Gentry v. Texas Dept. of Public Safety, 14303

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: COLEMAN
• Citation: 379 S.W.2d 114
• Parties: Farris GENTRY, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Docket Number: No. 14303,14303
• Decision Date: 19 March 1964

Page 114

379 S.W.2d 114 Farris GENTRY, Appellant,
v.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee. No. 14303. Court of Civil Appeals of Texas, Houston.
March 19, 1964.
Rehearing Denied April 23, 1964.
Second Rehearing Denied May 28, 1964.

Donald Lasof, Charles M. Coussons, Jr., Houston, for appellant.

Joe Resweber, County Atty., Charles J. Wilson, Asst. County Atty., Houston, For appellee.

COLEMAN, Justice.

This is an appeal from a summary judgment granted in a driver's license suspension case.

Farris Gentry, appellant, was adjudicated to be an habitual violator of the traffic laws

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in a hearing held in Corporation Court Number 3 of the City of Houston, Texas, under the authority of Article 6687b, Vernon's Annotated Texas Statutes. Pursuant to said adjudication the Texas Department of Public Safety ordered appellant's driver's license suspended for a period of three months. Appellant appealed from the adjudication and suspension order to the County Civil Court at Law No. 1 of Harris County, Texas.

Appellee filed its motion for summary judgment and supported it by an affidavit of the Deputy Custodian of Driver Records, Texas Department of Public Safety, to the effect that the records of the Department reflect that appellant has been convicted of four specified moving violations in a consecutive period of three months, setting out the date of each violation.

Appellant filed a controverting affidavit reading as follows:

'I, Farris Gentry, plaintiff, swear to the following:

'I am not an 'habitual violator' as defined in Article 6687 b, Vernon's Annotated Texas Civil Statutes. I do not have four or more convictions arising out of different transactions in a consecutive period of twelve months, under the terms of Article 6687 b, Vernon's Annotated Texas Civil Statutes. I do not have seven or more convictions arising out of different transactions within a period of twenty-four months, under the terms of Article 6687 b, Vernon's annotated Texas Civil Statutes.

'I, Farris Gentry, have never been convicted for any offense arising out of a moving violation which occurred on or about April 48 1961, as the term 'conviction' is defined in Article 6687 b, Section 25, Paragraph (c). I never appeared in open court in connection with said offense and conviction, either in person or by attorney. There has been no forfeiture of bail or collateral deposited to secure my appearance in court in connection with said alleged offense and conviction.

'I, Farris Gentry, have read the foregoing Affidavit, and each and every statement made therein is true and correct.'

Based on the pleadings and affidavits, the trial court granted the motion for summary judgment. It is appellant's contention that his affidavit raised questions of fact which could be determined only at a trial on the merits.

Article 6687b, Section 25, Paragraph (c) reads as follows:

'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 a defendant's appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.'

Appellee contends that the first paragraph of appellant's affidavit states a conclusion of law and is insufficient for that reason. Appellant has not denied specifically that judgments, finding him guilty of the offenses charged, were rendered. He has not specifically raised a question of mistaken identity. In the absence of such an allegation it would appeal that the judgment entered would be the best evidence of the fact of conviction vel non. In order to raise an issue of fact in a summary judgment proceeding the affidavit relied upon must contain statements of fact shown to be within the knowledge of affiant and which would be admissible in evidence at a trial on the merits.

In the second paragraph of his affidavit appellant alleges facts which, if true, would demonstrate that the judgments of conviction entered against him were void. The affidavit of appellee states that appellant was 'finally convicted' of the offenses set out and, in each case, paid a fine. The question

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is whether a judgment in a criminal case is valid where the defendant did not appear in court either in person or by attorney.

The Court of Civil Appeals at Dallas in the case of Miller v. Texas Department of Public Safety, 375 S.W.2d 468, where similar affidavits were under consideration, stated:

'If it is the contention of appellee that appellant entered a plea of guilty the provisions of Art. 518, Vernon's Ann.C.C.P. are not satisfied. There it is provided that a plea of guilty in a misdemeanor case may be made either by the defendant or his counsel in open court. Art. 580 of Vernon's Ann.C.C.P. provides that in all prosecutions for misdemeanors when the punishment is imprisonment in jail the defendant must be personally present, but Art. 581, Vernon's Ann.C.C.P. provides that in 'other misdemeanor cases' the defendant may, by consent of the state's attorney, appear by counsel and the trial may proceed without his personal presence. While Art. 11 of Vernon's Ann.C.C.P. permits the defendant in a criminal prosecution to waive any rights secured him by law except the right of trial by jury in a felony case, we find no evidence or contention of waiver in this case, and the affidavit of appellant would negative the idea of waiver of appearance either in person or by attorney. See also Texas Department of Public Safety v. Williams, Tex.Civ.App., 356 S.W.2d 848.

'This is an appeal from a summary judgment and in reviewing the judgment we cannot indulge any presumption in favor of the trial court's action. We must view the evidence in the light most favorable to the appellant and resolve all conflicts in his favor. Torres v. Ohio Casualty Ins. Co., Tex.Civ.App., 296 S.W.2d 561; Schepps v. American District Telegraph Co. of Texas,...