JIM MATTOX 

Attorney General 

Supreme Court Bulldlng 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

5121475-2501 

Telex 9101674.1367 

Telecopier 512/475-0266 

714 Jackson, Suite 700 

Dallas, TX. 752024506 

2141742-6944 

4624 Alberta Ave.. Suite 166 

El Paso, TX. 79905-2793 

915/5353464 

,/QOl Texas. Suite 700 

uston, TX. 77002-3111 

I 131223.5666 

608 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

606/747-5236 

4309 N. Tenth. Suite B 

McAllen, TX. 76501-1665 

51216824547 

200 Main Plaza, Suite 400 

San Antonlo. TX. 762052797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorne~y General of Texas 

S~‘ptember 17, 1986 

Colonel James B. Adams Opinion No. JM-546 

Director 

Texas Department o:i Public Safety 

P.O. Box 4087 

Austin, Texas 787'13 

Re: Whether the Texas Departmerit of Public Safety may 

impound a vehicle under section 

4A of article 6701h, V.T.C.S. 

Dear Colonel Adams: 

You question the constitutionality of section 4A of article 

6701h. V.T.C.S., 1:he Texas Motor'Vehicle Safety Responsibility Law. 

You ask whether the Texas Department of Public Safety may, acting 

pursuant to section 4A, impound certain motor vehicles without violating the due procms and equal protection clauses of the Fourteenth 

Amendment to the 1Jnited States Constitution. If the department may 

constitutionally take such action, you also ask about the proper 

procedure for stor:ing and eventually disposing of impounded vehicles. 

Section 4A provides: 

(a) my motor vehicle operator who is not 

domiciled within the United States and who operates 

a vehicle which is in any manner involved in an 

accident .within the State of Texas in which any 

person is killed or injured or in which damage to 

the prollerty of any one person, not including 

himself, to an apparent extent of at least One 

Hundred Dollars ($100) is sustained shall be taken 

imaediat1:l.y before a magistrate and there shall 

present proof of financial responsibility. 

(b) ::f a person does not present proof of 

financia:. responsibility in accordance with Subsection (a), the magistrate shall enter an order 

directin!; the Department to impound the vehicle 

operated by the foreign domiciliary. The Department sha:.l. hold the vehicle until: 

(1) il cash bond, in an amount to be determined 

by the magistrate, has been posted with the Department ; 

p. 2519 
Colonel James B. Adams - Pa;;s 2 (JM-546) 

(2) a release has been executed by the other 

party or parties ':o the accident and the release is 

filed with the De,?artment; or 

(3) the Department receives certification of 

the entry of a flnal judgment of liabiltty in the 

accident from a court of record. 

The general purpose of the Safety Responsibility Law is to 

require the owners and operators of motor vehicles to discharge their 

financial responsibility to others for injury or damage to persons or 

property resulting from motor vehicle accidents in Texas. One method 

by which the act advancec: this purpose is to require owners and 

operators to provide security for damages pending a final determination of the questions of r:egligence and liability. See art. 6701h. 

15. If an owner or operator fails to satisfy the conditions of the 

statute, he stands to lose his license and/or vehicle registration. 

Id. Section 4A addresses the problems presented by motor vehicle 

operators who are not domiciled within the United States by providing 

for the impounding of a motor vehicle operated by a nondomiciliary if 

the nondomiciliary fails tc' present proof of financial responsibility 

in accordance with subsection (a) of section 4A. See §4A(b). - 

You note that in Bell v. Burson, 402 U.S. 535 (1971). the United -- 

States Supreme Court held that a similar statutory scheme violated the 

due process clause of the Fourteenth Amendment. The statute under 

fire in Bell v. Burson did not. however, apply only to motorists who 

are not domiciled in the 1Jnited States. You ask whether the due 

process clause applies to persons covered by section 4A of article 

6701h and whether the section also raises equal protection problems. 

The Supreme Court has long held that aliens, even aliens whose 

presence in this county is deemed unlawful, are entitled to the due 

process of law guaranteed by the Fourteenth Amendment. Plyler V. Doe, 

457 U.S. 202 (1982); Shaajhnessy V. Mezei, 345 U.S. 206 (1953). 

Accordingly, the decisionin Bell v. Burson applies to nondomiciliary 

motor vehicle operators who Eall within section 4A of article 6701h. 

In Bell v. Burson, t:le Supreme Court considered the constitutionality of a Georgia statute that required motorists involved in 

accidents to post security under penalty of loss of their drivers' 

licenses. The due procc%s clause of the Fourteenth Amendment 

prohibits state action that. deprives "any person of life, liberty, or 

property, without due process of law." U.S. Const. amend. 14, 91. 

This constitutional restraint also limits state power to terminate an 

entitlement, whether it :.EI styled a property "right" or a mere 

"privilege." 402 U.S. at 5839; see Goldberg V. Kelly, 397 U.S. 254 

(1970). Recognizing that the su~nsion of issued licenses involves 

state action that adjudicates important interests of the licensees, 

the Court stated that, once! issued, licenses are not to be taken away 

without procedural due process. Id. - 

Procedural due process requires 

p. 2520 
Colonel James B. Adams - Pago 3 (m-546) 

notice and an opportunity for a hearing appropriate to the nature of 

the case. Bell v. Burson, $02 U.S. at 541-42. Thus, the motorists in 

Bell V. Burson were clearly entitled to a hearing; the vital question 

was the kind of hearing due process requires. 

