Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
March 16. 1984
JIM MATTOX
Attorney General
Supreme Court Building James B. Adams Opinion No. JM-138
P. 0. BOX 12548 Director
Austin, TX. 78711. 2545 Texas Department of Public Safety Re: Authority to enforce
512/475-2501
5805 N. Lamar Boulevard criminal penalties pursuant
Telex 9101874-1367
Telecopier 512/475-0266
Austin, Texas 78773 to article 6701d. V.T.C.S..
requiring vehicle emission
inspectinn and maintenance
714 Jackson, Suite 700 programs for vehicles regis-~
Dallas, TX. 75202.4506
2141742.9944
tered in certain counties
Dear Colonel Adams:
4824 Alberta Ave.. Suite 160
El Paso, TX. 799052793 You have requested an opinion regarding the parameter motor
9151533.3464
vehicle emissions inspection program required by a recent amendment to
P article 6701d, V.T.C.S. You ask:
1001 Texas, Suite 70-I
Houston, TX. 77002-3111 1. Can the criminal penalties of the motor
713/223-5886 vehicle inspection law be enforced against a
person who operates a motor vehicle which has not
806 Broadway. Suite 312
been inspected according to rules adopted by the
Lubbock, TX. 79401.3479 Department of Public Safety (DPS)?
SOS,747-5238
2. Can such rules be limited to apply only to
vehicles operated in a designated county?
4309 N. Tenth. Suite S
McAllen, TX. 78501.16R5
5121682.4547 Article XV of the Uniform Act Regulating Traffic on Highways,
article 6701d. V.T.C.S., deals with inspection of vehicles. Section
140 provides for compulsory inspection of designated motor vehicle
200 Main Plaza, Suite 400
equipment including the exhaust emission system. The statute provides
San Antonio, TX. 79205.2797
512/225-4191
that the Department of Public Safety [hereafter DPS] "shall establish
uniform standards of safety" as to items requiring inspection under
article 6701d, section 140, 142(a), V.T.C.S. It further provides that
An Equal Opportunity/ the DPS may adopt rules for administration and enforcement of the
Affirmative Action Employw motor vehicle inspection requirement. _Id. §142(c). Section 141(d)
prohibits an inspection station from issuing a certificate of
inspection until a vehicle is found to be
in proper and safe condition and to comply with
the uniform standards of safety, inspection rules
and regulations, and laws of this state.
p. 587
Colonel James B. Adams - Page 2 (JM-138)
These requirements clearly aeeb to the safety inspection
described in section 140(a). The legislature has explicitly required
that certain equipment be inspected, leaving only the uniform
standards and method of enforcement to the rulemaking power of the
DPS.
The Sixty-eighth Legisl.ature enacted Senate Bill No. 1205 to
amend section 142 of article 6701d granting additional authority and
responsibility to DPS by adding the following language:
(d) The Public Safety Commission shall
establish a parameter motor vehicle emissions
inspection and maintenance program for vehicles
registered in any county in this state which does
not meet National Ambient Air Quality Standards
and for which the Texas Air Control Board has
adopted a resolution requesting the department to
institute such a program.
(e) The Public Safety Commission shall adopt
standards for inspection criteria applicable to a
county in which such a program, pursuant to
Subsection (d) of this section, is established.
(f) The department may issue a unique
inspection certificate for those vehicles
inspected pursuant to Subsection (d) of this
section.
(g) The Public Safety Commission may establish
by rule an inspection fee in addition to the fee
for compulsory inspection as provided by
Subsection (c) of Section 141 of this Act for
those vehicles inspected pursuant to Subsection
(d) of this sectiou, and such additional fee shall
not exceed $5.
(h) A motor vehicle inspection and maintenance
program instituted under this Act shall be
terminated upon discontinuation of federal
requirements for such action.
Acts 1983, 68th Leg., ch. 662, at 4183. 4184.
Your request raises the issue of whether the DPS has authority to
adopt rules which define the criminal.offense prescribed by sections
140(g) and 141(d) of article 6701(d). We understand your first
question to be whether the operator of a vehicle on the highways of
this state is subject to the misdemeanor provisions of section 143 if
p. 588
Colonel James B. Adams - Page 3 (JM-138)
the vehicle does not display a valid inspection certificate issued
pursuant to standards established by the DPS, including those
standards established pursuant to section 142(d) concerning vehicle
emission controls. We hold that such criminal liability under the
statute does exist.
