Crowe v. Texas Department of Public Safety, s. 7563

• Decision Date: 24 January 1966
• Docket Number: 7564,Nos. 7563,s. 7563
• Citation: 399 S.W.2d 176
• Parties: Charles Thomas CROWE, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee. Alfred Lee WALLIS, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Texas Court of Appeals

Page 176

399 S.W.2d 176

Charles Thomas CROWE, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.

Alfred Lee WALLIS, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.

Nos. 7563, 7564.

Court of Civil Appeals of Texas, Amarillo.

Jan. 24, 1966.

Rehearing Denied Feb. 21, 1966.

Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, James H. Doores and Folley, Snodgrass, Calhoun & Kolius, Joe Bob Brown, Amarillo, of counsel, for appellants.

Naomi Harney, County Atty., Charles W. Fairweather and Paul D. Funderburk, Asst. County Attys., Amarillo, for appellee.

NORTHCUTT, Justice.

These are driver's license suspension cases. Pursuant to the provisions of Article 6687b, Section 22(a) Vernon's Ann.Civ.St. as amended, the Texas Department of Public Safety caused Charles Thomas Crowe and Alfred Lee Wallis to appear before a justice of the peace of Potter County, Texas, for a hearing to determine whether they were habitual traffic violators within the meaning of Article 6687b, Section 22(b), Paragraph 4, V.A.C.S. The justice of the peace made an affirmative finding and the Texas Department of Public Safety suspended the driver's license of both of these appellants for a certain period of time. From those orders both Crowe and Wallis appealed to the County Court at Law of Potter County, Texas, by authority of Article 6687b, Section 22(c) V.A.C.S.

Both cases were presented to the trial court on motions for summary judgment filed by appellants and appellee. Appellants' motions were denied and the motions of Texas Department of Public Safety were granted in both cases authorizing the Department to suspend appellants' drivers' licenses. From those judgments appellants perfected this appeal. On joint motion the cases have been consolidated for purpose of briefing, argument and presenting here.

Appellants by their for assignments of error contend the court erred in granting appellee's motion for summary judgment because appellants as a matter of law were not habitual violators of the traffic law; in denying appellants' motions for summary judgment because the evidence established as a matter of law that neither appellant had been convicted as many as four times for moving traffic violations occurring within twelve months period; in holding appellants were habitual violators and in holding that each appellant had four or more convictions occurring within twelve months period.

Attached to the motion of Texas Department of Public Safety for summary judgment as against Crowe are five notices of conviction duly executed by the judge of the Corporation Court of Amarillo, Texas. There were six notices of convictions duly executed by the judge of the Corporation Court of Amarillo, Texas, attached to the motion for summary judgment as to Wallis. Proper notices were given to both appellants as provided under Article 3731a, if such notices should be considered as necessary. In each and all of said notices of conviction attached to the motion for summary judgment contained all of the requirements set out in Article 6701d, Section 152(c).

It seems to be the sole contention of appellants that since they did not appear either in person or by attorney before the court on any of the subject tickets and made no plea before the court and did not give bail, bond or other security but paid their fines at the window of the Corporation Court clerk, the appellee is not entitled to cancel their licenses. The undisputed record shows from the certificates of the judge of the Corporation Court they pleaded guilty and paid the fines. We hold this is sufficient proof of convictions as contemplated under the law.

We are of the opinion, and so hold, that the matters here involved have been determined by the Supreme Court of this state contrary to the contentions of appellants and are binding on this court. Texas Department of Public Safety v. Richardson, Tex., 384 S.W.2d 128; Texas Department of Public Safety v. Miller, Tex., 386 S.W.2d 760; Texas Department of Public Safety v. Gentry, Tex., 386 S.W.2d 758.

We have carefully considered all of appellants' assignments of error and overruled all of them. Judgment of the trial court is affirmed.

CHAPMAN, Justice (dissenting).

