Honorable Homer Garrison, Jr. 

Director 

Department of Public 'Safety 

Box 4087,North Austin Station 

Austin, Texas 

. 

Dear Colonel Garrison: 

Opinion No. 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 

license without a hearing 

when the licensee has an 

accumulation of numerous;, 

incidents of 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 respect arises 

from language which appears in the case of Texas 

Department of Public Safety v. Azar, 274 S.W.2d 

911 (n.r.e.). It Is contended by some that the 

Azar case prohibits the Department from ever refusing to renew a license if the applicant can 

successfully pass 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"findlng that the 

applicant is an habitual violator of the traffic 

laws, b,ut would not prohibit the Department from 

refusing to renew a license If there exists an 
Honorable Homer Garrison, Jr., page 2 (w-631) 

unvacated affirmative finding pursuant to 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 hearing when the licensee has an 

accumulation of numerous Incidents of traffic 

law violations recorded on his driving record?' 

Section 4 of Article 6687b, Vernon's Civil Statutes, 

sets out who may be licensed: 

"The Department shall not Issue any license hereunder: 

"1. . . . A license shall not be issued to any 

applicant who has not passed the examination 

required in Section 10 of this Act. . . . 

II 

. . . 

"9 . To any person when the Department has good 

cause to believe that the operation of a motor 

vehicle on the highways by such person wo,uld be 

inimical to public safety or welfare." 

Article 6687b does not have any provision for automatic renewal of a license once it has been issued -- the 

only provision is for Issuance of new licenses. However, we 

understand that it has been the consistent Departmental policy 

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 Departmental action in 

refusing to reissue licenses under Section 4, either state or 

imply that the Department may exercise Its own discretion in 

issuing licenses. 

II 

. . . The law provides that the department 

shall have the power to examine applicants 

for such license and refuse to issue license 

to any person who fails to,successfully pass 

such examination, or If It is found that the 

7 
Honorable Homer Garrison, Jr., page 3 (~~-631) 

granting of the license would be inimical to 

public safety.” Department of Public Safety 

v. Robertson, 2033.W.2d 950. (Emphaela added) 

“A refusal by the Department to ‘renew a ,. . 

;i;~f8is authorized by Art. 6687b, Sets. 

. The statute does not put 

a limit in how long the Department may hold 

up the renewal of a license. ” Hoover 

v. Texas Department of Public iaheiy,r 

. Y . 26 228. 

‘“Section 9 fif Section 47 of Article 6687b, 

vests the DTpartment wi%~ the dlsoretlon to 

nrant or refuse a license. under annronriate 

~sets of facts. . . i” 

,_ 

Texas Department of 

‘Public Safety v. Jackson, 272 S.W.2d 577. 

The Department’s action 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 Department has discretion as to whom it will 

Issue (or relssue)a license. However, in the exercise of -. 

this’Ydiscretlon the Department may not act in an arbitrary 

and capricious manner; I.e. in a manner unsupported by 

substantial evidence. Upon appeal, whether the Department 

did so”act is a matter of law, and Is not for jury ,deter.mination. (See Department of Public Safety v. Robertson, eupra, 

and case8 cited therein.) 

The cases reflect that the courts will not consider 

an applicant’s past driving record, standing alone yas sufficient grounds to meet the test of substantial evidence in 

support of the Department’s action. 

*, This attitude leaves out completely the 

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 Alcoholics Anonymous and renewing their 

former pledges or making new pleses to religious 

organizations and to their Lord. 

ment of Public Safety v. Pryor, 

321 S.W.2d 99. 

t,Jazz;;;D;;;@- / 

Whether the Department afforded the licensee an 

opportunity for a re-examInatlon in support of his application, 

~. .~ 
. _ 

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

whether such was requested by the applicant, and the result 

of the examination If given are facts considered by the 

Courts in addition to the applicant's past driving record 

in testing the reasonableness of the Department's action. 

. . . It has been held that when the Department 

is presented with an application for a renewal 

of a license, the Department must 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. (Emphasis added). 

: 

In Garrison v. 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-was requested by theapplicant, and the result of same In arriving at its conclusion of law as to whether the Department's'actlon was supported 

by substantial evidence. 

