Ex parte Pennell

606 S.W.2d 303, 1980 Tex. Crim. App. LEXIS 1312

• Court: Court of Criminal Appeals of Texas
• Decided: July 16, 1980
• Docket: No. 64228
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in habeas corpus proceedings in the County Criminal Court at Law No. 8 of Harris County denying relief.

The thrust of appellant’s habeas corpus application is that he was convicted in district court of the felony offense of driving a motor vehicle upon a public highway while intoxicated, that the imposition of the sentence was suspended and he was placed on probation under Article 42.12, Sec. 3, V.A.C. C.P., but that the Texas Department of Public Safety erroneously viewed the conviction as a “final conviction” and suspended his driver’s license subjecting him to prosecution for driving while license suspended and other collateral consequences. After the habeas corpus hearing the judge of the County Criminal Court at Law No. 8 of Harris County found the appellant had been “finally” convicted of the felony offense and that appellant’s driving privileges had been properly suspended. Relief requested that appellant’s felony conviction was not final and the suspension of his driver’s license was improper-was denied.

The record reflects that on January 25, 1979, the appellant pled guilty to the felony offense of driving while intoxicated in Cause No. 288,705 in the 263rd District Court of Harris County. Punishment was assessed at 4 years imprisonment and a $100.00 fine. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions under Article 42.12, Sec. 3, V.A.C. C.P. In light of the nature of the offense the Department of Public Safety suspended his commercial operator’s license under Article 6687, Sec. 24(a)(2), V.A.C.S. It appears that since this was appellant’s fourth suspension the suspension period was set at 18 months.

On January 11, 1980, petitioner was found guilty of driving while his license was suspended (Article 6687, Sec. 24, V.A.C.S.) on January 4, 1980. The conviction occurred in County Criminal Court at Law No. 9 of Harris County. His punishment was assessed at 10 days in jail and a fine of $25.00. After sentence, no appeal was taken and appellant paid his fine and served his jail time. As a result of this misdemeanor conviction the Department of Public Safety extended the then existing license suspension for 8 months to be effective January 27, 1981.

On February 28, 1980, appellant filed his aforesaid habeas corpus application in County Criminal Court No. 8 of Harris County contending his felony conviction for DWI was not a final conviction and the suspension of his operator’s license as a result thereof was improper.¹ Denying relief the judge of said court expressly passed on the question presented. Notice of appeal was given.

In oral argument before this Court, the State readily and the appellant reluctantly admitted in response to questioning from the bench that this was a test case to determine whether a felony conviction for driving while intoxicated wherein the defendant is placed on adult probation under Sec. 3 of Article 42.12, V.A.C.C.P., is a “final conviction” authorizing the suspension of the defendant’s operator’s license.

In Ex Parte Sullivan, 534 S.W.2d 140 (Tex.Cr.App.1976), an extradition case, this Court wrote:

“The jurisdiction of a county court or judge thereof to issue a writ of habeas corpus is limited by the Constitution of Texas to cases where the offense charged is within the jurisdiction of the county court or any court or tribunal inferior to said county court. Article V, Sec. 16, Constitution of Texas. See Ex parte Manzella, 443 S.W.2d 260 (Tex.Cr.App.1969); Ex parte Bennett, 442 S.W.2d 373 (Tex.Cr.App.1969).”

We conclude that the question of whether a felony conviction for driving while intoxicated, wherein the defendant has been granted probation under Article 42.12, Sec. 3, supra, is a final conviction, is beyond the habeas corpus jurisdiction of the County Criminal Court at Law No. 8 of Harris County. The court having no jurisdiction properly denied relief although its reasoning was otherwise.

The judgment is affirmed.

Before the court en banc.

ON APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING

1 . Article 6687b, Sec. 25(c), V.A.C.S. provides:

“(c) For the purpose of this Act, the term ‘conviction’ shall mean a final conviction. Also, for the purpose of this Act a forfeiture of bail or collateral deposited to secure defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.”