Untitled Texas Attorney General Opinion ( 1959 )

.’
Honorable Homer Garrison, Jr.
Director
Department of Public 'Safety
Box 4087,North Austin Station
Austin, Texas
Opinion No. W-631
Re: Does the Deoartment of
Public Safety have author-
. ity to deny the r~enewalof
an operator'g commercial
‘.. operator's, or chauffeur's
license without a hearing
when the licensee has an
accumulation of numerous;,
incidents of traffic law
violations recorded on
his driving record, and
Dear Colonel Garrison: related questions.
In your letter of October 16, 1958, you set outthe
following proposition: a
"The Department's problem in this respect arises
from language which appears in the case of Texas
Department of Public Safety v. Azar, 274 S.W.2d
911 (n.r.e.). It Is contended by some that the
Azar case prohibits the Department from ever re-
fusing to renew a license if the applicant can
successfully pass the prescribed examination.
Others say that the Azar case has been miscon-
strued and has been limited,by subsequent
decisions so that the Department can refuse to
renew any license so long.as the refusal is based
upon substantial evidence and the Department's
action is not'arbitrary nor capricious. Still
others feel that.the Azar case denies the Depart-
ment authority to refuse to renew *hen there ha8
been no prior affirmatlve"findlng that the
applicant is an habitual violator of the traffic
laws, b,utwould not prohibit the Department from
refusing to renew a license If there exists an
Honorable Homer Garrison, Jr., page 2 (w-631)
unvacated affirmative finding pursuant to Sec-
tion 22 of Article 668713.”
In view of the foregoing, you request our opinion on
two questions. The first question Is as follows:
"1 . Does the Department of Public Safety have
authority to deny the renewal of an operator's>
commercial operator's, or chauffeur's license
without a hearing when the licensee has an
accumulation of numerous Incidents of traffic
law violations recorded on his driving record?'
Section 4 of Article 6687b, Vernon's Civil Statutes,
sets out who may be licensed:
"The Department shall not Issue any license here-
under:
"1. . . . A license shall not be issued to any
applicant who has not passed the examination
required in Section 10 of this Act. . . .
II
. . .
"9 . To any person when the Department has good
cause to believe that the operation of a motor
vehicle on the highways by such person wo,uldbe
inimical to public safety or welfare."
Article 6687b does not have any provision for auto-
matic renewal of a license once it has been issued -- the
only provision is for Issuance of new licenses. However, we
understand that it has been the consistent Departmental policy
for a number of years to reissue licenses upon application
and payment of a fee, unless some special action is, in the
opinion of the Department, called for.
The cases arising from Departmental action in
refusing to reissue licenses under Section 4, either state or
imply that the Department may exercise Its own discretion in
issuing licenses.
II
. . . The law provides that the department
shall have the power to examine applicants
for such license and refuse to issue license
to any person who fails to,successfully pass
such examination, or If It is found that the
7
Honorable Homer Garrison, Jr., page 3 (``-631)
granting of the license would be inimical to
public safety.” Department of Public Safety
v. Robertson, 2033.W.2d 950. (Emphaela added)
“A refusal by the Department to ‘renew a ,..
;i;~f8is authorized by Art. 6687b, Sets.
. The statute does not put
a limit in how long the Department may hold
up the renewal of a license. ” Hoover
v. Texas Department of Public iaheiy,r
.Y .26 228.
‘“Section 9 fif Section 47 of Article 6687b,
vests the DTpartment wi%~ the dlsoretlon to
nrant or refuse a license.
,_ under annronriate
~sets of facts. . . i” Texas Department of
‘Public Safety v. Jackson, 272 S.W.2d 577.
The Department’s action in refusing to regssue a
license Is subject to Judicial review under Section 31 of
Article 6687% to determine if such act was supported by sub-
stantial evidence.
The Department has discretion as to whom it will
Issue (or relssue)a license. However, in the exercise of -.
this’Ydiscretlonthe Department may not act in an arbitrary
and capricious manner; I.e. in a manner unsupported by
substantial evidence. Upon appeal, whether the Department
did so”act is a matter of law, and Is not for jury ,deter.mi-
nation. (See Department of Public Safety v. Robertson, eupra,
and case8 cited therein.)
The cases reflect that the courts will not consider
yas
an applicant’s past driving record, standing alone suf-
ficient grounds to meet the test of substantial evidence in
support of the Department’s action.
