Honorable Homer Garrison. Jr., Direotor.
Texas Department of Publio Safety
campIdabry
Austin, Texas

Attention, Honorab1e.J. B,.Draper
           ~Drivers!License Division    Opinion No. O-6142
                                        Reg Restoration of drivers lioense
Dear Sirs.                              where suspension was not an incident
   ', .~'.                              of a cbnviotion for a oriminal offense.

         FVe quote from your letter as followsr

                "Vk are inreoeipf of a copy of the above aaptioned
          opinion (O-6052), which states that the Governor has the
          power to restore a license that has been autmat;ioally sus-
          pended as a result of being aonvioted of~the offense of
          'driving a motor vehicle while under the influenoe of in-
          toxicating liquor,' ~kutdoes not state whether or not the
          Governor has the power to restore the driver's license of
          a person whose lioense has been suspended by the Depart-
          ment under the authority vested in the Department under
          Section 22~of Artiole-6681b, Vernon's Texas Statutes.

                "Since the opinion furnished Mr. Guinn does not sesm
          to answer the,above question,,we rtispectfullyrequest that
          you advise us concerning same."~

           In our opinion No. o-6052, va ruled that the Governor has wer,
after oonviction, on the reccsunendationof the Board of Pardons and fp aroles,
to remit forfeitures in all criminal cases; that this pardoning power would
extend to a driver's license which had been suspended automatlaally a8 a
part of the penalty after oonviation for the offense of driving an automo-
bile while under the influence of intoxicating liquor. Our ruling in that
opinion would apply with equal,foroe to the other offenses mentioned in
Section.24 of Article 6667~. V.h.CkS., for,whioh an automatio suspension
is prescribed.
                                ..'.
         :'A different rule applies.,hoivever, tomthe~question you present.
'Section 22 of the same statute sets forth oertain conditions under whioh
the Department of Public Safety, independent of a oriminal conviction, is
authorized to suspend a driver's lioense. The Department, for example,
                                                                               -.




Honorable Homer Garrison, Jr., Page 2 (O-6142)



may suspend a lioense for such aots as being involved in traffic accidents
resulting in personal injury or serious property damage, for habitually in-
dulging in reokless or negiligent driving or for failing to report to prop-
er authority a traffio accident in whioh the driver may be involved.

          Such a&s, while forming the basis for suspension under the stat-
ute, may not neoessarily amount to a violation of the law. In any event,
the statute does not under such circumstances provide for sn autcinatiosus-
pension, tit leaves for the discretion of the Board the question of whether
it will proceed for such suspension.

          We think the question you present is ruled by such oases as State
vs. iIazzard,247 Pao. 957: 40 A.L.R. 536. In that 0888 a physician was con-
victed of manslaughter in the State of Washington. After oonviotion the
State bledicalBoard, on the strength of the record in the criminal prooeed-
ing, cancelled her license to praotiae medioine. Subsequently, the Govern-
or granted her a full pardon. The action ~a8 one to require a restoration
of her license under the contention thai the pardon had effected such res-
toration.

          The State Supreme DDurt rejected such a doctrine, saying, in part:
                n      Now if the revocation of the license
          of appe&t    oan'Lbesaid to be a portion of the
          penalty provided by law upon oonviotion of crime of
          manslaughter, then it might reaoonably be argued that
          the pardon which release8 from the penalty would
          return the license. . . ."

          After   pointing out this distinction, the Court said8
                11      Pardons may relieve from the olsab;lrty
          of fine: ki forfeitures attendant upon a oonviotion,
          but they oannot srasa the stain of bad character, whioh
          has been definitely fixed. . . ."

          Then, quoting from another authority, the opinion oontinuesr
                " . . . We think the effeot of a pardon is to re-
          lieve the offender of all unanforoed penalLies annexed
          to the conviction, but ,whe.t
                                      the party convicted has al-
          ready endured, or paid, the pardon does not restore.
          When it takes effeot, it puts an end to any further in-
          fliction of punishment, but has no operation upon the
          portion of the sentenoe already exeouted. A pardon
          proceeds not upon the theory of innocence, but impldes
          guilt."
Honorable Homer Garrison,   Jr., Page 3 (O-6142)



          The court then maoon& in aonolusioathat sinoo the cancelk-
tion of li%n-e xus not 'annaxed" to the oriminai oonviotion and was not
a part of the penalty for the offense, that the Governor's constitution-
al power "to remit fines and forfeitures" did not and could not effect a
restoration of the license. For Texas authorities to same effect, 888
Ex parte Green, 295 S.W. 910; 31 Tex. Jur. 1260, Pardon, Sec. 5. See also
Baldi VS. Gilohrist, 196 N. Y. Supp. 493, involving denial to a pardoned
felon of a license to drive a taxicab.

          The effect of these deoisions is to hold that the sovereign
power to remit forfeitures is limited to such forfeitures as are inci-
dental to convictions in oriminal cases. But the courts of this country
have not construed such oonstitutional provisions to authorize executive
clemency in instances where administrative agents, acting independehtly
under legislative authority, have for good oause seen fit to aanael or
suspend licenses or privileges for the protection of the safety, the
health or the morals of the people. Such independent prooeedinga are
not criminal but civil in nature and are beyond the reach of the pardon-
ing power under the Constitution.

                                            Very truly yours



                                         ATTORREY GENhW   OF TEYAS

                                          By   /s/ Elbert Hooper

                                                   Elbert hoboper
ER:db:egw                                              Assistant

APPROVED OCT 27, 1944
/s/ Carlo6 Ashley
FIRST ASSISTANT
ATTORNEY GEX~RAL                         Approved Opinion Committee
                                         By BKB Chairman
