Honorable Yallace Shropahlre

County Attorney Travis.County Austin, Texas Opinion No. M-29
Re: Construction of Seotlon 2(b) o$ Artlole 67olh, Vernonte Civil Statutes,
Dear l&h?,

Shropehire: relative’to stag orders of the oourt
. In a recent letter to this oiiice ?ou requested an opinion in regard to the above refereno6dma ter, lie quote from your letter a8 follows:

“(1) Is it within the dieoretlon of the Court to stay an order of .theflexas Department /iifPub&la Safet;ef based Upon TWitable gPOuncr8? “(2) Is ft within the discretion of the Court to stay an order of the Department if the appeal Is not predicated upon either the conditions enumerated in Seotion 5(c), or the exceptionsunder Section 6 of the Aot? ,I n 0 0 a Section commonly known as as follovrs:‘. 2(b) of Article 6701h, Vernon’s CSvil Statutes, the Safety Responelblllty Law reads, in part,

“Any,, order or act’of the /Texas7 Depart- ment fif Public Safet 7 und’ertie pFovi,sions of thrs Act, may be su % ject to review within thirty (30) days after notice thereof, or .‘I’ thereafter for good oatiseshown,by appeal to the Co@-&y Court at Law at the inetanoe of any party in intereat and in the county wherein

-123-, .

..,

Hon. Wall& ShPopshiJre, pages2,(M-29).

~'~ ~theperson ,aggrleved by,auoh order,

of &t ,resfdes,UP if%here be no County,':Court ate Law thereln,.then in the County'CoWt of,'sa+d'~' ~. ',' county, or.lf3here be no County~Courth,$vln& juPi8dlct~on, then such jurlsdlction~sh&ll,be' 'Inthe Dlstriot~Court of ,sald,county;and'such, C&rt;'l8:'hereby

ve8t&d.'wlth.

jurisdiction,and such ap$e&shall be:Jy'trlal.denovd;,. The Court sha.11

determine tihether.,the'flllngbf the,appeal .shalloperate a8 a ~stayof any such. order or decision of the. Department, with., the excegtlon thatno stays OPdeF.shallbe grantea.staylng an .order,?fsuspenslpn.bythe,. : Dep&tm@nt,of ,Publlo~Safety'that,lI@ baaed ,?n:',~

. . "kflnal~judgment rendered agsinst any ,pePson '~1 ", ~.'ln:thls

estates by & :court o~f'competent. jus$s-

.

.. dl&ion,grow$ng otit ~of;-the

use of.8 motor Vehicle ln~'thisSt,a~te rhen,said-judgment 18'. a ,sub&lstlkgfin@ judgment, and'un~satlefled.; ~fWther, 'ti'appaalshall,n@ .oper@e~i+sa'etay ,' of 'anystich~dth@ orders'or decislotis, of the "., ,, ~,Department,of:PubllcS,arety where~the,~aggrleved, ; paPty was involved Inan Bccidefft 'involving

~a motor'vehlole,which~ he was opei?a$lng

elfhe was charged~wfth'avioiatibn'of aay'of the laws.~of the State'of Texas, or any of Its political :subdlvlslo~s,and,8ald complaintor lndlctment~, fs pending at,thiitime the.tippea,l fPom,an,order or declslon of ~theDepartment of Publlc~ Safety Is filed, unPess the aggrieved party shall file proof of f,lnsnclal ~e8pOnslbllltywith the Depart-~ ment of Public Safety ae a ,condltlon precedent to ~' the obtalfiln&of said sta apd maletaln~said, proof of.flnancfal~

Pes~dnslblll

f yuntil dlsmlssalcif sa$d,,com$alnk or ln~lotmen$'.6r for 8uc.h

period 'of time,

as,grovlded forkin Sdctlon 2(d),.of this, .Act. Alma (E3nphasls~ added.) ~,, ': .- S&f&5 of.~~tlcle'ti70ihp:.'Verns;n8s C$vl~~Statutes, ,, provides t&at the Texas~Dk$aPtment'.oP Pub119 Safety,shall,undeP certain 'eondlt.lor!s .r'equfre

persons,Involved In motor,vehlc~e &cldents within this .Sta$eto &kt,.wlth th@,Departmentas : 'securltyp

a~sum of ,moni%y

whlc~hin the~Departmentss~judgment; would.be~sufflelentto ~satlsfy any ~juci@&ntfor damages result-. ing from stich

accident, Section 5,'also provides that"the'De-, .'partment shall suspend the',dr$ver's llc'ense

and, al& motbr yehicle' ,reglstratlonsof each operator and owner of,a~motor, vehicleInvol.ved

in such accident unless such person post,s.the requfred. -124:HOA. Wallace Shropshlrejpage 