In ,our opinion, upon appeal It must be shown that the 

Department afforded each applicant an opportunity for a 

re-examination before a reissuance request Is denied; and, that 

unless such Is done, the Department's refusal to reissue will 

be held to be arbitrary and capricious. If the Department has 

afforded the applicant an opportun'ty for a re-examination, 

and the applicant refuses to take it or fails to take It, then 

such fact may be considered in connection with the applicant's 

past driving record as evidence as to the reasonableness of the 

Department's action. This was done in Department of Public 

Safety v. Robertson. We point out In this connection that when 

an examination is offered, the applicant's past driving record 

Is not standing alone, but is coupled with the additional fact 

of whether the applicant would or would not take an examination. 

Of course, If an applicant for relssuance Is afforded 

the opportunity of taking the examination and should failthe 

examination, then, the applicant is not entitled to a license by 

the very terms of Subsection 1 of Section 4 of Article 6687b. 

Each of the above cases has been determined on 

specific facts and circumstances which compelled the Individual 

~.' decisions, and no case, with the exception of Texas Department 

.of Public Safety v. Azar, 274 S.W.2d 911, has ever directly * 

passed upon the whole question In one decision. 
Honorable Homer oarriaon, Jr., page 5 W-.631) 

., 

1 

,’ 

We are 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 aaeume that 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&d the Department granted the anpellee 8n exaMnation and 

hack t,he appellee pawed it, Bhe would.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 10 na 2onger ,. 

., 
- . 

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

qualified. 

ment acted ^. _ 

It is ow opfnion that the Departarbitrarily and without sufficient 

facts In refusing to renew the license without 

giving the aDDliCant an oDDortunltY to be 

,Oe-examined so the Department could determine 

from that examination whether or not the 

appellee was ,qualified to operate an automobile." 

(Emphasis added) 

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 courts will inquire 

Into whether the Department afforded the applicant an opportunity for a re-examination. 

In answer to your first question, in our opinion 

the Department may not refuse to reissue a license solely 

and exclusively upon the ground of the licensee's past driving 

record, but the Department must afford the applicant an 

opportunity to take a re-examination. If the examination is 

passed, the Department would be guilty of 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, coupled with the past driving record of applicant, 

can be considered in testing the reasonableness of the 

Department's action. 

In this connection, we sho,uld state that in order 

for the Department to sufficiently meet its burden, an 

applicant must be informed that he is afforded the opportunity of taking a re-examination, and if successful, will 

have his license reissued. 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 vehicle without a valid license were set out. In 

our opinion an additional paragraph on such letters fully 

.stating the applicant's right to take a re-examination would 

be sufficient notice 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, commercial operator's, or 

chauffeur's license without a hearing when 

the 'licensee has an acc,umulation of numerous incidents of traffic law violations 

recorded on his driving record when there 

., , 
Honorable Homer Garrison, Jr., page 7 (m-631) 

(exists an unvacated affirmative findinn, 

pursuant to Sec. 22 of Art. 66&%, that 

the applicant is sn habitual violator of 

the traffic laws?" 

You use the term "unvacated affirmative finding". 

We shall assume you inquire of a situation wherein a hearing 

had been held under Section 22, which resulted In an affirmative finding that the licensee was an habitual violator of 

the traffic laws, but befor=. the licensee could perfect his 

appeal or before the Department could suspend the llaense, 

the license expires by 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 

eauallv well settled that where i 3 license expires by virtue 

of Section 18 during the Section 22 suspension prooedure or 

the appeal therefrom, the procedure a--d the questions under 

consideration become.moot. 

253, 256 S.W.2d 67 (1953)). 

(Boston v, Garrison, 152 Tex. 

Section 22 has a rather complicated provlslon for 

appeals of an affirmative finding before the Department may 

act. After the Department acts, another appeal from the 

order of the Department is provided by Section 31. Since the 

expiration of a license during the Section 22 procedure (from 

initial hearing until the ultimate appeal becomes final) makes 

such procedure moot, we feel that the Department could not 

utilize a portion of that procedure (the finding of a hearing 

officer) to support an entirely different statutory action. 

While it is true that such a finding might lend some slight 

support to the Department's position, we do not feel that a 

moot finding which the licensee could no longer test In 

court, would authorize Departmental action. 

In our opinion, when the liienssels ~license expires 

durinu .- a Section 22 procedure,.th.e,Department is relegated 

to issuance or refusal of a new license as 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 license without affording the licensee 

an opportunity to take an examination; the 

applicant's past driving record standing alone 

will not justify the Department refusing to 

reissue a license; the fact that there Is an 

unvacated affirmative finding under Seation 22 

Is immaterial to 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