DWI and the Occupational Driver’s License

By Judge Mark D. Atkinson

This outline is designed to acquaint attorneys for the petitioner and the State of Texas with the process and principle legal issues related to a hearing conducted to determine the suitability of the petitioner for an occupational driver’s license (ODL). It is instructive in nature,1 and should not be construed to imply a particular outcome before a judicial officer.2 The writer assumes that the petitioner’s license or privilege to drive was automatically suspended as the result of a conviction for an intoxication offense,3 or administrative suspension for refusing4 or failing5 an alcohol breath test.

Jurisdiction
• If the petitioner’s driver’s license or privilege was suspended as a result of a conviction, only the court in which the person was convicted has jurisdiction to hear the ODL petition. This is true regardless of whether the offense is a misdemeanor or felony.6
• If the suspension is administrative, and no conviction results, only a county criminal court at law will hear the petition.7

Client Eligibility For Occupational License
A person whose license is suspended may not be eligible for an ODL immediately upon the effective date of the suspension.
• Some administrative suspensions, referred to as hard suspensions, provide a period of ineligibility.8
• An automatic suspension may also carry a period of ineligibility.9

The Sole Issue: Whether An Essential Need Exists
• The petitioner must make a threshold showing of an essential need10
• Essential Need is statutorily defined.11
• Only after meeting this threshold, may a petitioner demonstrate an actual need.12
• It follows that counsel should be prepared to support or oppose specific hours of and geographic areas of operation.13

Evidence
• Counsel must present proof that petitioner, if granted an ODL, can provide evidence of financial responsibility as required by Chapter 601 of the transportation code.14
• The parties should be prepared to present the Court with a properly authenticated copy of petitioner’s complete driving record.
• Counsel should be prepared to present or refute evidence against granting the petition.15

Filing The Petition Through Final Order
• The petition for an ODL is filed with the public service clerk in the criminal division of the Harris County District Clerk’s Office.16
• At the time the case if filed, the deputy district clerk will provide counsel with a Case Data Sheet. The data sheet should be completed before the hearing. In many courts, failing to complete the data sheet may result in the case being reset to a later date.
• A hearing is set at the time the petition is filed.
• At the conclusion of the hearing, the court prepares the order granting the occupational license.

Supervision of Licensee
• Licensees are supervised by the Harris County Community Supervision and Corrections Department during the term the ODL is in effect.
• Department personnel also perform compliance monitoring of licensees required to install ignition interlock devices on vehicles,17 or enroll in a counseling program.18
• The courts assess a monthly supervision fee of $40.19

Endnotes
1. Code of Judicial Conduct, Canon B.(1) 2. Code of Judicial Conduct, Canon, Canon 3B(10) 3. V.T.C.A. Transportation Code, § 521.341 4. V.T.C.A. Transportation Code, § 724.035(a) 5. V.T.C.A. Transportation Code, § 524.022 6. V.T.C.A. Transportation Code, § 521.242(b) 7. See Filing Orders 8. V.T.C.A. Transportation Code, § 521.251(b) 9. V.T.C.A. Transportation Code, § 521.251(c), (d) 10. V.T.C.A. Transportation Code, § 521.244(b) 11. V.T.C.A. Transportation Code, § 521.241(1) 12. V.T.C.A. Transportation Code, § 521.244(c) 13. V.T.C.A. Transportation Code, § 521.243(b) 14. V.T.C.A. Transportation Code, § 521.244(c)(2) 15. V.T.C.A. Transportation Code, § 521.243(b) 16. The public service department is located on the third floor fo the Harris County Criminal Justice Center, 1201 Franklin Street, Houston, Texas. 17. V.T.C.A. Transportation Code, § 521.246 18. V.T.C.A. Transportation Code, § 521.245 19. V.T.C.A. Government Code, § 76.015

The Hon. Mark D. Atkinson is judge of County Criminal Court at Law No. 13 of Harris County, Texas.

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