*, This attitude leaves out completely the
w;li known fact, of which we may take judicial
Icnowledge,,thatpeople reform. They do so by :
embracing the tenant of secular organizations
such as Alcoholics Anonymous and renewing their
former pledges or making new pleses to religious
organizations and to their Lord. t,Jazz;;;D;;;@- /
ment of Public Safety v. Pryor,
321 S.W.2d 99.
Whether the Department afforded the licensee an
opportunity for a re-examInatlon in support of his application,
~..~
. _
Honorable Homer Garrison, Jr., page 4 (m-631)
whether such was requested by the applicant, and the result
of the examination If given are facts considered by the
Courts in addition to the applicant's past driving record
in testing the reasonableness of the Department's action.
. . . It has been held that when the Department
is presented with an application for a renewal
of a license, the Department must either grant
the renewal license or require the applicant to
take another driver:s examination." Hoover v.
Texas Department of Public Safety, 305 S.W.2d
228. (Emphasis added).
In Garrison v. Smith, 306 S.W.2d 244, Hoover v. Texas
: Department of Public Safety, 305 S.W.2d 228, Department of Pub-
lic Safety v. Robertson, 203 S.W.2d 450, the courts considered
whether the Department afforded the applicant an opportunity
for a re-examination, whether the same-was requested by the-
applicant, and the result of same In arriving at its conclu-
sion of law as to whether the Department's'actlon was supported
by substantial evidence.
In ,ouropinion, upon appeal It must be shown that the
Department afforded each applicant an opportunity for a
re-examination before a reissuance request Is denied; and, that
unless such Is done, the Department's refusal to reissue will
be held to be arbitrary and capricious. If the Department has
afforded the applicant an opportun'ty for a re-examination,
and the applicant refuses to take it or fails to take It, then
such fact may be considered in connection with the applicant's
past driving record as evidence as to the reasonableness of the
Department's action. This was done in Department of Public
Safety v. Robertson. We point out In this connection that when
an examination is offered, the applicant's past driving record
Is not standing alone, but is coupled with the additional fact
of whether the applicant would or would not take an examination.
Of course, If an applicant for relssuance Is afforded
the opportunity of taking the examination and should failthe
examination, then, the applicant is not entitled to a license by
the very terms of Subsection 1 of Section 4 of Article 6687b.
Each of the above cases has been determined on
specific facts and circumstances which compelled the Individual
~.'decisions, and no case, with the exception of Texas Department
.of Public Safety v. Azar, 274 S.W.2d 911, has ever directly *
passed upon the whole question In one decision.
Honorable Homer oarriaon, Jr., page 5 W-.631)
.,
We are of the oplnlon ,that the Azar case, in principle,
is in full accord with the underlylng~prlnalplea astabllehed by
the other case6 oited In this opinion; and, in our opinion, con-
trole the determination of the question8 you have preeented.
It ahould be recalled that in the Azar case no findings of fact
;;;yoluaions of law were requestxnd none were filed by the
The controlllng question and the only actual point
neoesky for the decision ia aet out in the language of the ”
aourt 88 follower
Since no findings of faot or’ conoluulons
oi ia; were filed‘we must aaeume that the courts
,le rendering lte’ Judgment found either that the
Department did not have eubetW5lal faots ‘upon
which to baee its a&ion in refusing the renewal
of appellee’s lioense, or it aoted arbltrarlls”ln
the matteP . ” (Emphaa’U added)
The Azar oaee eetabliehes that the Legislature did not
intend that thspartment could refuse to reitisue a lioenB8
rsnardlesa of whether the applioant oould,quallfy by Parsing
the exkmination given by the Department,. just because, df vre-
vl3us violations of law. Rather,, .the o,+urt indicated that
h&d the Department granted the anpellee 8n exaMnation and
hack t,he appellee pawed it, Bhe would.have been entitled to .’
hav&her, license relsauvI.. .
7, The oouWo6noltiddd Its oplnioti with thlr rtatmaent:
‘ti The appellee having properly flled her
aipiiiation with the Department beiars ,the
expiration date of her Old lloen5e,
ment; not having reaueated an
I .
’ I
gvm though,the oourt, In our opinion, lrroneourlp r
olted Seotlon 18 of A&lo18 6687b In ICI opinion, the oplnlon
olearly ‘lndloatea the reaeonlng of the oourt. Whether thin .
Qitrtion 18 oorreot la Immaterial, beoaure tho’oplnlon oon-
1 form to the general proporitlonr aa deolded In other 0+8e8,
olted herein. The opinion maya, In part:
I
The 6nly remtrlotion thht u~r~ be plaaed ,
e: ih; renewal of a lloenre, aboordbig to thr
,’ rtrtutel, In that the departaent u$ refare to ‘,
renew the lloenre without an examinationi ii It
ha8 reaaon to believe that lloenred 10 na 2onger ,.
