I am a Texas municipal police officer. There is a debate in my department about whether or not someone may be arrested for driving while license invalid if:
1) the license expired prior to the suspension or revocation
2) the person never held a driver's license, but the identification card shows a suspension or revocation.
Any help would be appreciated, especially case law on the subject.

It is their license or "their privilege to drive" that is suspended. So a person with an expired DL or no DL will be prevented from renewing or getting a DL until they clear the suspension.

So, yes a person is DWLI if their license expired and then is suspended.

And yes, if they have no DL at all, but a suspension, they are DWLI.

I recently moved and don't know if the cases I had on his are in a box here, or left behind. Call your local DPS office and ask for their attorney or call the Austin DPS license division at 512-424-5231.

You might contact your local prosecutor. There is a difference of agreement on some aspects of this, and he/she will be the individual(s) responsible for handling the case once you make the arrest.

I am not trying to circumvent the local county attorney. I discussed the issue with our county attorney some time ago, and he agreed that it was DWLI even if the license was expired or the person never had a license. However, we have a new county attorney who is trying to decide what to do with the cases. If I had some case law that I could show him, I am sure he would be willing to look at it.

I believe the difficulty arises because 521.457(a)(2) speaks in terms of driving "during a period that the person's driver's license or privilege is suspended or revoked under any law of this state", yet the statutes such as 521.292 and 521.341 refer only to suspension of "a license". Hence, it is argued that unless the person had a license to suspend he is not subject to subsequent prosecution under 521.457 (even though his privilege to drive might also be considered to be "suspended" by virtue of 521.201(4)). Thus, the offender gets charged only under 521.025. This seems to be the holding in Smith, 895 S.W.2d at 452. But see also Hernandez, 842 S.W.2d at 296.

[This message was edited by Martin Peterson on 03-05-05 at .]

look back in chapter -

definition of license under 521.001(6)

" 'License' means . . . This term includes: . . . (B) the privilege of a person to operate a motor vehicle regardless of whether the person holds a drivers license . . ."

Should apply to "license" wherever it is in Ch. 521.

Excellent point, Ray. I am now convinced there is no problem with going for the more serious charge (although I don't deal with misdemeanors). Maybe the proposal that a car bear DWI license plates should be expanded to include DWLI plates. Seems those plates might appear in great numbers on the streets!

This issue has been a hot topic lately among officers judging by the phone calls we have been receiving: does the DWLI statute apply (Transp. Code 521.457) when the suspension is imposed after the DL has expired or if the person never had a DL in the first place? According to a bunch of old cases including a Court of Criminal Appeals cases(circa 1966), no. In 2005, the San Antonio Court came out with two opinions involving the same individual who had a DL expired for many years and a load of suspensions on said expired DL. The cases are titled Arteaga v. State. Neither are published. In Arteaga, the court says that the state can't suspend what the driver doesn't have. They sped right by the language in 521.001(6) about a "license" including the privilege of operating a motor vehicle in the state of Texas regardless of whether hte person has a driver license.

Anyway, what I have been telling the officers calling me is that we have one court that has said that suspensions imposed after the DL expires or if the person has never had a DL aren't going to trigger a Class B DWLI charge. Instead, the officer would charge the Class C "No DL" charge. Since other jurisdictions haven't addressed the issue since the "license" definition was added in 1983, I recommend they talk to their prosecutor. Any thoughts on this issue. DWLI is obviously high on the radar screen these days with the number of people being suspended for not paying surcharges.

Janette Ansolabehere

Having been the prosecutor on the infamous "Arteaga" cases, and still 100% mystified by the Courts' Opinions, my hope is that a similar scenario will arise in another Appellate District, that Appellate District will let common sense (and the clear language of the statute) prevail, and someone will head to the Supremes. With the 4th Court stating that the Legislature must fix this "problem", and not knowing how the Legislature can make the situation any more clear, we do have a quandry.