Honorable Homer Garrison, Jr.

Director Department of Public 'Safety Box 4087,NorthAustin Station Austin, Texas

.

Dear Colonel Garrison: OpinionNo. W-631 Re: Does the Deoartment of

‘
.. Public Safety have authority to deny the r~enewal of an operator'g commercial operator's, or chauffeur's licensewithout a hearing when the licenseehas an accumulationof numerous;, incidentsof traffic law violations recorded on his driving record, and related questions. .’

In your letter of October 16, 1958, you set outthe following proposition: a "The Department's problem in this respectarises from languagewhich appears in the case of Texas Department of Public Safety v. Azar, 274 S.W.2d 911 (n.r.e.). It Is contendedby some that the Azar case prohibits the Department from ever refusing to renew a license if the applicant can successfullypass the prescribed examination. Others say that the Azar case has been misconstrued and has been limited,by subsequent decisions so that the Department can refuse to renew any license so long.as the refusal is based upon substantial evidence and the Department's action is not'arbitrary nor capricious. Still others feel that.the Azar case denies the Department authority to refuse to renew *hen there ha8 been no prior affirmatlve"findlngthat the applicant is an habitual violator of the traffic laws, b,ut

would not prohibitthe Department from refusing to renew a license If there exists anHonorable Homer Garrison, Jr., page 2 (w-631)

unvacatedaffirmative finding pursuantto Section 22 of Article 668713.”
In view of the foregoing,you request our opinion on two questions. The first question Is as follows: "1
. Does the Department of Public Safety have authority to deny the renewal of an operator's> commercial operator's,or chauffeur's license without a hearingwhen the licenseehas an accumulation of numerous Incidentsof traffic law violationsrecorded on his drivingrecord?' Section 4 of Article 6687b,Vernon's Civil Statutes, sets outwho may be licensed: "TheDepartment shall not Issue any licensehereunder: "1.
. . .A license shall not be issued to any applicantwho has not passed the examination required in Section 10 of this Act.
. . . II

. . . "9
. To any personwhen the Departmenthas good cause to believethat the operation of a motor vehicle on the highways by such personwo,uld be inimical to public safety or welfare." Article 6687b does not have any provision for automatic renewal of a licenseonce it has been issued -- the only provision is for Issuance of new licenses. However,we understand that it has been the consistentDepartmentalpolicy for a number of years to reissue licenses upon application and payment of a fee, unless some special action is, in the opinion of the Department, called for.

The cases arising from Departmentalaction in refusing to reissue licenses under Section 4, either state or imply that the Departmentmay exercise Its own discretion in issuing licenses. II

. . .The law providesthat the department shall have the power to examine applicants for such license and refuse to issue license to any personwho fails to,successfullypass such examination,or If It is found that the 7Honorable Homer Garrison, Jr., page 3 (~~-631)

granting of the licensewould be inimical to public safety.” Department of Public Safety v. Robertson, 2033.W.2d 950. (Emphaelaadded)
“A refusal by the Department to ‘renewa,. . ;i;~f8is authorizedby Art. 6687b, Sets.

.The statute does not put a limit in how long the Departmentmay hold up the renewal of a license. ” Hoover v. Texas Department of Public iaheiy,r Y 26 228.
. . ‘“Section9 fif Section

### 47of Article 6687b, vests the DTpartmentwi%~ the dlsoretlon to nrant or refuse a license. under annronriate ~setsof facts.
. . i” ,_ Texas Department of ‘PublicSafety v. Jackson, 272 S.W.2d 577. The Department’saction in refusing to regssue a license Is subject to Judicial review under Section 31 of Article 6687% to determine if such act was supported by substantial evidence.

The Departmenthas discretionas to whom it will Issue (orrelssue)a license. However, in the exercise of -. this’Ydiscretlon

the Departmentmay not act in an arbitrary and capriciousmanner; I.e. in a manner unsupportedby substantial evidence. Upon appeal,whether the Department did so”act is a matter of law, and Is not for jury ,deter.mination. (SeeDepartment of Public Safety v. Robertson, eupra, and case8 cited therein.)

The cases reflect that the courtswill not consider an applicant’spast drivingrecord, standing alone yas sufficient grounds to meet the test of substantial evidence in support of the Department’saction. *, This attitude leaves out completelythe w;li known fact, of which we may take judicial Icnowledge,,that

people reform. They do so by : embracing the tenant of secular organizations such as AlcoholicsAnonymous and renewing their former pledges or making new pleses to religious organizationsand to their Lord. ment of Public Safety v. Pryor, 321 S.W.2d 99. t,Jazz;;;D;;;@- /

Whether the Department afforded the licenseean opportunity for a re-examInatlon in support of his application,
~. .~. _

Honorable Homer Garrison, Jr., page 4 (m-631)

whether suchwas requested by the applicant,and the result of the examination If given are facts consideredby the Courts in addition to the applicant'spast driving record in testing the reasonableness of the Department's action.

