Untitled Texas Attorney General Opinion ( 1988 )

A
THE ATTORNEY GENERAL
0~ TEXAS
June 16, 1988
Honorable Hugh Parmer Opinion No. JM-917
Chairman
Intergovernmental Relations Re: Constitutionality of
Committee section E(e) of article
Texas State Senate 6701h, V.T.C.S., requiring
P. 0. BOX 12068 payment of a $10 fee to dis-
Austin, Texas 78711 miss proceedings for failure
to maintain proof of finan-
cial responsibility
(RQ-1427)
Dear Senator Parmer:
The 70th legislature amended the Motor Vehicle
Safety-Responsibility Act to permit courts to charge a ten
dollar-fee before dismissing a criminal charge for failure
to maintain proof of financial responsibility, when the
charge is based solely on a failure to produce suitable
documentary proof of financial responsibility when requested
by a police officer and when adequate proof is produced at a
subsequent hearing on the charge. The fee is unconstitu-
tional.
The Safety-Responsibility Act requires as a condition
for the operation of a motor vehicle that a policy of
automobile liability insurance be available in a specified
amount to insure against potential losses which may arise
out of the operation of the vehicle, unless the vehicle is
exempt, or unless other acceptable arrangements to demon-
strate financial responsibility have been made. V.T.C.S.
art. 6701h, 5 1A. Section 1C of the act makes it a crime to
fail to maintain financial responsibility. V.T.C.S. art.
6701h, § lC(a).
Section 1B of the statute mandates that "every owner
and/or operator in the State of Texas shall be required, as
a condition of driving, to furnish, upon request, evidence
of financial responsibility. . . .'I V.T.C.S. art. 6701h,
5 lB(a). While this section of the statute specifies the
appropriate evidence of financial responsibility that must
be furnished to a police officer who requests it, failure to
P. 4592
Honorable Hugh Parmer - Page 2 (J&f-917)
furnish the evidence is not a crime. In other words,
section 1B of the statute does not create an offense where
the operator of a motor vehicle does not carry documentary
proof of financial responsibility while operating a motor
vehicle. Attorney General Opinion MW-577 (1983). See also
Attorney General Opinion JM-439 (1986).I The legislature
remains free to make the failure to carry proof of financial
responsibility when operating a motor vehicle a crime.
The statute sets out as a *'defense" to a prosecution
for failure to maintain financial responsibility the
production of documentary proof of financial responsibility
that was valid at the time that the "offense is alleged to
have occurred." In such a case, "the charge shall be
dismissed." V.T.C.S. art. 6701h, 5 1D. In other words,
evidence of financial responsibility produced in court
negates any presumption that an offense has been committed.
Thus, if a charge is brought~ for failure to maintain
financial responsibility based on the presumption that a
failure to furnish documentary proof of financial
responsibility is evidence of a failure to maintain the
requisite financial responsibility, and sufficient proof of
financial responsibility is furnished, then the defendant is
innocent.
The 70th legislature amended the statute to require
that persons found innocent in these circumstances
nevertheless must pay a ten dollar fee when the charge is
dismissed. Acts 1987, 70th Leg., ch. 579, 5 1 (eff. Sept.
1, 1987) (amending section lC, article 6701h, V.T.C.S.).
Imposition of such a fee violates due process.
The constitutions of both Texas and the United States
contain provisions requiring that the state provide due
process in administering the criminal laws. Tex. Const.
art. I, §§ 13, 19; U.S. Const., amendments V and XIV.
Action by the state must be consistent with the fundamental
principles of liberty and justice. Dixon v. McMullen, 527
-1. We are aware of a m curiam decision by a single
court of appeals that sanctions the use of a presumption
based on a failure to produce documentary evidence of
financial responsibility as the sole basis for a conviction
for failure to maintain financial responsibility. Coit v.
State, 728 S.W.2d 105 (Tex. App. - Austin 1987, pet. ref'd,
n.r.e.). Your questions do not require us to address the
opinion in this case.
p. 4593
Honorable Hugh Parmer - Page 3 (JM-917)
F.Supp. 711 (D.C.N.D. Tex. 1981). Collecting a fee from a
defendant pronounced innocent by the same statute which
requires the fee departs from the principles of ordered
liberty. A constitution that does not permit ex post facto
laws surely does not permit punishment of an act that is not
made unlawful. See Tex. Const. art. I, 5 16. The law may
not require a defendant to pay a fee in order to obtain the
dismissal of a criminal charge of which the defendant is
innocent.
The requirement that an innocent defendant pay a ten
dollar fee before obtaining the dismissal of an unfounded
criminal charge has been contrary to our notions of due
process and the law of the land since Magna Carta. ("We
will sell to no man . . . either justice or right." Magna
Carta, ch. 40, revrinted in 11 Guide to American Law 252).
See also Tex. Const. art. I, §§ 13, 19.
SUMMARY
Article 6701h, section lC(e) of the Motor
Vehicle Safety-Responsibility Act is uncon-
stitutional. Criminal defendants innocent of
a charge may not be required to pay a fee in
order to have the charge dismissed.
Ll h&c
Very truly yo r ,
A
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 4594