Untitled Texas Attorney General Opinion ( 1989 )

THE ATTORNEY GENERAL
OF TEXAS
December 28, 1989
Honorable Mike Driscoll Opinion NO. JM-1126
Harris County Attorney
1001 Preston, Suite 634 Re: Duty of a county clerk to
Houston, Texas 77002 notify the Department of Public
Safety about the mental compe-
tence of a person holding a
driver's license (RQ-1842)
Dear Mr. Driscoll:
You ask four questions concerning the duty of a county
clerk to notify the Department of Public Safety when a
person holding a driver's license is found to be mentally
incompetent. They are:
1. Is the County Clerk required to notify
the Department of Public Safety of court
findings that a person holding a driver's
license is mentally incompetent?
2. Is the County Clerk required to notify
the Department of Public Safety of court
findings that a person holding a driver's
license is mentally incompetent regardless of
the nature of the proceeding?
3. Is the County Clerk required to notify
the Department of Public Safety of court
findings that a person is mentally incompe-
tent, but are silent as to whether the person
holds a driver's license?
4. Is it the duty of the County Clerk to
determine whether a person found to be men-
tally incompetent holds a driver's license
when the court findings are silent on this
issue?
Article 6687b, section 4, V.T.C.S., specifies that
drivers' licenses are not to be issued to certain persons.
Among them are persons "shown to be addicted to the use of
P. 5926
Honorable Mike Driscoll : Page 2 (JM-1126)
alcohol or a controlled substance," or persons who have been
"adjudged mentally incompetentl' by a court of competent
jurisdiction and not restored to competency. Id. subsets.
(4), (5). Section 30 of article 668733 provides:
It
9s a driver of a motor vehicle who is
addicted to the use of alcohol or a control-
released from a hospital for the mentally
incompetent upon a certificate of the
superintendent that such person is competent.
A finding that a person is addicted to the
use of alcohol or a controlled substance must
be based on a determination by the court that
the person is psychologically or physiologi-
cally dependent on alcohol or a controlled
substance. Anv findinu bv anv court of
comnetent iurisdiction that anv person
> oldin mental1
JJ corn etent 0
or a controlled substance shall carrv with it
a revocation of the driver's license. It
d
shall be the ut o
in which such findinas are made. to certifv
e within ten (10) days.
(Emphasis added.)
In our opinion, the driver's license of a person
adjudged (found) mentally incompetent is automatically
revoked by operation of section 30, whether or not the
adjudicating court makes a specific finding that the person
holds a driver's license.
The initial sentence of section 30 declares that it is
unlawful for any person who has been adjudged mentally
incompetent to act as the driver of a motor vehicle in this
state. Clearly, the criminality of that act is not
dependent upon an additional prior adjudication that the
actor held a revoked driver's license, and it is incongruous
to suppose that the legislature intended automatic revoca-
tion for only licenses of adjudicated incompetents who are
also shown by evidence produced in court (found) to possess
licenses. The object of section 30 is to protect the public
from mentally incompetent drivers.
p. 5927
Honorable Mike Driscoll - Page 3 (JM-1126)
We think that the only "finding" section 30 of article
668733 contemplates as a prerequisite to automatic revocation
of any driver‘s license held by the subject of the proceed-
ings is a finding of mental incompetence. From that
finding, ins0 facto, other consequences flow by operation of
law, just as they do, pursuant to section 24 of article
6687b, when a person is finally convicted of driving while
intoxicated in violation of article 67011-1, V.T.C.S. cf.
Davison v. State, 313 S.W.2d 883 (Tex. Crim. App. 1958);
Gaddv v. Texas Den/t of Pub. Safety, 380 S.W.2d 783 (Tex.
Civ. App. - Eastland 1964, no writ) (automatic suspension
operative upon conviction without regard to whether specific
provision therefor is in judgment).
