Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAlTOX
'?l.sy 19. 1986
Attorney General
Supreme Court Building Eonotable William C. Wright Opinion No. .J&496
P. 0. Box 12548
Orange County Attcrney
Austin. TX. 78711. 2548
512,475.2501
Courthouse Re: Whether an individual's license
Telex 91018761367 Orange, Texas 71630 may be suspended under section 2(f)
Telecopier 512/475-0266 of article 67011-5, V.T.C.S., under
certain circumstances
714 Jackson, Suite 700
Dallas, TX. 75202.4508 Dear Mr. Wright:
214/742-8944
You ask whether a provision requiring the Texas Department of
Public Safety to request a hearing within 10 days after the receipt of
4024 Alberta Ave.. Suite 160
demand for a hearing is mandatory or directory. You also ask whether
El Paso, TX. 799052793
9151533-3484
a court has discrlztion as to the length of a suspension of a driver's
license for failure to give a blood or breath specimen. Your first
question is based on the following statute:
1Wl 1exa.3, ?dte 700
Houston, TX. 77002-3111 when the director [of the Department of Public
7131223.5888
Safety] receives [a report that a person has
refused to give a breath or blood specimen], the
806 Broadway. Suite 312 director shall suspend the person's license,
Lubbock. TX. 79401.3479 permit. or nonresident operating privilege, or
8081747.5233
shall issue ao order prohibiting the person from
obtaining a license or permit, for 90 days effec-
4309 N. Tenth. Suite B tive 28 days after the date the persoa receives
McAllen, TX. 78501-1685 notice 1)~’ certified mall or 31 days after the date
5121682~4547 the director sends notice by certified mail, if
the pe!rrroa has not accepted delivery of the
200 Main Plaza. suite 400 notice. If, not later than the 20th day after the
San Antonio. TX. 78205.2797 date on which the person receives notice by
51212254191 certified mall or the 23rd day after the date the
director sent notice by certified mail, if the
person has not accepted delivery of the notice,
An Equal Opportunity1
Affirmative Action Employer
the department receives a written demand that a
hearing ‘be held, the department shall, not later
than the 10th day after the day of receipt of the
demand,~request a court to set the hearing for the
earliest possible date. (Emphasis added).
V.T.C.S. art. 67OL;L-5, $2(f).
p. 2257
Eonorable William C. Wright -. Page 2 (JM-496)
We musr first point out that a brief DPS submitted in response LO
your question indicates a mlsperceptlon about the w%ure of an inquiry
into whether s statute that sets out the duty of a public official is
mandatory or directory. The questlon of vhether such a provision is
mandatory or directory arises vhen It is necessary to determine the
effect of a past fsilurs. to comply vith the provision. The
determination that a duty imposed on public officials is directory
doea not mean that publ:tc officials can ignore the duty. “NO
statutory provisions are intended by the legislature to be
disregarded.” 2A Suthar1tn.d Statutory Construction $57.01, p.’ 640
(rev. 3rd ed. 1943). In other words, regardless of whether the
statute you ask about is rmmdatory or directory, DPS Is not free to
ignore the requirements of srticle 67011-5. “Winisterial officers sre
not wponents of law, they are not free to perform or not perform
clear legal duties as their fancy dictates, and they are not immuue
from compulsory process.” ‘Glass v. Smith. 238 S.W.2d 243 (Tex. Civ.
APP. - Austin 1951). gi,, 244 S.U.2d 645 (1951). Therefore, DPS
must comply with the require=nts of article 67011-5 $2(f).
Article 67011-5, 02(f). states that DPS “shall” request a
setting “not later than tt,e 10th day after the day of receipt of the
demand.” You ask whether ,that provision Is mandatory or directory.
The difference between a mandatory and a directory provision Is that
failure to comply with a INrectory provision does not Invalidate the
underlying proceeding unlows the complaining party can show that he
was harmed by that failure. See State v. Boren, 654 S.W.2d 541 (Tex.
Clv. App. - WACO 1983, no vrit). In contrast, the effect of a
mandatory statute Is "to r,equirc at least substantial compliance with
its provisions in order to uphold the proceedings to vhich the statute
is applicable.” Toyah Independent School District v. Pecos-Barstuw
Independent School Districr, 466 S.W.2d 377, 380 (Tex. Clv. App. - San
Antonio 1971, no writ) citing 3 Sutherland Statutory Construction,
15815, p. 90 (3d ed. 194X:1. -Although “shall” generally indicates a
command, the courts have held In a number of cases that the vord
“shall” In a statutory pcovlsion setting a time limit for the per-
fonsance of a duty Is djrectory rather than msndarory.