There is a constitutional prohibition against delegation of the
legislative function. TSX. Const. art. II, El. However, it is
well-established that
a legislative body may, after declaring a policy
and fixing a primary standard, confer upon
executive or administrative officers the power to
fill up the details, by prescribing rules and
regulations to promote the purpose and spirit of
the legislation and to carry it into effect.
Williams v. State, 176 S.W.Zd 177, 183 (Tex. Crim. App. 1943). The
legislature may not delegate the power to make a law which prescribes
a penalty, but it may authorize a commission
to prescribe duties or ascertain conditions upon
P which an existing law may operate in imposing a
penalty and in effectuating the purpose designed
in enacting the law.
Tuttle v. Wood, 35 S.W.Zd 1061, 1065 (Tex. Civ. App. - San Antonio
1930, writ ref'd). Thus, if the legislature in enacting Senate Bill
No. 1205 has declared a policy and fixed a primary standard to serve
as existing law for the imposition of a penalty, section 142(e) is a
valid delegation of rulemaking authority and the parameter motor
vehicle inspection and maintenance program is enforceable. We do not
find the delegation to the DPS to be an impermissible delegation of
legislative authority.
The legislature, not the DPS, has clearly declared that it is an
offense against the laws of this state to operate a motor vehicle on
the highways of the state without a valid inspection certificate
issued pursuant to a required inspection. Article 6701(d) provides in
sections 140(e) and (g) and 141(d) as follows:
(e) . . . no person shall operate on the
highways of the state any motor vehicle registered
in this state unless a valid certificate of
inspection is displayed thereon as required by
this section. (Emphasis added).
- (g) Any person operating a vehicle on the
highways of this state . . . in violation of the
p. 589
Colonel James B. Adams - Page 4 (JM-138)
provisions of this Act, or without displaying the
valid inspection certificate . . . is guilty of a
misdemeanor . . . .
(d) . . . No person shall display or cause or
permit to be displayed any inspection certificate
knowing the same to be . . . issued . . . without
the required inspection having been made.
(Emphasis added).
The legislature specifically identified the equipment on a motor
vehicle which must be inspected. See 8140(a). That equipment
includes the exhaust emission system.Furthermore, the legislature
has specifically provided that only those items of equipment
identified in section 140 can be inspected as a prerequisite for the
issuance of an inspection certificate. -Id.
Prior to the adoption of Senate Bill No. 1205, section 142
required the DPS to establish uniform standards with respect to the
motor vehicle equipment, including an exhaust emission system,
required to be inspected by section 140. Section 142(c) gave the DPS
authority to adopt rules necessary for administration and enforcement
of the vehicle inspection program. Senate Bill No. 1205, amending
section 142, was an expansion of the DPS's responsibility and
authority. Senate Bill No. 1205 requires the DPS to establish a
"parameter" motor vehicle inspection and maintenance program for
vehicles registered in certain counties which had particularly
grievous air quality problems.
We find that the legislature has sufficiently defined the conduct
which is subject to the misdemeanor provisions of section 143, and
that the powers given to the DPS to adopt uniform standards for
vehicle equipment pursuant to section 142(a) and unique standards for
particular areas under 142(d) are not an impermissible delegation of
legislative function.
Your second question asks whether DPS rules defining the standard
to be applied in vehicle inspections may be limited to vehicles
operated in a designated county. Prior to amendment by Senate Bill
No. 1205, section 142 required that inspection standards be uniform.
Senate Bill No. 1205 authorized the DPS to establish unique standards
concerning vehicle emissions and issue s unique inspection certificate
for vehicles registered in a particular county with severe air
pollution problems. We find that rules which apply to vehicles
operated in such counties, but not registered therein, would exceed
the authority granted by Senate Bill No. 1205.
However, rules which apply solely to vehicles whj~ch are both
registered in and operated in such county may be permissible. In
p. 590
Colonel James B. Adams - Page 5 (JM-138)
construing statutes, courts look diligently for the intent of the
legislature, keeping in view at all times the old law, the evil, and
the remedy. If the department finds that vehicles registered in a
county with air pollution problems but not operated in that county
would not contribute to the evil to be remedied, it may exclude such
vehicles from the uniaue testing program required by Senate Bill No.
1205.
SUMMARY
The Department of Public Safety may enforce
criminal penalties against a person who operates a
..- .
motor vehicle which has not been inspected
according to rules adopted pursuant to Senate Bill
NO. 1205 of the Sixty-eighth Legislature. The
rules may be limited to apply only to vehicles
registered and operated in designated counties.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Mathews
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Mathews
Jim Moellinger
Nancy Sutton
p. 591