. . . It has been held thatwhen the Department is presentedwith an application for a renewal of a license, the Departmentmust either grant the renewal license or require the applicant take another driver:s examination." Hoover v.to Texas Department of Public Safety, 305 S.W.2d 228. (Emphasisadded).

: In Garrisonv. Smith, 306 S.W.2d 244, Hoover v. Texas

Department of Public Safety, 305 S.W.2d 228, Department of Public Safety v. Robertson, 203 S.W.2d 450, the courts considered whether the Department afforded the applicant an opportunity for a re-examination,whether the same-wasrequested by theapplicant, and the result of same In arriving at its conclusion of law as to whether the Department's'actlonwas supported by substantial evidence.

In ,ouropinion, upon appeal Itmust be shown that the Department afforded each applicant an opportunity for a re-examinationbefore a reissuance request Is denied; and, that unless such Is done, the Department'srefusal to reissue will be held to be arbitrary and capricious. If the Departmenthas afforded the applicant an opportun'ty for a re-examination, and the applicantrefuses to take it or fails to take It, then such factmay be considered in connectionwith the applicant's past driving record as evidence as to the reasonableness of the Department'saction. Thiswas done in Department of Public Safety v. Robertson. We point out In this connection that when an examination is offered, the applicant'spast driving record Is not standing alone, but is coupledwith the additional fact of whether the applicantwould or would not take an examination.

Of course, If an applicant for relssuance Is afforded the opportunity of taking the examinationand should failthe examination,then, the applicant is not entitled to a licenseby the very terms of Subsection 1 of Section 4 of Article 6687b.

Each of the above cases has been determinedon specific facts and circumstanceswhich compelled the Individual ~.' decisions,and no case, with the exceptionof Texas Department .ofPublic Safety v. Azar, 274 S.W.2d 911, has ever directly * passed upon the whole question In one decision.Honorable Homeroarriaon, Jr., page 5 W-.631)

.,

1

,’ Weare of the oplnlon ,that the Azar case, in principle, is in full accord with the underlylng~prlnalplea astabllehed by the other case6 oited In this opinion; and, in our opinion, controle the determination of the question8 you have preeented. It ahould be recalled that in the Azar case no findings of fact ;;;yoluaions of law were requestxnd none were filed by the

The controlllng question and the only actual point neoesky for the decision ia aet out in the language of the ” aourt 88 follower

Since no findings of faot or’ conoluulons oi ia; were filed‘we must aaeumethat the courts ,le rendering lte’ Judgment found either that the Department did not have eubetW5lal faots ‘upon which to baee its a&ion in refusing the renewal of appellee’s lioense, or it aoted arbltrarlls”ln the mat

teP

.” (Emphaa’U added) The Azar oaee eetabliehes that the Legislature did not intend that thspartment could refuse to reitisue a lioenB8 rsnardlesa of whether the applioant oould,quallfy by Parsing the exkmination given by the Department,. just because, df vrevl3us violations of law. Rather,, .the o,+urt indicated that h&dthe Department granted the anpellee 8n exaMnation and hackt,he appellee pawed it, Bhewould.have been entitled to

.’ hav&her, license relsauvI..
. 

## 7, The oouWo6noltiddd Its oplnioti with thlr rtatmaent:

I

. ’ I ‘ti The appellee having properly flled her aipiiiation with the Department beiars ,the expiration date of her Old lloen5e, ment; not having reaueated an

gvm though,the oourt, In our opinion, 

### l rroneourlp r olted Seotlon 18 of A&lo18 6687b In **ICI** opinion, the **oplnlon** olearly ‘lndloatea the reaeonlng of the oourt. Whether thin

. Qitrtion 18 oorreot la Immaterial, beoaure tho ’oplnlon oonform to the general proporitlonr aa deolded In other 0+8e8, olted herein. The 

### opinion maya, In part:

I The 6nly remtrlotion thht u~r~be plaaed e: ih; renewal of a lloenre, aboordbig to thr , rtrtutel, In that the departaent u$ refare to ‘, renew the lloenre without an examinationi ii It ha8 reaaon to believe that lloenred 

### 10na 2onger ,.

.,- .

