# The Attorney General of Texas
December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. BOX 12546 Austin. TX. 76711. 2546 5121475.2501 Telex 9101674-1367 Telecopier 512/475-0266

1607 Main St.. Suite 1400 Dallas. TX. 75201.4709 2141742-6944

4624 Alberta Ave., Suite 160 EI paso. TX. 79905.2783 915,533.3464

1220 Dallas Ave., Suite 202 Houston, TX. 77002.6866 7131650.0666

606 Broadway, Suite 312 Lubbock, TX. 79401-3479 606/747~i238

4309 N. Tenth. Suite B McAllen. TX. 76501-1665 5121662-4547

200 Main Plaza, Suite 400 San Antonio, TX. 76205-2797 512,225.4181

An Equal OpportunitYI Affirmative Action Employer HonorableDavid G. Lewis ShermanCountyAttorney P. 0. Box 986 Stratford,Texas 79084 opinionNo.MN-577
Re: Enforcement of the compulsory liability insurance provisions of article 6701h, V.T.C.S. DearMr. Lewis:
You have posed questions about sections 1A through 1G of article 6701h,V.T.C.S.,new provisionsof the SafetyResponsibilityLaw which were enacted by the legislature in 1981. See Acts 1981, 67th Leg., ch. 800, at 3053. In pertinentpart, your letterreads:

My specificquestionsare: (1) Does article 6701h, section 1B. V.T.C.S.. require that evidence of financial responsibility, via... automobile liability insurance, be in the possession of an owner/operator of a vehicle while operating that vehicle upon public roads and highways ii the stateof Texas? (7.1 upon subsequent proof at trial of financial responsibility by an owner/operator of a vehicle, is the presumption created in article 6701h, section ID,V.T.C.S., rebutted? In answer to your first inquiry,we observe that section 1B does not require the owner or operator of a vehicle to furnish evidence of financial responsibility upon request; it requires only that "informationconcerningevidence"be furnished. Section 1B of the act reads:

On and after January 1, 1982, every owner and/or operator in the State of Texas shall be required, as a condition of driving, to furnish, upon request, information concerning evidence of financial responsibility to a law enforcement

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officer of the State of Texas or any subdivision thereof,or agent of theDepartment, or to another person involved in an accident. Thus, section 1B does not require that evidence of financial responsibility, such as an insurance policy or a card from the insurancecompany confirmingcoverage,must be in thepossessionof an owner or operator of a vehicle at the time and place the vehicle is being operated. Assuming without deciding that proof of financial responsibility can be satisfied only by a liability insurancepolicy, the statutory provision is satisfied if the owner or operator furnishes adequate information about the evidence of his financial responsibilitywhen requested to do so, wherever the evidence itself might be physically located. See Attorney General Opinion MW-467 (1982) (no particular type of evidence required). We answer your first question in thenegative. SectionD is of relevance to your second question; section 1D of the statutereads:

Failure to give information as required in Section lB, or the giving of informationwhich is false, will raise a rebuttable presumption of failure tomaintain financialresponsibility. Section 2.05 of the Penal Code governs the evidentiaryeffect of statutory presumptions. The provision, which only covers the operation of statutorypresumptions as rules of evidence in criminal trials, see 1R. Ray, Texas Law of Evidence §58 (TexasPractice 3d ed. 1980), and does not restrict the use of statutory presumptions for otherpurposes,reads inpart:

When this code or anotherpenal law establishes a presumptionwith respect to any fact, ithas the followingconsequences: (1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submittedto the jury, unless the court is satisfied that the evidence as a whole clearlyprecludesa findingbeyond a reasonable doubt of thepresumed fact;and (2) if the existenceof thepresumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies.... (Emphasisadded).

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We first note that the constitutions of this state and of the United States require that all persons be presumed innocent,and that no person may be convicted of an offense unless each element of the offense is proved beyond a reasonabledoubt. U.S. Const. amends. V, XIV; Tex. Const. art. I, 019;Mullaneyv. Wilbur, 421 U.S. 684 (1975); In re Winship, 397 U.S. 358 (1970);Crackerv. State, 573 S.W.2d 190 (Tex.Grim. App. 1978). See also Penal Code 52.01; Code Grim. Proc. art. 38.03. We need not consider here, however, whether the Safety Responsibility Law provision at issue establishes a valid rule of evidence for a criminal trial. See Skinner v. State, No. Ol-81-0672-CR (Tex. Civ. App. - Houston [lst Dist.] Aug. 12, 1982, Rev. pet. pending) (notyet reported). In any case, upon proof that the defendant was adequately insured or was otherwise financially responsible at the time of the alleged offense the presumptionwould stand rebutted. The evidence as a whole would clearly preclude a finding that the "presumed" fact existed beyond a reasonable doubt based on the presumption. It would then be error, we believe, to charge the jury in termsof thepresumption. The "presumed fact" in such a situation is the failure of the defendant at the time of the alleged offense to "maintain financial responsibility." Failure to carry, produce, or furnish information concerning evidence of financial responsibility is not a crime or offenseunder the act. -
SUMMARY Article 6701h, section 1B. V.T.C.S., does not require that evidence of financial responsibility be in the possession of an owner or operator of a vehicle while it is being operated upon public roads and highways; proof that the defendant maintained financialresponsibilityat the time of the alleged offense rebuts any presumption the statute might create. The failure to carry, produce, or furnish information concerning evidence of financial responsibility is not a crime or offense under the new provisions of the SafetyResponsibilityLaw. Very trulyyours,

M A R-K W HI T E Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General

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RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby BruceYoungblood AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin JimMoellinger BruceYoungblood

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