A 

### THE ATTORNEY GENERAL 0~ TEXAS

June 16, 1988

Honorable Hugh Parmer Opinion No. JM-917 Chairman Intergovernmental Relations Re: Constitutionality of Committee section E(e) of article Texas State Senate 6701h, V.T.C.S., requiring P. 0. BOX 12068 payment of a $10 feeto disAustin, Texas 

### 78711 miss proceedings for failure tomaintain proof of financial responsibility (RQ-1427)

Dear Senator Parmer:

The 70th legislature amended the Motor Vehicle Safety-Responsibility Act topermit courts to charge a ten dollar-fee before dismissing acriminal charge for failure tomaintain proof of financial responsibility, when the charge is based solely ona failure to produce suitable documentary proof of financial responsibility when requested by apolice officer andwhen adequate proof isproduced at a subsequent hearing on the charge. The fee is unconstitutional.

The Safety-Responsibility Act requires as a condition forthe operation ofa motor vehicle that a policy of automobile liability insurance be available ina specified amount to insure against potential losses which may arise out of the operation of thevehicle, unless thevehicle is exempt, orunless other acceptable arrangements to demonstrate financial responsibility have been made. V.T.C.S. art. 6701h, 5 1A. Section 1Cof the actmakes ita crime to fail to maintain financial responsibility. V.T.C.S. art. 6701h, § lC(a).
Section 1Bof the statute mandates that "every owner and/or operator inthe State of Texas shall be required, as acondition ofdriving, to furnish, upon request, evidence of financial responsibility.
. . .'I V.T.C.S. art. 6701h, 5 lB(a). While this section of the statute specifies the appropriate evidence of financial responsibility that must **be** furnished to apolice officer who requests it, failure to

P. 4592Honorable Hugh Parmer -Page 2 (J&f-917)

furnish the evidence is not a crime. In other words, section 1Bof the statute does not create an offense where the operator ofamotor vehicle does not carry documentary proof of financial responsibility while operating a motor vehicle. Attorney General Opinion MW-577 (1983). See also Attorney General Opinion JM-439 (1986).I The legislature remains free tomake the failure to carry proof of financial responsibility when operating amotor vehicle acrime.

The statute sets out as a *'defense"to a prosecution for failure to maintain financial responsibility the production ofdocumentary proof of financial responsibility thatwas valid atthe time that the "offense isalleged to have occurred." In such acase, "the charge shall be dismissed." V.T.C.S. art. 6701h, 51D. In other words, evidence of financial responsibility produced in court negates anypresumption that anoffense hasbeen committed. Thus, if a charge is brought~ for failure to maintain financial responsibility based on the presumption that a failure to furnish documentary proof of financial responsibility is evidence of a failure to maintain the requisite financial responsibility, and sufficient proof of financial responsibility is furnished, then the defendant is innocent.

The 70th legislature amended the statute to require that persons found innocent in these circumstances nevertheless must pay a tendollar fee when the charge is dismissed. Acts 1987, 70th Leg., ch. 579, 5 1 (eff. Sept. 1, 1987) (amending section lC,article 6701h, V.T.C.S.). Imposition of such a feeviolates dueprocess.
The constitutions ofboth Texas and theUnited States contain provisions requiring that the state provide due process in administering the criminal laws. Tex. Const. art. I, §§ 13, 19; U.S. Const., amendments V and XIV. Action by the statemust be consistent with the fundamental principles of liberty and justice. Dixon v.McMullen, 527

-1. We are aware of a m curiam decision by a single court of appeals that sanctions the use of a presumption based on a failure to produce documentary evidence of financial responsibility as the sole basis fora conviction for failure to maintain financial responsibility. Coit v. State, 728 S.W.2d 105 (Tex.App. -Austin 1987, pet. ref'd, n.r.e.). Your questions donot require us to address the opinion inthis case.

p. 4593Honorable Hugh Parmer -Page 3 (JM-917)

F.Supp. 711 (D.C.N.D. Tex. 1981). Collecting a fee from a defendant pronounced innocent by the same statute which requires the feedeparts from theprinciples of ordered liberty. A constitution that does notpermit expost facto laws surely does notpermit punishment of an act that isnot made unlawful. See Tex. Const. art. I, 5 16. The law may not require adefendant topay a fee inorder to obtain the dismissal ofa criminal charge ofwhich the defendant is innocent.

The requirement that an innocent defendant pay a ten dollar feebefore obtaining thedismissal of an unfounded criminal charge hasbeen contrary to our notions of due process and the lawof the land since Magna Carta. ("We will sell tono man . . .either justice or right." Magna Carta, ch. 40, revrinted in 11Guide toAmerican Law 252). See also Tex. Const. art. I, §§ 13, 19.

SUMMARY
Article 6701h, section lC(e) of the Motor Vehicle Safety-Responsibility Act is unconstitutional. Criminal defendants innocent of acharge may notbe required to pay a fee in order tohave the charge dismissed.
Very truly yo r , 

# Llh&c

A JIM MATTOX Attorney General of Texas

MARYKELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Don Bustion Assistant Attorney General

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