It is well established that due process requires a "meaningful" 

hearing. Id. Bell v. Bursz: turned on whether the state must provide 

a hearing which includes consideration of the question of the 

motorist's fault or liabili,ty prior to suspension of the motorist's 

license. Georgia argued that a hearing on liability was unnecessary 

because fault and liability were irrelevant to its statutory financial 

responsibility system. 402 U.S. at 541. The Court disagreed, noting 

that in the overall analys:is of the statutory scheme, the determination of liability played a, crucial role as to whether a motorist's 

license was actually susperded. Id. For example, a release executed 

by the injured party or parties would prevent license suspension. Id. - 

For these reasons, the court held That 

[allace the statutory scheme makes liability an 

important factor in the State's determination-to 

deprive an individual of his licenses, the State 

may not, consisttntly with due process, eliminate 

consideration of that factor in its prior hearing. 

402 U.S. at 541. As will be shown in the discussion to follow, 

article 6701h is similar to ,this statutory scheme. 

One of the primary purposes for the enactment of article 6701h 

was to require owners a& operators of motor vehicles to provide 

security for damages pending determination of the issues of negligence 

and liability. Oliviera v. Texas Department of Public Safety, 309 

S.W.2d 557, 560 (Tex. Civ. &pp. - Dallas 1958, no writ). Section 5 of 

article 6701h was. prior to amendment in 1975, directly analogous to 

the statute at issue in Bell v. Burson. Although section 5 provides 

for suspending licenses yz vehicle registrations while section 4A 

provides for impounding vehicles, the procedures for the imposition of 

these penalties in the prior version of section 5 and in section 4A 

are the same. Accordinnlv. the Texas Lenislature's resnonse to Bell 

V. Burson, &, by ameid& section 5, 1s significant'to an u*XZ 

standing of section 4A. 

Section 5 requires, owners and operators involved in certain motor 

vehicle accidents to submit proof of liability insurance, to otherwise 

post security, or to show release from liability under penalty of 

suspension of drivers' licenses and motor vehicle registrations. Prior 

to the Supreme Court's dec:.sion in Bell V. Burson, section 5 did not 

provide for a hearing on the issue of fault or liability prior to 

license and registration suspensions. See Acts 1971, 62nd Leg., ch. 

944, 53, at 2860. The Teaas courts stated that fault or liability 

under this version of artit,le 6701h was irrelevant; a blameless motor 

p. 2421 
Colonel James B. Adams - Page 4 (J&546) 

vehicle owner or operator could be required to furnish security for 

damages resulting from an a,.. -<-ident before fault was determined. Texas 

Department of Public Safety V. Gillaspie, 254 S.W.2d 180, 183 (Tex. 

Civ. App. - San Antonio 1952), aff'd. 259 S.W.2d 177 (Tex. 1953), 

cert. denied 347 U.S. 933 11.954). Like the Georgia statute at issue 

in Bell V. Burson, however, liability ultimately influences whether a 

license or registration is revoked under article 6701h. See 65(b). 

In 1975, the Texas Legislature amended section 5 of articl~70lh to 

provide for a hearing on the issue of liability to conform to the 

constitutional requirements of Bell V. Burson. See Acts 1975, 64th 

Leg., ch. 347, 51, at 931; see also Bill Analysisto S.B. No. 192. 

The legislature, however, did not amend section 4A to provide for a 

hearing on the issue of liaxllity. 

Although section 4A de.als with impounding vehicles as security 

rather than with suspending drivers' licenses and vehicle registrations, similar due proceys :onsiderations apply. The Supreme Court in 

Bell v. Burson determinei. that due process requirements applied 

because the suspension of issued licenses involyes state action that 

adjudicates important interasts of the licensees; continued possession 

of a license may be essential to the pursuit of a livelihood. 402 

U.S. at 539. Impounding a motor vehicle is potentially even more 

onerous because it directly affects tangible personal property -- not 

simply an entitlement -- wiich may be essential to the pursuit of a 

livelihood. Consequently, the due process considerations discussed in 

Bell V. Burson, apply to se:ttion 4A of article 6701h. 

Section 4A is similar to the pre-1975 version of section 5 and to 

the Georgia provision decla,red unconstitutional in Bell V. Burson. 

Section 4A does not requ:lre a hearing on the issue of fault or 

liability prior to the impa~nding of a vehicle; it authorizes impoundment regardless of whether the nondomiciliary is likely to be liable 

for damages or injuries. Section 4A(a) states that any nondomiciliary 

motor vehicle operator involved in an accident incurring injury or a 

certain dollar amount of pzoperty damage "shall be taken immediately 

before a magistrate and there shall present proof of financial 

responsibility." If the nondomiciliary fails to present such proof, 

"the magistrate shall enter an order directing the Department to 

impound the vehicle." Sec. 4A(b). Thus, section 4A fails to provide 

for a hearing on the issue 'of fault or liability for the injuries or 

damage caused prior to thsa impounding of a vehicle involved in an 

accident. Subsection (b)(2) of section 4A. however, provides that the 

vehicle need not be impounded if the nondomiciliary files a release of 

liability executed by the qother party or parties to the accident. 

Thus, like the Georgia statute at issue in Bell V. Burson, liability 

ultimately determines whether a vehicle is actually impounded and 

whether it must remain impounded. Consequently, section 4A fails to 

provide the minimum proce&ral due process guaranteed by the Fourteenth Amendment to the Uni,ted States Constitution. Because section 

4A suffers fatal defects under a due process analysis, examination of 

---. 

‘7 

p. 2422 
. 

Colonel James B. Adams - Page 5 (JM-546) 

section 4A under the equal protection analysis which you suggest is 

unnecessary at this time. 

SUMMARY 

Because sectior. 4A of article 6701h does not 

provide for a he.aring on the issue of fault or 

liability for a mt:or vehicle accident involving a 

nondomiciliary motor vehicle operator prior to the 

impoundment of the nondomiciliary's vehicle, section 

4A fails to compl], with the minisum procedural due 

process requirements of the Fourteenth Amendment to 

the United States Constitution. 

-JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorne:? General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 2423