### 3 (M-29)

tiecurlty

or otherwise complies with 6701h. Subsection (c) of Section 5 the provisions of.&lcle -' PPOVlde8, in part* a8 follows: "(c) This Section shall not apply under the conditions stated j.nSection 

### 6 nor: "1

. To such operator or over If such 

### ownerhad In effect at the time of such‘accldent a motor vehicle llabllltypolicy with respect, to the motor vehicle Involved In such accident;
"2. To euch operator, If not the owner of such motor vehicle, If there was In efrect at the time of euch accident a motor vehiole llablllty policy or bond with reepect to hi8 operation of motor vehicle8 not owned by him; 

### “3. To any pereon employed by the government of the United Statee,when such perron 

### $8 acting within the ecope or office of his employment) "4, To 8uch operator or owner If the llablllty of such operator or owner for.::damaSes resulting from such accident Is, ln,.the judegnentof the I&- partment, covered by any other form OS llablllty Insurance policy or bond; nor "5Q To any person quallfyln$ aeVa 

### eelfd insurerunder Section 

### 34 of thle Act,ym to anyperson ogeratlng a motor vehlole for such selfinsurer. Section 

### 6 of Article 6701h, Vernon's Civil Statutes, provides as tollowsn

"Therequirements a8 to 8ecurltys

### proof of financOa1 re6ponslblllty and suspension in Section 5 shall not apply0 I. ,_ "1. To the operator or the owner of a' l motor vehicle involved in an accident whf&eln no injury or damage wau caused to the 

### person or pPOp8Pty of any one other than such 

### oper8to-P or owner; "2, Tp the operator **or** the owner of 

### a motor vehlale lemlly parked **or** legally atopped at a traffic sl@Ial at the time of the accident9 

### * 12s-Hon. Wallace Shropshlre,page 4 (M-3)



### “3. To the owner of a motor vehicle If at the time of the accident the. vehiclewas being operated without his permission, express or lmplied, or was parked by a pereon who had been operating suchmotor vehicle without suchpermission; nor "4. If, prior to the date that the pepart- - ment would otherwise suspend licenee and reglstratlon or nonresident's operatingprivilege under Section 

### 5, there shallbe flle~~svlth the Department evidence satisfactory to It that the person9 who would otherwise have to file security and proof, has been released from liability or been finally adjudlcatednot to be.liable or has executed a duly acknowledgedwritten agreement provldldg for the,payme# of an agreed amount In lnstallment8, with respect to all claims f2r Injuries 

### or damages resulting from the accident. The questions involved In construing the provisions of A&lcl& 6701h, Vernon'8 Civil Statutea,may be etated a8 follows: (1) What must a person, who,Is aggrleved by a Depar%ment of Public Safety suspenelon order/do In order to properly effect his appeal and to bring the appeal within the actual jurlsdiction of the court which has potential jurlsdiction of the appeal? (2) What Is the extent of the power of a coure which has jurlsdIctlon of such an app,eal to stay such a suspension order of the DepaPtment?
In oraer to confer ao@al jurisdl~tlon on a court, having potential jurladlctlon of an appeal from a Department ordero suspending a driver's license or,motor vehicle registration, the aggrieved party must In his petition allege as rounds at least one of the conditions enumerated In Section 

### 57c) or at least one of the exceptions listed In Sec%fon 

### 6 of the Act or other grounds for the appeal, which if accepted, as true, would be sufficient %o obtain a final judwlent In hls:behalf at a trial on the merits of the case0 In tiie Ease of Ollv~lra v. Department

hODo lY!+3.

n,w.h.). of Public S&fe%y, 

### 309 S.W,2d 

### 557 (T.?x.Clv.l_. -_~_ the court agreed with the appellant %hat his appeal, from a'ljepartment suspension ordep1, should not have been dismissed for want of jurlsdiction for the reasons given by the trial court. The court

- 126- jHon. Wallace Shropshlre,pa$e !j(M- 29) <.

nevertheleea affirmed the.dlemiesal 

### for want of jurisdiction on the ground that “If every allegation in appellant’s petition be accepted 88 true, he hae,,not 

### stated leg&% grounds for a stay 

### of the order of suspension. Ollveira v. Dkpartment 

### of Public 

### The court,:.quoted from appellant ‘a Saaonauuio;;~t;~;~

“Under the undisputed facta d?acloaed -1 by the record appellant la subject to but h&s 

### not complied with Art. 6?01h, sec. 5. Hedoea not claim that, he ccmee within any of the exceptlona named in Art. 

### 6701h, sec. 6.” Ollvelra v. Department 

### of F’qblic Safety, aupra, gags
aa cited 

### with proval in 311 S.W.W 2% (Tex.Civ.


### If the appealinS ps3 ’ty 18 OtherWi88subject to the provialons 

### of the Act end 

### does not ‘come

### within one of the conditlona named In 

### Section 5 or one of the exceptions listed in Section 

### 6 of the Act 

### there are no allegations OSfact 8uffLcient tb establish 

### a prima facie 

### ca8e and confer 

### juriad~ctlon.,on the trial court.

.,..



### Oncejurladiotlon haa ittached, the provPaion8 of Section 2(b)~ of Article 6701h v&at 

### comDlete dfacretion in the court to determine whether,the ap&eal ihall operate aa a’atay of a Department auapenslon order* except In thO88caaea where 

### the statute apeolflcally provides that no eta7 

### order shall be granteda The applicable portion of Section .2b) reads a8 

### follows t 0 *TheCourt ahall determlne whether the 

## f&g of the appeal shall operate aa a stay of 8nyn8uchorder or d8oialon of the Department,

. . n It la therefore our opinion that, under the Safety Reapon8lblllty Law, Article 6701~1,it la not within the dlacretlon of

” the trial court to stay 8n &der.of auapenalon of a driverIa 

### license or a motor vehiole 

### reglsijratlon of the Texas Department of Public 

### Safety upon equitable -&rounds. It Is also ouroplnlon that It is not within the discretion of the court to stay such order of auapenalon, if the sppeal la not predicated Upot’.at leaat or@ of the oondltlon8.enumerated in Section 5(c), or ut,l8ast one of the exceptions llated under Sectlon 6 of Article 6701h, Vernon’6 Civil Statutea, or upon other ground8 for the app8a1, which If accepted aa true,~would be wfflclent 

### to obtain

- t27-. .

Hon. Wallace'Shropshlre, page 6 (M-29)

a final judgment In his behalf at a trial on the merit8 of the case. The sufficiency of the petltlon to coifer actual. jurlsdl~tlon of the appeal upon the trial court may be’teatied’ by summary judgmentproceedings':Wood v. Department of Public'

.W.2d274 (TexiCiv.Al $$$$I~$' of Pubilc'Safety 3~!‘S%‘% ‘;;p’;di m!!

. Slmmona v. Depaktment Af'Publlc Safei .idnik (&xxi exaYi T ment of Public Safet v.App, 19055, new.!.)

SUMMARY
It-is not within the discretion of the trial court to stay an order of suspension of a. driver's license or a motor vehicle registration of the Texae Department of Public Safety upotiequitable grounds. I$ Is not within the discretion of the court to stay such order of suspension, If the appeal 1s not predicated upon at least one of the condltlons enumerated In Section 5(c), or at least one of the' tixceptlons

listed under Section 6 of Article 6701h, Vernon”s Civil Statutes, or other grounds for the appeal, which if accepted as true, would be sufficient to obtain a,flnal judgment ln his behalf at a trial on the merits of the case.' V&ti&y yours,

ey O&era1 of Texas

r. Prepared by Lewla E. Berry, Jr.

Assistant Attorney General LEBjr:ra:mkh
APPROVED: OPINION-COMMITTEE. I



### Han, Wallace Shropshlre, page 7 

### (M- 29)

HawthornePhllllpr, Ch8m w. V. aeppert, Co-Chelmen JohnReeve8 Marietta Payne 

### Pat Bailey MonroeClulrton STAFF mm ASSISTANT A. J, Cambbl, Jr.