinion number as "JR-959"; the correct number is JM-959.

THE ATTORNEY GENERAL OF TEXAS

September 29, 1988

Honorable John L. Barnhill
County Attorney
Crosby County
Crosbyton, Texas 79322

Opinion No. JM-959

Re: Authority of a justice of the peace to probate suspension of a driver's license when an individual refuses to take a breathalyzer test (RQ-1419)

Dear Mr. Barnhill:

You ask whether a justice of the peace has the authority to probate the suspension of a driver's license when the defendant has refused to take a breathalyzer test.

Article 6701l-5, V.T.C.S., governs the administration of breath tests and the suspension of licenses for refusal to take the same. Section 2(b) requires that an arresting officer advise a person arrested for driving while intoxicated that refusal to submit to the test may result in the driver's license being automatically suspended for 90 days. Section 2(d) requires the arresting officer to immediately make a report to the Department of Public Safety if the person refuses to submit to a breath test.

Section 2(f) provides that upon receipt of the report the director of the department of public safety shall suspend the person's license for 90 days and notify the driver of the suspension.

Within a specified time the driver may request an administrative hearing. The hearing shall be set "in the same manner as a hearing under section 22(a)" of article 6687b, V.T.C.S. If upon hearing the court finds that probable cause existed that the person was driving while intoxicated, that the driver was offered an opportunity to give a specimen, and that there was a refusal to give a specimen upon the request of the officer, the director of the department of public safety shall suspend the person's license for a period of 90 days. If the court finds in the negative on any of the issues, the director shall return the license. V.T.C.S. art. 6701l-5, section 2(f).

Section 22(a) vests jurisdiction of the administrative hearing 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." Section 22(a) further provides in pertinent part:

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. . . . 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.

6687b, V.T.C.S. section 22(a).

In Texas Department of Public Safety v. Preston, 727 S.W.2d 325 (Tex. App. - Houston [1st Dist.] 1987, writ ref'd n.r.e.), the court held that the county civil court had authority to probate the 90 day suspension of a driver's license for refusal to give a breath specimen. The court rejected the conclusion reached in Attorney General Opinion JM-250 (1984) that section 2(f) of article 6701l-5 incorporates section 22(a) of article 6687b only for determining the manner in which breath test refusal cases are set. In rejecting Attorney General Opinion JM-250, the court stated that the opinion disregarded section 4 of article 6701l-5 which incorporates other provisions of article 6687b. The court concluded that section 22(c) of article 6687b governs every appeal of a driver's license suspension, whether under section 22(a) or under section 31.

In holding that the court could grant probation of the suspension for refusal to take the test, the court found it significant that "had appellee been convicted of the offense of driving while intoxicated, the criminal court would clearly have had the authority to probate the suspension of his license" under article 42.12 of the Code of Criminal Procedure. Preston, 727 S.W.2d 325, 327.

Section 22(e) of 6687b as amended, effective October 20, 1987, provides:

(e) The judge or officer holding a hearing under Subsection (a), (b) or (d) of this section, or the court trying an appeal under Section 31 of this Act, on determining that the License shall be suspended or revoked, may, when it appears to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby, recommend that the revocation or suspension be probated on terms and conditions deemed by the officer or judge to be necessary or proper. The report to the department of the results of the hearing must include the terms and conditions of such probation. When probation is recommended by the judge or officer presiding at a hearing, the department shall probate the suspension or revocation. This subsection does not apply to an appeal under Section 31 of this Act for suspension of a driver's license or denial of operating privileges under Section 2, Chapter 434, Acts of the 61st Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas Civil Statutes). (Emphasis reflecting portion added by amendment.)

Acts 1987, 70th Leg., 2d C.S., ch. 41, section 2, at 130.

Section 31 of article 6687b as amended, effective September 1, 1987, provides in pertinent part:

Any person whose driver's license has been suspended or revoked after an administrative hearing under Section 22(a) of this Act, any person whose license suspension has been probated under Section 22(e) of this Act, and any person denied a license or whose driver's license has been cancelled by the Department, except where such cancellation, suspension, or revocation is automatic under the provisions of this Act, shall have the right to file a petition within thirty (30) days after the date the order of the Department was entered for a hearing in the matter in the County Court at Law in the county wherein such person shall reside, or if there be no County Court at Law therein, then in the county court of said county. . . . (Emphasis added.)

The legislature by the 1987 amendment added the sentence that prohibits the granting of probation under a section 31 appeal to the county court. Acts 1987, 70th Leg., ch. 1127, section 6, at 3861. Section 31 does not apply to the administrative hearing in the justice of the peace court. See Coody, Probation of Driver's License Suspensions for Breath Test Refusals, Voice for the Defense (March 1988), at 6.

SUMMARY

The justice of the peace has the authority to probate the suspension of a driver's license in an administrative proceeding where the defendant has been found to have refused to take a breathalyzer test.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General