JIM MATTOX Attorney General

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# The Attorne~y General of Texas

S~‘ptember

17, 1986

Colonel JamesB. Adams OpinionNo. JM-546 Director TexasDepartment o:i Public Safety P.O. Box 4087 Austin, Texas 787'13 Re: Whether theTexasDepartmerit of Public Safety may impounda vehicleunder section 4A of article 6701h,V.T.C.S.

Dear ColonelAdams:

You question the constitutionality of section 4A of article 6701h. V.T.C.S., 1:heTexas Motor'Vehicle Safety Responsibility Law. You ask whether the Texas Department of Public Safety may, acting pursuant to section 4A, impound certainmotor vehicleswithout violating the due procms and equal protection clauses of the Fourteenth Amendment to the 1JnitedStates Constitution. If the department may constitutionally take such action, you also ask about the proper procedure for stor:ing and eventuallydisposingof impoundedvehicles.
Section 4A provides:

(a) my motor vehicle operator who is not domiciledwithin theUnited States andwho operates a vehicle which is in any manner involved in an accident .withinthe State of Texas in which any person is killed or injured or in which damage to the prollertyof 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 presentproof of financialresponsibility.
(b) ::fa 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 thevehicleuntil:
(1) ilcash bond, in an amount to be determined by themagistrate,has been postedwith theDepartment;

p. 2519Colonel James B. Adams - Pa;;s2 (JM-546)

(2) a release has been executed by the other party or parties ':othe accidentand the release is filedwith theDe,?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 responsibilityto others for injury or damage to persons or property resulting frommotor 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:egligenceand 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 operatorswho are not domiciledwithin the United States by providing for the impounding of a motor vehicle operatedby a nondomiciliary if the nondomiciliary fails tc' present proof of financialresponsibility in accordancewith subsection (a)of section 4A. See §4A(b). -
You note that in Bell v. Burson, 402 U.S. 535 (1971).theUnited -- States SupremeCourtheld that a similar statutory schemeviolated 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 1JnitedStates. 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 guaranteedby the FourteenthAmendment. PlylerV. 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 operatorswho Eallwithin section 4A of article 6701h.

In Bell v. Burson, t:leSupreme 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 constitutionalrestraint 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

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notice and an opportunity for a hearing appropriate to the nature of the case. Bell v. Burson, $02U.S. at 541-42. Thus, themotorists in Bell V. Bursonwere 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: turnedonwhether the statemust 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 liabilitywas unnecessary because fault and liabilitywere irrelevantto its statutory financial responsibility system. 402 U.S. at 541. The Court disagreed,noting that in the overall analys:isof the statutory scheme, the determination of liability played a,crucial role as to whether a motorist's licensewas actually susperded. Id. For example, a release executed by the injuredparty or partieswould prevent license suspension. Id. - For these reasons, the courtheld 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, consisttntlywith due process, eliminate considerationof that factor in its priorhearing.

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 damagespendingdeterminationof the issuesof 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 6701hwas. prior to amendment in 1975, directly analogous to the statute **at** issue in Bell v. Burson. Although section 5 provides for suspending licensesyz vehicle registrations while section 4A provides for impoundingvehicles, theprocedures for the impositionof 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 standingof section 4A.

Section 5 requires, owners and operators involved in certainmotor vehicle accidentsto submitproof of liability insurance,to otherwise post security, or to show release from liability under penalty of suspensionof drivers' licensesandmotor vehicle registrations.Prior to the Supreme Court's dec:.sionin 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 thisversion of artit,le6701hwas irrelevant;a blamelessmotor

p. 2421Colonel 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 faultwas 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, liabilityultimately influenceswhether 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.alswith impounding vehicles as security rather than with suspending drivers' licenses and vehicle registrations, similardueproceys :onsiderationsapply. The SupremeCourt in Bell v. Burson determinei.that due process requirements applied because the suspension of issued licenses involyes state action that adjudicates important interastsof the licensees;continuedpossession 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 tangiblepersonalproperty -- **not** simply an entitlement -- wiich may be essential to the pursuit of a livelihood. Consequently, thedue process considerationsdiscussed in BellV. Burson, apply to se:ttion 4A of article 6701h.
Section 4A is similar to thepre-1975version of section 5 and to the Georgia provision decla,redunconstitutional in Bell V. Burson. Section 4A does not requ:lrea hearing on the issue of fault or liabilityprior to the impa~ndingof a vehicle; it authorizes impoundment regardless of whether the nondomiciliary is likely to be liable for damagesor 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 'offault or liability for the injuries or damage caused prior to thsaimpounding of a vehicle involved in an accident. Subsection (b)(2)of section 4A.however,provides that the vehicle need not be impounded if thenondomiciliaryfiles a release of liability executed by the qotherparty 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,tedStates Constitution. Because section 4A suffers fatal defectsunder a due process analysis, examination of ---.

‘7

p. 2422. ColonelJames B. Adams - Page 5 (JM-546)

section 4A under the equal protection analysis which you suggest is unnecessaryat this time.

SUMMARY

Because sectior.4A of article 6701h does not provide for a he.aringon the issue of fault or liability for a mt:or vehicle accident involving a nondomiciliarymotor vehicle operator prior to the impoundmentof thenondomiciliary'svehicle, section 4A fails to compl], with the minisum procedural due process requirements of the FourteenthAmendment to theUnited StatesConstitution.

-JIM MATTOX AttorneyGeneral of Texas

JACKHIGHTOWER FirstAssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorne:? General

RICK GILPIN Chairman,Opinion Committee
Preparedby JenniferRiggs AssistantAttorneyGeneral

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