Simmons v. State

• Decision Date: 16 July 1969
• Docket Number: No. 42234,42234
• Citation: 443 S.W.2d 852
• Parties: Walter Clayton SIMMONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 852

443 S.W.2d 852

Walter Clayton SIMMONS, Appellant, v.The STATE of Texas, Appellee.

No. 42234.

Court of Criminal Appeals of Texas.

July 16, 1969.

E. Brice Cunningham, Dallas, for appellant.

Henry Wade, Dist. Atty., Jon Sparling, Bill Hill, Malcolm Dade, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

Appellant was convicted under Article 6687b, Vernon's Ann.Tex.Civ.St., of operating a motor vehicle upon a public highway while his operator's license was suspended and punishment was assessed at a fine of $250 and 3 months in jail.

The appellant complains that the trial court erred in convicting him of driving while his license was suspended in that the appellant received no notice of the administrative hearing resulting in the suspension of his driver's license as is required by Article 6687b, Sec. 22(a), supra.

Article 6687b, Section 22(a), supra, provides, in part:

'* * * Such hearing shall be had not less than ten (10) days after notification to the licensee or operator under any of the provisions of this Section, and upon charges in writing a copy of which shall be given to said operator or licensee not less than ten (10) days before said hearing * * * Notice by registered mail to address shown on the license of licensee shall constitute service for the purpose of this section.'

Article 29c, V.A.T.C.S., provides, in part:

'All persons, firms * * * municipalities, counties and other political subdivisions of the State * * * are hereby authorized and empowered to use certified mail with return receipt requested, in lieu of registered mail in all instances where registered mail has heretofore been required or may hereafter be authorized by law.The mailing of any required notice of hearing * * * by such certified mail shall have the same legal effect as if sent by registered mail, provided receipt for such certified mail is validated by official post office postmark * * *'

The letter giving notice of the administrative hearing and the envelope in which it was mailed was obtained from the state's file and introduced as Defendant's ExhibitNo. 1.It reflects that it was sent by certified mail to the address listed on the appellant's driver's license, and was returned to the sender marked, 'Moved, left no address.'The record does not reflect that a signed post office receipt showing delivery of the notice of hearing was returned to the Department of Public Safety, and the appellant did not appear or waive his appearance at the administrative hearing.

In Podany v. State, 172 Tex.Cr.R. 451, 358 S.W.2d 118, the court in interpreting Article 29c, V.A.T.C.S., said:

'Art. 29c, V.A.C.S., provides for the use of certified mail 'with return receipt requested' in lieu of registered mail, and provides that the mailing of any required notice by such certified mail shall have the same legal effect as if sent by registered mail, provided receipt for such certified mail is validated by official post office postmark.

'We understand that the receipt referred to and required is the return receipt to be signed upon delivery of the certified mail.To hold otherwise would be to disregard the proviso.'(Emphasis added)

Article 6687b, supra, does not authorize suspension of a driver's license without notice and hearing except as provided by Section 24 which is not applicable here.Cathy v. State, Tex.Cr.App., 402 S.W.2d 743;Texas Department of Public Safety v. Hamilton, 157 Tex. 616, 306 S.W.2d 712.

An administrative hearing may not be held under Article 6687b, Section 22(a), supra, as modified byArticle 29c, when the licensee does not appear at the hearing and where service is sought by certified mail and there is no signed post office receipt showing delivery of the notice of hearing, even though the notice is shown to have been sent by certified mail to the address shown on his license.

Tex.Atty.Gen. Op. No. M--239(May 23, 1968) states:

'It is concluded that if the licensee does not appear at the hearing and the Department attempts notice by certified mail, it must produce the signed return receipt before the Justice of the Peace can proceed with the hearing.To do otherwise would be to disregard the notice provisions of Article 6687b, Section 22(a).

'It is also the opinion of this office that a suspension resulting from a hearing where the licensee was given no notice of the hearing would not be given any validity by the licensee subsequently receiving actual or constructive notice of the suspension.

'Article 6687b, Section 22(c), provides, in part:

'* * * If any licensee Who is a party to such final ruling and decision of the Department fails within thirty (30) days to institute or prosecute a suit to set such suspensions aside, then said final ruling and decision of the Department shall be binding upon all Parties thereto.'(Emphasis added)

'Jurisdiction of the person of a defendant is acquired by service of such process as the law provides, or by his voluntary appearance, or by his waiver of service.Stanley v. Columbus State Bank, 258 S.W.2d 840(Tex.Civ.App.1953, error ref. n.r.e.).As jurisdiction is the power of a court to hear and determine a controversy between parties to a suit, the failure of the court to acquire personal jurisdiction of the...