Untitled Texas Attorney General Opinion

m-w- GENERAL EXAS

Hon. Jack ?I.Holland Opinion No. C- 254 County Attorney Henderson County Re: Whether a person can be Athens, Texas charged with operating a motor vehicle while his license was under sus- pension, when he has plead guilty and paid a fine for operating a motor vehicle without a driver's license, involving the same trans- Dear Mr. Hollandt action. In Your letter requesting an opinion of this office, you state the following facts: "A person was charged in a justice of the peace court with a violation of Article 6687b, Section 2(a), to wit: not having a driver's license. The defendant pleaded guilty and paid a fine.~ A subsequenttraffic check with the Deoartment of Public Safety revealed that the defendant's driver's license had previously been suspended and said suspensionwas In effect at the time the defendant was charged and pleaded guilty in the justice court and still is in ef- fect. I would appreciateyour advising me whether the defendant can, after he has paid his fine In the justice court be char ed with a violation of Section 34, of Article 66 %‘i’b, to wit: driving while his license Is under suspension." Section 2(a) and Section 34 of Article 6687(b) Vernon's Civil Statutes read as,follows: "Section 2. Drivers must have license "(a) No person, except those hereln- after expressly exempted, shall drive any motor vehicle upon a highway In this State unless such person has a valid license as an operator, a commercial operator, or a chauffeur under the provisions of this Act."

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"Section 34. Driving while license suspended or revoked. "Any person whose operator's, commer- cial operatorts or chauffeurls,licenseor driving privilege as a non-residenthas been cancelled, suspended,or revoked as provided in this act and who drives any motor vehicle upon the highways of this state while such license or privilege is cancelled, suspended, or revoked is guilty of a misdemeanor,and, upon conviction, shall be punished by a fine of not less than twenty-fivedollars ($25), and not more than five hundred dollars ($500) and, in addition thereto, there may be imposed a sentence of imprisonmentnot to exceed six (6) months." Article 1, Section 14 of the Constitutionof the State of Texas provides that: "No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." Article 536 of Vernon's Code of Criminal Procedure pro- vides that: "A former judgment of acquittal or conviction In a court of competent jur- isdiction shall be a bar to any further prosecutionfor the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had no jurisdiction,unless such judgment was had upon Indictmentor ln- formation, in which case the prosecution shall be barred for all grades of the offense." In Richardson v. State, 109 Tex.Crim. 403, 5 S.W.2d 141, (1928) the court held that a convictionbefore a justice of ihk p&ace for drunkenness on a highway was not a bar to a subsequent Indictmentand prosecution involving the same trans- action for driving an automoblle while Intoxicated. ._ -1223-

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Hon. Jack K. Holland,.page 3, (C- 254 ) ,.

In Mangan v. State, 344,S.W.2d,448,(TexCr$m..lg61), defendant was proseouted incorporation court upon a complaint for indecent exposure,andwas subsequentlytried on two sepa- rate offenses of aggravated assault in the county court at law. Both charges arose out of the same transactionand the defend- ant filed a plea'of former conviction wherein he alleged that he had been found guilty in corporation court of the offense of Indecent exposure arisjng out of the same transaction for which he was on trial in the county court at law. There the court held that under Article 536, that: I, . ."'. appellant's prosecution In corporation court, upon complaint for indecent exposure, would not bar his prosecution in county court for the higher grade offense of aggravated as- sault .”

The Court In support of this proposition cited the cases: Henkel v. State, g Tex.App. 510, Caudle v. State, 57 Tex.Crlm. 363, 123 Carte Iiernandez,126 Tex.Crlm, 303, 71 Since a violation of Section 2 of Article for a fine of not more than $200 It is therefbre'a-misdemeanor and is triable in the justice of the peace court under a com- plaint and is not brought under an indictmentor information as provided for under Article,536 itisour opinion that the defendant can, even after he has paid his fine in the justice court for driving without a license, be tried for violation of Section 34 of Article 6687(b), to wit: driving while his license is under suspension. In view of the fact that the penalty provided for driving while license is suspended Is a fine of not less than $25 nor more than $500 and in addition thereto, there may be Imposed a sentence of imprisonmentnot to exceed six months, and there- fore Is only triable in the county court of law, this would not be in violation of Article 536. Therefore, the defendant can be charged with the vlola- tion of Section 34, Article 6687(b), to wit: driving while his license is under suspension. SUMMARY Conviction before the justice of the peace for driving without a l$cense is not a bar to a subsequent charge involving the same motor vehicle operation brought on Informationand complaint before the county court at law -1224-

Hon. Jack Ii.Holland, Page 4 (C-254 )

charging the defendant with the violation of Section 34 of Article 6687(b), to wit: driving while his license is under suspension. Very truly yours, WAGGONER CARR Attorney General of Texas

, BY 1B C' 'J Ass&t&t%or%y General ABC:cg APPROVED: OPINION COMfUTTEE W. V. Geppert, Chairman Norman Suarez Robert Smith Malcolm Quick w. 0. Shu1tz APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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