Texas Department of Public Safety v. Walker

820 S.W.2d 958, 1991 Tex. App. LEXIS 3040, 1991 WL 259858
CourtCourt of Appeals of Texas
DecidedDecember 11, 1991
DocketNo. 3-91-001-CV
StatusPublished
Cited by2 cases

This text of 820 S.W.2d 958 (Texas Department of Public Safety v. Walker) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Department of Public Safety v. Walker, 820 S.W.2d 958, 1991 Tex. App. LEXIS 3040, 1991 WL 259858 (Tex. Ct. App. 1991).

Opinion

PER CURIAM.

This is a driver’s license suspension case. The question presented is whether an order suspending the privilege to drive of a provisional licensee survives the expiration of the provisional license. The county court at law concluded that it did not and entered a judgment restoring appellee’s driving privileges. We will reverse the judgment of the county court at law and render judgment in favor of the Department of Public Safety.

On April 27, 1989, appellee was seventeen years old and the possessor of a provisional driver’s license. Tex.Rev.Civ.Stat. Ann. art. 6687b, § 11A (Supp.1991). On that date, a justice court found that appel-lee had been convicted of two or more moving violations within the previous twelve months and ordered that his license and privilege to drive be suspended for twelve months. Art. 6687b, §§ 22(a), 22(b)(10). On the recommendation of the justice of the peace, the suspension was probated for twelve months, subject to the condition that appellee not be convicted of any moving violation committed during the probationary period. Art. 6687b, § '22(e).

On May 22, 1989, appellee’s eighteenth birthday, his provisional driver’s license expired. Art. 6687b, § 18(a)(2). Three days later, on May 25, appellee was cited for speeding and driving without a license, offenses for which he was convicted the following month. On that same May 25, ap-pellee applied for and was issued his “regular” driver’s license. Art. 6687b, § 11(a).

On August 10, 1989, the justice court found after a hearing that appellee had violated the conditions of probation. Art. 8867b, § 22(f). Appellee’s driver’s license was suspended, but the order of suspension was abated by the filing of appellee’s petition of appeal in the county court at law. Art. 6687b, § 31.

The issue before the county court at law was whether appellee violated the conditions of probation. Art. 6687b, § 22(f); Department of Public Safety v. Schaejbe, 687 S.W.2d 727 (Tex.1985). The stipulated evidence demonstrated that appellee had been convicted of a moving violation committed during the probationary period, and the court so found. Nevertheless, the court rendered judgment that appellee’s driving privileges be restored, his license returned, and the cause dismissed. The court explained its action in the following conclusions of law:

1. Plaintiff’s [appellee’s] Provisional License expired by operation of law on Plaintiff’s eighteenth birthday. Article 6687b, Sec. 18(a)(2), V.A.T.S.
2. Since the original action was brought to suspend Plaintiff’s Provisional License it would be a denial of due process to suspend Plaintiff’s regular License since there was no notice that the suspension or probation would affect his regular License.
3. Article 6687b, V.A.T.S., makes no provision for suspension of a regular license for matters that occurred while a driver holds a provisional license.
4. The Court has only the authority to suspend the Plaintiff’s Provisional License but cannot suspend his regular Driver’s License.

By its first point of error, the department urges that the county court at law erred by refusing to suspend appellee’s driver’s license. In its argument under this point, the department takes issue with the court’s third and fourth conclusions of law. As we will explain, we conclude that art. 6687b does provide for the suspension of appellee’s driver’s license and that the court below was authorized to so order.

[960]*960Appellee argues that the court’s conclusions are supported by the opinion in Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67 (1953). Boston’s driver’s license was suspended, and he appealed to the county court at law. Thereafter, the department refused to renew the license, from which decision Boston also appealed to the county court at law. While these appeals were pending, Boston sought injunctive relief in district court. That court denied relief and he appealed to the supreme court. The supreme court held that insofar as it related to the suspension order, the case was moot. Boston’s appeals of the department’s actions did not extend the life of his suspended license or permit him to drive without a license pending appeal from the denial of renewal. Setting aside the suspension order would have no effect since Boston no longer had a license to drive, and because the term of suspension had expired.

Boston must be read together with the opinion in Department of Public Safety v. Austin, 163 Tex. 280, 354 S.W.2d 376 (1962). Austin’s driver’s license was suspended, and he appealed to the county court at law. That court found the evidence insufficient to support the suspension order, and the department appealed to the court of civil appeals. While the appeal was pending, the department renewed Austin’s license. The court of civil appeals, citing Boston, dismissed the department’s appeal as moot because the suspended license had expired.1 The supreme court reversed and remanded for a decision on the merits of the appeal. The supreme court distinguished Boston as follows:

In [Boston ], the appeal was from a judgment of the District Court upholding the suspension. A reversal of that judgment would have accomplished no more than to terminate a suspension that had already terminated by its own terms. In the case here the suspension was set aside by the County Court and the dismissal by the Court of Civil Appeals would result in the suspension being made null and void. [Citation omitted.] To hold this case moot would effectively nullify the right of the Department to appeal from such an adverse decision of the trial court, or to enforce a suspension that had been properly ordered due to the lapse of time incident to court procedure.

354 S.W.2d at 378.

By holding that the appeal in Austin was not moot, the supreme court was necessarily stating that a suspension of the privilege to drive continues beyond the expiration of the driver’s license in effect at the time the suspension is ordered. Preble v. State, 402 S.W.2d 902, 904 (Tex.Crim.App.1966); Department of Public Safety v. Preble, 398 S.W.2d 785, 788 (Tex.Civ.App.1966, no writ). In other words, a subsequently issued license may be suspended pursuant to an order made before its issuance based on acts committed before its issuance. Department of Public Safety v. De los Santos, 622 S.W.2d 622 (Tex.App.1981, no writ); Preble, 398 S.W.2d at 788.2 In Austin, the order suspending the driver’s license was not immediately effective because the licensee appealed, but the reasoning of the supreme court is equally applicable where the suspension order is probated.

The department is forbidden to issue a driver’s license to any person whose driver’s license has been suspended, during the period of suspension. Art. 6687b, § 4(3).

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Bluebook (online)
820 S.W.2d 958, 1991 Tex. App. LEXIS 3040, 1991 WL 259858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-department-of-public-safety-v-walker-texapp-1991.