Unless some other law intervenes , ,inasmuch as section
30 of article 6687b expressly requires the clerks of court
to certify to the Department of Public Safety any findings
of any court of competent jurisdiction that persons holding
drivers' licenses are mentally incompetent, it follows -- in
answer to your first two questions -- that the county clerk
is required to notify the department of such findings re-
gardless of the nature of the proceedings.
Our attention has been directed to article 5547-12,
V.T.C.S., which reads:
Each and every writing, including but not
limited to docket books, indices, judgment
books, etc., in a mentally ill docket in the
office of the county clerk is hereby declared
to be a public record of a private nature
._
which mav,be used, insoected. or CODleCi -
only
bv a written order of the county iudae, a
judge of a court having probate jurisdiction,
or a district judge of the county in which
the docket is located. No such order shall
issue until the issuina iudae has entered
findinas that said use, inspection, or
copying is justified and in the public
interest or that such release is to a
patient, former patient, or to a person
designated by the patient upon signed and
written consent for the release of such
information by the allegedly mentally ill
person; and that the reasons for such use,
inspection, or copying fall within the
statutory exemptions to confidentially of
mental health information or physician/pa-
tient privilege where the disclosure of such
P. 5928
Honorable Mike Driscoll - Page 4 (JM-1126)
information is in issue. Such records shall
be released to any attorney representing the
proposed patient in a proceeding held under
this code. Nothing herein shall prevent
access by law enforcement personnel to
necessary information in execution of a writ
or warrant. (Emphasis added.)
Article 5547-12 must be read in pari materi with
section 30 of article 668713, V.T.C.S. See 67 Tex. Jur. 3d
Statutes § 136, at 747. Since the legislature has deter-
mined, by enacting section 30 of article 6687b, that
certification by the clerk to the Department of Public
Safety of findings of mental incompetence is in the public
interest, it would be contrary to the plain meaning of the
statute and an abuse of discretion for a court to find
otherwise. See Bullock v. Bins0 Kina Co., 714 S.W.2d 320
(Tex. App. - Austin 1986, writ ref'd n.r.e.).
There is no necessity of a separate "finding" by the
court, pursuant to article 5547-12, that furnishing such
infornation to the Department of Public Safety is i;: the
public interest because a finding of mental incompetency, by
reason of article 6687b, section 30, necessarily includes a
finding that it is in the public interest to supply the
information to the Department of Public Safety. See Morris
..----
v. Short, 151 S.W. 633 (Tex. Civ. App. - Texarkan'a 1912,
writ ref'd). Nor, in our opinion, is an order by the judge
necessary to authorize transmission of the informati.on by
the clerk to the Department of Public Safety. The special
provisions of article 668713, section 30, are to be regarded
as furnishing an exception to the general requirements of
article 5547-12 insofar as they concern the use, inspection,
and copying of such records. -See 67 Tex. Jur. 3d Statutes
$9: 126, 136 at 719, 747.
We therefore advise that the county clerk is required
to notify t.he Department of Public Safety of any finding bY
ain
y court of competent jurisdiction that a persor; i::
mentally in>ompetent, whether or not the court's findings or
iudgment recite that the person does (or does not) hold a
driver/s license. The clerk has no duty to deterni~ne
whether the person adjudged mentally incompetent holds a
driver's license when court findings are silent about the
matter: the clerk's duty is to notify the Department of
Public Safety in any event. See senerally Open Records
Decision No. 516 (198Y) (inter-agency transfers of confi-
dential information not violative of the Open Records Act).
p. 5929
E
Honorable Mike Driscoll - Page 5 (JM-1126)
SUMMARY
The county clerk is required to notify the
Department of Public Safety of any finding by
any court of competent jurisdiction that a
person is mentally incompetent, whether or
not the court's findings or judgment recite
that the person does (or does not) hold a
driver's license. The clerk has no duty to
determine that a person so adjudged holds a
driver's license.
LJ bu+c
Very truly yo ,
;M,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
p. 5930