Lewis V. Jacksonville Bui~ldins & Loan Association. 540 vS.W. d 307
(Tex. 1976); Chisholm v. ZBevley gills, 287 S.W.Zd 943 (Tcx. 1956);
Department of Public Safecar v. Dawson, 360 S.W.2d 860 (Tex. Clv. App.
- Dallas 1962, no writ); litate v. Fox, 133 S.W.2d 987 (Tex. Clv. App.
- Austin 1939, wit ref’dj:
The key to whether e statutory provision is mandatory or
directory is legislative :.utent:
In determining whether the Legislature intended
the particular provision to be mandatory or merely
directory, consideration should be given to the
entire *ct, its nature and object, and the
p. 2258
Aonorable William C. Wrlghi: - Page 3 (m-496)
consequences that would follow from each construc-
tion. Provisionr; which are not of the essanca of
the thing to be done, but which are included for
the purpose of ~momoting the proper, orderly and
prompt conduct of business, are not generally
regarded as mandatory. If the statute directs,
authorizes or commands an act to be done within a
certain time, the absence of words restraining the
doing thereof afterwards or stating the couse-
quences of fallura to act within the time
specified, may ‘~a considered as a circumstance
tending to support a directory construction.
Chisholm, 281 S.W.2d at 91,5. The courts have noted that regulations
requiring actions to be pe::formad within a certain time are especially
likely to be directory If they regulate the conduct of public
officers. Dawson, 360 Z,.W.2d at 862; Fox, 133 S.W.2d at 990.
Sutherland explains the remon for this rule:
For the raasm that individuals or the public
should not be mc1d.eto suffer for the dereliction
of public of filxrs, provisions regulating the
duties of public officers and specifying the time
for their performance are in that regard generally
directory.
Sutherland Statutory Construction 05816, at 102 (3rd ed. 1943). If
faced with the question 1of the effect of the violation of the
provision In question in this case, a court would probably hold that
the provision in question is directory rather than mandatory. See
Departmant of Public Safety v. Dawson, 360 S.W.2d 860 (Tex. Civ. App.
- Dallas 1962, no writ) (c,ixty-day period within which statute allows
DPS to suspend license is mandatory). Even so, if a def endaat could
show harm, the underlying proceeding would be void. The existence of
harm is a fact question snl would have to be determined case by case.
DPS submitted a brief in response to your request and asked
whether the following procedure does in fact comply with article
67011-5:
The Texas Departlnant of Public Safety routinely
files admlnistrcltlve driver’s license suspension
cases under article 6687b, section 22 (a),
V.T.C.S., in four hundred and fifty-one (451)
courts through0t.t the state. These courts hava,
by prearrangement, given the department the au-
thority to sat a certain number of cases aach week
in order to hav,a a systematic and orderly proce-
dure to handle 1:he approximately seventy thousand
p. 2259
Eonorable William C. Wright .- Page 4 (J&496)
(70,000) adminis!:rativa hearing cases which are
set in these courts each year. This system avoids
the problem of the department having to make an
individual request. for a court setting for each
case. Within forty-eight (48) hours of receipt of
a person’s writt.en demand for a B/BTg [breath/
blood test refusal] hearing, a computer entry ia
made to lndlcatu that the case is set for an
administrative h254 S.W.2d 357, 360
(Tex. 1953). Also, the -statutory predecessor to article 67OlL-5
provided for suspension “for a period ordered by the court, but not to
exceed one (1) year.” The legislature’s decision to supersede that
language with a provision for suspension “for a period of 90 days, as
ordered by the court” indicates that the legislature Intended to fix
the length of the suspension in the new statute and not allow judicial
discretion. The phrase “as ordered by the court” simply refers to the
court ’6 minister%el duty to implement the 90-day suspension.
p. 2260
Eonorsble William C. Wright - Page 5 (JM-496)
Furthermore, section 2(f) of article 67011-5 states that an officer
must inform a person who refuses to give s blood or braath specimen
that he faces an automatic. 90-day suspension. Thus, a court has no
discretion regarding the ltngth of a suspension under article 67011-5.
SUMMARY
A public official must comply with a statutory
duty regardless of whether that duty has been
found to be "directory" for purposes of
determining the effect of a past failure to
CornplY. A court has uo discretion as to the
length of a suspc~nsion under article 67OlL-5.
LI-AJG
Very truly yours
.
JIM HATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Goners1
MARY KELLER
Executive Assistant Attorucy General
ROBERTGRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Commlttec
Prepared by Sarah Woelk
Assistant Attorney General
p. 2261