Honorable Homer Garrison, Jr., page 6 (WW-631)

qualified. ment acted ^.

_ It is ow opfnion that the Departarbitrarilyand without sufficient facts In refusing to renew the licensewithout giving the aDDliCant an oDDortunltY to be ,Oe-examinedso the Department could determine from that examinationwhether or not the appelleewas ,qualified to operate an automobile." (Emphasisadded)
It is clear from the Azar case that the Department does have discretion as to whether it will reissue a license, but that in testing such discretion,the courtswill inquire Intowhether the Department afforded the applicant an opportunity for a re-examination.

In answer to your first question, in our opinion the Departmentmay not refuse to reissue a license solely and exclusivelyupon the ground of the licensee'spast driving record, but the Departmentmust afford the applicant an opportunity to take a re-examination. If the examination is passed, the Departmentwould be guiltyof an arbitrary and capricious action if it refused reissuance. If the applicant does not pass the examination,a license should be refused. If the licensee refuses to take the examination, this fact, coupledwith the past driving record of applicant, can be considered in testing the reasonablenessof the Department's action.

In this connection,we sho,uld state that in order for the Department to sufficientlymeet its burden, an applicantmust be informed that he is afforded the opportunity of taking a re-examination,and if successful,will have his licensereissued. In several of the cases cited above, letters from your Department informing the applicant of the denial and the fact that it is an offense to operate a motor vehiclewithout a valid licensewere set out. In our opinion an additional paragraphon such letters fully .statingthe applicant'sright to take a re-examinationwould be sufficientnotice of such fact.

The second question is as follows: "2
. Does the Department of Public Safety have authority to deny renewal of an operator's, commercialoperator's,or chauffeur's licensewithout a hearingwhen the 'licensee

has an acc,umulation of numerous incidentsof traffic law violations recorded on his driving record when there ., ,Honorable Homer Garrison, Jr., page 7 (m-631)

(exists an unvacated affirmativefindinn, pursuant to Sec. 22 of Art. 66&%, that the applicant is sn habitual violator of the traffic laws?"
You use the term "unvacatedaffirmative finding". We shall assume you inquire of a situationwherein a hearing had been held under Section 22, which resulted In an affirmative finding that the licenseewas an habitual violator of the traffic laws,but befor=. the licensee could perfecthis appeal or before the Department could suspend the llaense, the license expiresby virtue of Section 18. We shall limit this portion of our opinion to such situation.

It is settled that the susp-ehslon of an existing license (under Section 22) and the relssuance of a license (under Section 4) are separate and distinct, involving. different issues and different statutory procedures. (Hoover v. Texas Department of Public Safety, 305 S.W;2d 228). It **is** eauallvwell settled that where i 3 license expiresby virtue of Section 18 during the Section 22 suspensionprooedureor the appeal therefrom, the procedurea--dthe questionsunder considerationbecome.moot. 253, 256 S.W.2d 67 (1953)). (Bostonv, Garrison, 152 Tex.

Section 22 has a rather complicatedprovlslon for appeals of an affirmative finding before the Departmentmay act. After the Department acts, another appeal from the order of the Department is providedby Section 31. Since the expiration of a license during the Section 22 procedure (from initialhearing until the ultimate appeal becomes final)makes such proceduremoot, we feel that the Department could not utilize a portion of that procedure (the finding of a hearing officer) to support an entirelydifferent statutoryaction. While it is true that such a findingmight lend some slight support to the Department's position,we do not feel that a moot findingwhich the licensee could no longer test In court,would authorize Departmental action.

In our opinion,when the liienssels~licenseexpires durinu a Section 22 procedure,.th.e,Department is relegated .- to issuance or refusal of a new licenseas setout ihour answer to Question No. 1 above, and the existence of a moot affirmative finding concerning the licensee. would be immaterial.,. .

Honorable Homer Garrison,Jr., page 8 (WW-631)

SUMMARY The Department of Public Safety does not have'authority,under Article 6687b,Vernon's Civil Statutes, to deny the reissuance of an operator's, commercial operator's, or chauffeur's licensewithout affording the licensee an opportunity to take an examination;the applicant's past drivingrecord standing alone will not justifythe Departmentrefusing to reissue a license; the fact that there Is an unvacated affirmative finding under Seation 22 Is immaterialto the Department's authority to reiaaue licenses.
Yours very truly,
WILL WILSON Attorney General of Texas

TIM:me:sd APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman
L. P. Lollar Leonard Passmore Joe Allen Osborn James Daniel McKeithan Tom I. McFarling

REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert