Podany v. State

358 S.W.2d 118, 172 Tex. Crim. 451, 1962 Tex. Crim. App. LEXIS 1038

Opinions

DICE, Judge.

Appellant was convicted under Art. 6687b, V.A.C.S. of operating a motor vehicle upon a public highway while his operator’s license was suspended and assessed punishment at a fine of $250 and confinement in jail for 6 months.

The sufficiency of the evidence to sustain the conviction is challenged.

■ While the evidence shows that on the day appellant drove an automobile upon a public highway he possessed a Texas Commercial Operator’s License which had been ordered suspended for six months by the Department of Public Safety for certain moving traffic violations there was no proof that he had received notice of the order of suspension.

Art. 6687b, Sec. 26, supra, provides “The Department, upon suspending or revoking a license, shall require that such license shall be surrendered to and be retained by the Department except that at the end of the period of suspension of such license, the license so surrendered shall be returned to the licensee.”

Sec. 22 (c) of the same article provides that any licensee who is not willing and does not consent to abide by the final ruling or decision of the Department suspending his license may “within thirty (30) days after the date of receipt of notice of the sus pension of such license from the Department”, bring suit in the County Court, or County Court at ?aw of his residence, to vacate and set aside the final ruling and decision suspending the license and “if such licensee has not filed suit within thirty (30) days after the date of notice by registered mail of the suspension of such license, as provided herein, then the final ruling of the Department suspending such license shall become final.”

The only evidence of notice to appellant of the suspension of his license was that a letter containing the order of suspension was addressed to him and sent to the address shown on his operator’s license by certified mail but that the same was returned to the Department unclaimed.

With respect to notice under the statute, Sec. 22 of Art. 6687b, supra, provides: “Notice by registered mail to address shown on the license of licensee shall constitute service for the purpose of this Section.”

Art. 29c, V.A.C.S. subsequently enacted, authorizes the use of certified mail in lieu of registered mail “provided receipt for such certified mail is validated by official postoffice postmark”.

In the recent case of Smith v. State, 324 S.W. 2d 207, in reversing a conviction under Art. 6687b, supra, because notice of hearing and suspension had not been given to the accused it was pointed out that notice by certified mail under Art. 29c, supra, requires that “receipt for such certified mail is validated by official postoffice postmark.”

The mailing of the letter addressed to appellant and sent by certified mail was insufficient as a notice to him of the suspension of his operator’s license, in the absence of a receipt therefor validated by an official postoffice postmark.

The evidence is undisputed that appellant had not received notice of the order suspending his operator’s license, and under such record the conviction cannot stand.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.