I respectfully disslent. This dissent is in lieu of my dissent to the majority opinion announced on January 24, 1966, and after Motion for Rehearing was acted on by the majority. (All emphases herein are mine.)

The notices or abstracts of convictions in both cases herein show on the face of each to be invalid in that they show: 'Defendant did not appear in open court. Fine paid at window of clerk's office.' Affidavits of the judge of the Corporation Court and affidavits of deputy clerks corroborate the showing on the faces of the abstracts of convictions. The affidavits of the judge show the numbers of the tickets that correspond to the numbers upon which the abstracts of convictions were based. His affidavit says as to each party proceeded against that they were never convicted '* * * in this court, never entered any plea on any of said tickets before the court, never appeared in open court either in person or by attorney on said tickets, and never forfeited bail or bond or other security as a result of said tickets.'

The majority opinion states: 'The undisputed record shows from the certificates of the judge of the Corporation Court they pleaded guilty and paid the fines.'

I have to respectfully disagree with my associates that the statement just quoted is supported by the record. This is a summary judgment proceeding and the record is limited to those components of summary judgment proceedings provided for in Rule 166-A, V.A.T.R., enumerated in Section (c) of said rule; i. e., the pleadings, depositions, and admissions on file, together with the affidavits, if any. I have searched the entire record and I have to say, with all due respect to the above quote from the majority opinion, that the record does not support such statement.

The only documentary evidence offered on the motion of appellee for summary judgment are some instruments denoted 'Notice of Conviction.' Such instruments nowhere show that appellants ever appeared before any magistrate or ever pleaded guilty or nolo contendere to anyone in open court. As to appellant Crowe, only one of the five notices indicates a plea of guilty in the space provided for showing the type plea made. Two show nolo contendere, two are blank, and one shows a plea of guilty. As to appellant Wallis, three show pleas of nolo contendere and three pleas of guilty. Therefore, these summary judgment components show on their faces there were not four valid convictions against either appellant, no pleas or convictions having been perfected under Article 518, C.C.P., as amended Acts 1959, 56th Legislature, p. 257, Ch. 149, Sec. 5. As to appellant Crowe, the abstracts of convictions show on their faces there were not four valid pleas of any type. The abstracts of convictions show in each case: 'Defendant did not appear in open court. Fine paid at window in clerk's office.' So, the abstracts of convictions that show any type of plea contradict themselves. I know of no rule existing at the time these cases were disposed of which permitted a defendant in a misdemeanor to plead guilty or nolo contendere before a clerk, and the Austin Court of Civil Appeals has held that a mailing of a fine to the Corporation Court in the amount shown on the notice is not a legal plea of guilty in the absence of appearance in the court either in person or by attorney. Mooneyhan v Benedict, Tex.Civ.App., 284 S.W.2d 741 (writ ref., N.R.E.).

The summary judgment components upon which the judgments here under attack must depend show upon their faces to be contrary to the affidavit made by Mr. Rigler, the acting Deputy Custodian of the Department of Public Safety, Driver Records Division. He makes affidavit that upon his own personal knowledge the operating records of Charles Thomas Crowe show convictions for the moving violations of the traffic laws of the State of Texas. How could the man possibly know of his own personal knowledge such a fact? The affidavits of two of the clerks of the Corporation Court contradict him and the judge of the court before whom such pleas and convictions would have had to be made contradict him. The notices of convictions, the only documentary evidence of pleas of guilty or nolo contendere, on their very faces contradict him. In the face of the record here it is my opinion if Mr. Rigler attempted to testify personally in open court to such a fact as he swore he had personal knowledge of in his affidavit it would not be admissible if properly challenged unless he testified he was personally present, heard the pleas and heard the sentences. Even then it is doubtful if it would be admissible because the judgments would be the best evidence. Rule 166-A, V.A.T.R., Section (e) provides, inter alia, the affidavit must show affirmatively the affiant is...