IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 756-00

JENNIFER ALLEN, Appellant

v.



THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY


Price, J., filed a concurring opinion.

O P I N I O N



I join the opinion of the Court. I write separately only to express additional reasons in support of the decision today.

Driving Without a (Valid) License

Section 521.021 of the Texas Transportation Code reads, "A person . . . may not operate a motor vehicle on a highway in this state unless the person holds a driver's license under this chapter." (1) However, section 521.021's predecessor, Revised Civil Statutes article 6687b, section 2(a), referred to a person who holds a valid license. See Act of April 14, 1941, 47th Leg., R.S., ch. 173, 1941 Tex. Gen. Laws 245, 247, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, 1, 1995 Tex. Gen. Laws 1025, 1544. Furthermore, the former definitions section of article 6687b, section 1(3)(B), referred to a valid license. (2) See Act of May 29, 1983, 68th Leg., R.S., ch. 345, 1983 Tex. Gen. Laws 1793, 1794, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, 1, 1995 Tex. Gen. Laws 1025, 1543-44. According to the revisor's notes to section 521.021, the term valid was removed from section 521.021 for the same reason it was removed from the definitions section. See Tex. Transp. Code Ann. 521.021 revisor's note (Vernon 1999). The revisor's notes to the definitions section explained that the term valid was omitted as "unnecessary because the word does not add to the clear meaning of the law. For example, a document purporting to be a license is no longer a license if it is expired and is not a license if it is a forgery." Tex. Transp. Code Ann. 521.001 revisor's note (Vernon 1999). When the legislature recodified article 6687b, it expressly stated that it did not intend to make any substantive changes in the law. See Act of May 1, 1995, 74th Leg., R.S., ch.165, 25, 1995 Tex. Gen. Laws 1025, 1871.

When the legislature recodified article 6687b into chapter 521 of the Transportation Code, it intended to maintain the substance of the laws. The term valid in section 521.021 was unnecessary and thus, omitted in the recodification because it was already part of the clear meaning of the term license. See Tex. Transp. Code Ann. 521.001 revisor's note (Vernon 1999); cf. Hicks v. State, 18 S.W.3d 743, 744 (Tex. App.-San Antonio 2000, no pet. h.) (dealing with section 521.021 and noting that it "is well established [that] the State of Texas can and does require a valid driver's license for all persons operating motor vehicles on the roads of the State."). Since no substantive changes were intended to be made to section 521.021, license must mean valid license. Here, the appellant was not operating a motor vehicle with a valid license and thus, violated section 521.021.

Driving While License Invalid

The title of the offense for which the defendant was charged is "driving while license invalid." See Tex. Transp. Code 521.457. However, this code provision deals with licenses that have been made invalid through cancellation under chapter 521; suspension or revocation under chapters 521, 524, and 724 (as well as article 42.12 of the Code of Criminal Procedure and section 106.071 of the Alcoholic Beverages Code); or license expiration during a period of suspension. See Tex. Transp. Code 521.457(a)(1)-(3). The section does not deal with licenses that cannot be classified as cancelled, suspended, or revoked at the time of the offense. See id.

Section 724.035 provides that when a person who is arrested for DWI refuses to give a specimen, the department shall "suspend [his] license to operate a motor vehicle on a public highway for 90 days . . ." Tex. Transp. Code 724.035. The language in this statute is clear; upon refusal to provide a sample, the license is suspended for the definite period of ninety days. Neither section 724.035 nor section 724.046 discuss extending the period of time the license may be suspended beyond the ninety-day period. Because the ninety day suspension-period had ended when the appellant was arrested, her license was not in a state of suspension.

Other jurisdictions have made similar observations while dealing with this issue in their own statutory schemes. (3) In Ennis v. Garrett, 184 S.E.2d 246 (N.C. 1971), the North Carolina Supreme Court had to determine whether failure to pay a $10 restoration fee extended the period of revocation. The relevant North Carolina Statute read, "Any person whose [license] to operate a motor vehicle in this State has been suspended, canceled or revoked pursuant to the provisions of this chapter shall pay a restoration fee of ten dollars to the Department prior to the issuance to such person of a new [license] or the restoration of such [license], such restoration fee shall be paid to the Department . . . ." See id. at 288. The Court held that failure to pay the fee did not extend the period of revocation. The statute "does not expressly extend the period of a suspension, cancellation or revocation. On its face, it merely provides for the payment of a fee for an administrative act by the Department." Id.; see also Frink v. Indiana, 568 N.E.2d 535, 538 (Ind. 1991) (finding the language "no person whose operating privileges have been suspended . . . shall have those privileges restored until a reinstatement fee has been paid," did not extend the initial period of suspension until the fee was paid); State v. Resendiz-Fortanel, 959 P.2d 845, 848 (Idaho Ct. App. 1998) (agreeing with the conclusion that a period of suspension or revocation is not extended by a driver's failure to apply for or pay fees associated with the reinstatement, but holding the license remains suspended, by the express terms of the Idaho statute, for failure to give proof of financial responsibility); but see People v. Martinez, 705 N.E.2d 65, 67 (Ill. 1998) (finding that after revision, the language that "Full driving privileges may not be restored until all applicable fees . . . have been paid to the Secretary of State," creates a prerequisite to ending suspension).

If the legislature wanted the suspension period to continue beyond the ninety-day period required under section 724.035, then it could have said so explicitly. For example, other States provide a model for expressing the intent that the suspension period continues until the fine is paid. Montana law provides, "[A] driver's license that has been suspended or revoked under 61-5-205 [conviction or bail forfeiture for certain crimes] or 61-8-402 [refusal to submit to breath and blood tests] must remain suspended or revoked until the driver has paid to the department a fee of $100 . . . ." Mont. Code Ann. 61-2-107(1) (2000). Similarly, North Dakota law provides, "When the period of suspension imposed under this title ceases, the operator's license or driving privilege that has been suspended may not be returned or reinstated, and remains under suspension, until the operator pays to the director a reinstatement fee . . . ." N.D. Cent. Code 39-06-35 (2000).

With these comments, I join the opinion of the Court.



Delivered June 27, 2001

Publish.

1. Unless otherwise noted, all references to sections or chapters will refer to the Texas Transportation Code.

2. The original act read, "No person, except those hereinafter expressly exempted, shall drive any motor vehicle upon a highway in this State unless such person has a valid license as an operator, a commercial operator, or a chauffeur under the provisions of the act." Act of April 14, 1941, 47th Leg., R.S., ch. 173, 1941 Tex. Gen. Laws 245, 247, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, 1, 1995 Tex. Gen. Laws 1025, 1544.

3. Although there are differences in the statutory schemes between Texas and other jurisdictions, we may still glean some guidance from how the issue is treated in other States.