.,
- .
Honorable Homer Garrison, Jr., page 6 (WW-631)
qualified. It is ow opfnion that the Depart-
ment
^. acted
_ arbitrarily and without sufficient
facts In refusing to renew the license without
giving the aDDliCant an oDDortunltY to be
,Oe-examined so the Department could determine
from that examination whether or not the
appellee was ,qualifiedto operate an automobile."
(Emphasis added)
It is clear from the Azar case that the Department
does have discretion as to whether it will reissue a license,
but that in testing such discretion, the courts will inquire
Into whether the Department afforded the applicant an oppor-
tunity for a re-examination.
In answer to your first question, in our opinion
the Department may not refuse to reissue a license solely
and exclusively upon the ground of the licensee's past driving
record, but the Department must afford the applicant an
opportunity to take a re-examination. If the examination is
passed, the Department would be guilty of an arbitrary and
capricious action if it refused reissuance. If the appli-
cant does not pass the examination, a license should be
refused. If the licensee refuses to take the examination,
this fact, coupled with the past driving record of applicant,
can be considered in testing the reasonableness of the
Department's action.
In this connection, we sho,uldstate that in order
for the Department to sufficiently meet its burden, an
applicant must be informed that he is afforded the oppor-
tunity of taking a re-examination, and if successful, will
have his license reissued. In several of the cases cited
above, letters from your Department informing the applicant
of the denial and the fact that it is an offense to operate
a motor vehicle without a valid license were set out. In
our opinion an additional paragraph on such letters fully
.statingthe applicant's right to take a re-examination would
be sufficient notice of such fact.
The second question is as follows:
.,,
"2. Does the Department of Public Safety
have authority to deny renewal of an
operator's, commercial operator's, or
chauffeur's license without a hearing when
the 'licenseehas an acc,umulationof num-
erous incidents of traffic law violations
recorded on his driving record when there
Honorable Homer Garrison, Jr., page 7 (m-631)
(exists an unvacated affirmative findinn,
pursuant to Sec. 22 of Art. 66&%, that
the applicant is sn habitual violator of
the traffic laws?"
You use the term "unvacated affirmative finding".
We shall assume you inquire of a situation wherein a hearing
had been held under Section 22, which resulted In an affirm-
ative finding that the licensee was an habitual violator of
the traffic laws, but befor=.the licensee could perfect his
appeal or before the Department could suspend the llaense,
the license expires by virtue of Section 18. We shall limit
this portion of our opinion to such situation.
It is settled that the susp-ehslonof an existing
license (under Section 22) and the relssuance of a license
(under Section 4) are separate and distinct, involving.
different issues and different statutory procedures. (Hoover
v. Texas Department of Public Safety, 305 S.W;2d 228). It is
eauallv well settled that where i3 license expires by virtue
of Section 18 during the Section 22 suspension prooedure or
the appeal therefrom, the procedure a--dthe questions under
consideration become.moot. (Boston v, Garrison, 152 Tex.
253, 256 S.W.2d 67 (1953)).
Section 22 has a rather complicated provlslon for
appeals of an affirmative finding before the Department may
act. After the Department acts, another appeal from the
order of the Department is provided by Section 31. Since the
expiration of a license during the Section 22 procedure (from
initial hearing until the ultimate appeal becomes final) makes
such procedure moot, we feel that the Department could not
utilize a portion of that procedure (the finding of a hearing
officer) to support an entirely different statutory action.
While it is true that such a finding might lend some slight
support to the Department's position, we do not feel that a
moot finding which the licensee could no longer test In
court, would authorize Departmental action.
In our opinion, when the liienssels ~licenseexpires
durinu
.- a Section 22 procedure,.th.e,Departmentis relegated
to issuance or refusal of a new license as setout ihour
answer to Question No. 1 above, and the existence of a moot
affirmative finding concerning the licensee.would be im-
material.
,. .
Honorable Homer Garrison, Jr., page 8 (WW-631)
SUMMARY
The Department of Public Safety does not
have'authority, under Article 6687b, Vernon's
Civil Statutes, to deny the reissuance of an
operator's, commercial operator's, or chauf-
feur's license without affording the licensee
an opportunity to take an examination; the
applicant's past driving record standing alone
will not justify the Department refusing to
reissue a license; the fact that there Is an
unvacated affirmative finding under Seation 22
Is immaterial to the Department's authority
to reiaaue licenses.
Yours very truly,
WILL WILSON
Attorney General of Texas
Tom I. McFarling
TIM:me:sd
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
L. P. Lollar
Leonard Passmore
Joe Allen Osborn
James Daniel McKeithan
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert