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 fee to disAustin, Texas 78711 miss proceedings for failure 

to maintain proof of financial responsibility 

(RQ-1427) 

Dear Senator Parmer: 

The 70th legislature amended the Motor Vehicle 

Safety-Responsibility Act to permit courts to charge a ten 

dollar-fee before dismissing a criminal charge for failure 

to maintain proof of financial responsibility, when the 

charge is based solely on a failure to produce suitable 

documentary proof of financial responsibility when requested 

by a police officer and when adequate proof is produced at a 

subsequent hearing on the charge. The fee is unconstitutional. 

The Safety-Responsibility Act requires as a condition 

for the operation of a motor vehicle that a policy of 

automobile liability insurance be available in a specified 

amount to insure against potential losses which may arise 

out of the operation of the vehicle, unless the vehicle is 

exempt, or unless other acceptable arrangements to demonstrate financial responsibility have been made. V.T.C.S. 

art. 6701h, 5 1A. Section 1C of the act makes it a crime to 

fail to maintain financial responsibility. V.T.C.S. art. 

6701h, § lC(a). 

Section 1B of the statute mandates that "every owner 

and/or operator in the State of Texas shall be required, as 

a condition of driving, 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 a police officer who requests it, failure to 

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

furnish the evidence is not a crime. In other words, 

section 1B of the statute does not create an offense where 

the operator of a motor 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 to make the failure to carry proof of financial 

responsibility when operating a motor vehicle a crime. 

The statute sets out as a *'defense" to a prosecution 

for failure to maintain financial responsibility the 

production of documentary proof of financial responsibility 

that was valid at the time that the "offense is alleged to 

have occurred." In such a case, "the charge shall be 

dismissed." V.T.C.S. art. 6701h, 5 1D. In other words, 

evidence of financial responsibility produced in court 

negates any presumption that an offense has been 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 ten dollar 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 fee violates due process. 

The constitutions of both Texas and the United 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 state must 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 for a 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 do not require us to address the 

opinion in this case. 

p. 4593 
Honorable 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 fee departs from the principles of ordered 

liberty. A constitution that does not permit ex post facto 

laws surely does not permit punishment of an act that is not 

made unlawful. See Tex. Const. art. I, 5 16. The law may 

not require a defendant to pay a fee in order to obtain the 

dismissal of a criminal charge of which the defendant is 

innocent. 

The requirement that an innocent defendant pay a ten 

dollar fee before obtaining the dismissal of an unfounded 

criminal charge has been contrary to our notions of due 

process and the law of the land since Magna Carta. ("We 

will sell to no man . . . either justice or right." Magna 

Carta, ch. 40, revrinted in 11 Guide to American 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 

a charge may not be required to pay a fee in 

order to have the charge dismissed. 

Very truly yo r , Ll A h&c 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

p. 4594