¶1dissenting.
¶2A jury would not be authorized to acquit or to assess a lesser fine or shorter jail term because the defendant would automatically lose his license to drive a motor vehicle.
¶3Aside from the punishment by fine and jail term which the court explained to the jury, other effects of a conviction were not material and were properly excluded.
¶4I respectfully dissent.
¶5ON STATE’S MOTION FOR REHEARING
¶6In a scholarly motion for rehearing and in argument presented by Jim Bowie of the district attorney’s staff, the state has helped the writer reappraise the holding in Taylor v. State, 151 Texas Cr. Rep. 568, 209 S.W. 2d 191, relied upon by the majority on original submission. In the original opinion in Taylor, the court held that the question of revocation or suspension was not a matter for the jury’s consideration and therefore that it was not proper for the court to mention the same in his charge.
¶7*381On rehearing, the court made the pronouncement quoted in our original opinion, but this was in connection with certain constitutional challenges hurled at Section 24, Article 6687b. Since such challenges were not stated forth in the opinion, the writer is unable to properly appraise the language quoted, but does observe that the original holding was not altered and the court remained committed to the proposition that the question of revocation was not a matter for the jury’s consideration.
¶8I now approach the problem anew.
¶9Shall counsel in the presentation of his case and in argument be allowed to allude to the automatic suspension of the accused’s driver’s license as a consequence of conviction? In order to authorize the same, it must be part of the “punishment” affixed to such offense.
¶10Article I, V.A.P.C., says that the design of the Code is, in part, “to affix to each offense its proper punishment.”
¶11Article 47, supra, provides, in part: “An offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this ‘Code’.” It should be borne in mind that Article 802 V.A.P.C., which denounces driving while intoxicated, does not mention suspension of the license and that Section 24 of Article 6637b, V.A.C.S., is not a part of the Penal Code.
¶12Article 48, supra, provides, in part: “The punishment incurred for offenses under this Code are … (5) Forfeiture of civil or political rights.” (Italics mine).
¶13The question then poses itself: Is the right to drive a civil right or it a privilege?
¶14The Texas Supreme Court in Gillaspie v. Department of Public Safety, 259 S.W. 2d 177, speaking through Justice Smedley, has held that it is a privilege and not a right.
¶15In further support of such holding, if any be needed, see Tatum v. Department of Public Safety, 241 S.W. 2d 167; Department of Public Safety v. Robertson, 203 S.W. 2d 950; and Texas Department of Public Safety v. Jackson, 272 S.W. 2d 577.
¶16We have been cited a number of cases from other jurisdictions which hold that a revocation of a license is not to be con*382sidered as a part of punishment. See Prichard v. Battle, 17 S.E. 2d 393; Davis v. Commonwealth, 75 Va. 944; Hawker v. New York, 170 U.S. 189, 18 Sup. Ct. 573, 42 L. ed. 1002; State v. Harris, 52 N.W. 387; and Norfolk & Portsmouth Bar Assn. v. Drewry, 172 S.E. 282.
¶17The question of whether the revocation of a license to drive is part of the punishment upon conviction for driving while intoxicated has been decided favorably to the state’s contention that revocations and suspensions are not intended as punishment but are designed solely for the protection of the public in the use of the highways in Commonwealth v. Harris, 128 S.W. 2d 579; Commonwealth v. Ellett, 4 S.E. 2d 762; Thompson v. Thompson, 78 N.W. 2d 395; and Butler v. Commonwealth, 53 S.E. 2d 152.
¶18In fact, this court in Gilbert v. State, 152 Texas Cr. Rep. 200, 212 S.W. 2d 182, said:
¶19“… Appellant’s driver’s license is automatically suspended by law upon such conviction, it being a matter which is beyond the control of both the trial court and the jury …
¶20To recapitulate: Taylor v. State, supra, holds that the question of revocation of the driver’s license shall not be submitted to the jury in the court’s charge. Beach v. State, 150 Texas Cr. Rep. 193, 199 S.W. 2d 1020, holds that revocation of the driver’s license is not a proper part of the verdict. And McIntire v. State, 135 Texas Cr. Rep. 285, 117 S.W. 2d 1093, holds that revocation of the driver’s license is not a proper part of the judgment.
¶21Still another case comes to our attention. A very kindred question was before this court in Johnson v. State, 116 Texas Cr. Rep. 185, 31 S.W. 2d 1045.
¶22Johnson was charged with the felony offense of driving while intoxicated, and the state made a motion, such as was made in this case, and secured a ruling from the court prohibiting appellant’s counsel from alluding to the fact that a conviction in the case then on trial would result in a revocation of a suspended sentence which the accused had theretofore received. This court upheld the trial court and said, in effect, that the ancillary results of a conviction were not a part of the punishment proscribed by the legislature to the offense then on trial, and therefore were not proper matters for the jury’s consideration.
¶23*383Then, if the question of a revocation is not a part of the pun-Iishment and is not a proper part of the charge, verdict or judgment, it is not a question for the jury’s consideration, and the original opinion of the majority in the instant case was unsound.
¶24The state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment is now affirmed.
¶25dissenting on State’s Motion For Rehearing.
¶26The statement by my brethren that taking from one the right or privilege of driving and operating his automobile over the public highways is not punishment to him is, to me, absurd and utterly without foundation. It is against the express holdings of this court.
¶27Sight should not be lost of the question that is before this court. No- one is contending, here, that the trial court should have submitted to the jury the question of revocation. No one is contending that the jury’s verdict did not automatically suspend the license upon a finding of guilt.
¶28This case arose out of the trial court’s ruling, at the motion of the state, that at no time during the trial of the case would appellant or his counsel be permitted to call to the attention of the jury or in any manner suggest to them that in the event they found appellant guilty their verdict would automatically suspend his license to drive an automobile, which punishment would be in addition to that which the jury fixed in their verdict.
¶29What reason could possibly exist to keep that information from the jury? Why would the state object to the jury’s having this information? The answer is apparent, for without such information the jury might inflict a greater punishment than they would if they knew that in addition to the punishment they assessed they were also taking from him the privilege of driving his automobile for a period of six months.
¶30There may be some excuse for a prosecuting attorney, in his zeal to secure at the hands of the jury greater punishment, to keep from the jury facts or information that would tend to lessen the punishment inflicted by them, but there is no excuse or reason for a trial court or this court to permit such a thing to happen.'
¶31The trial judge is not concerned with the amount of punish*384ment the jury inflict. It is his duty to see that the accused receives a fair trial under the law. The same applies to this court.
¶32I can not conceive how that can be accomplished by wilfully and deliberately withholding from the jury facts or information which have a legitimate bearing upon the penalty which the jury might assess in the event of a conviction.
¶33The great heritage of the American citizen is the right of trial by jury. That right, in this state, entails having the jury determine guilt or innocence and, in the event of guilt, to fix the punishment for the crime committed.
¶34When facts relevant to the performance by the jury of that duty are deliberately kept from them, trial by jury is denied.
¶35Give the jury the facts!
¶36I will suppress my desire to answer in detail the position taken in the majority opinion, but I will make this observation:
¶37If automatic cancellation of the license to drive is not a part of the punishment inflicted in this case, then what right does a criminal court have to determine or to enforce it?
¶38The holding of my brethren, here, that automatic suspension has no place in a criminal case destroys all the law with reference thereto, because if automatic suspension upon conviction for crime is a civil matter only, then it must be determined in a civil proceeding.
¶39I submit that the original opinion in this case was right and proper.
¶40I dissent.