DAN MORALES

Al-roRxEY CESERAL 

## QBffice

of the !Zlttornep @eneral Mate of Gexae September 23.1996 Mr. Bany R. McBee Chair, Texas Natural Resource Conservation Commission P.O. Box 13087 Austin, Texas 7871 l-3087 Opiion No. DM-4 14 Re: Whether the state constitutionally may implement, as part of its vehicle emissions inspection and maintenance program, a federal requirement that the state temporarily may suspend station or inspector licenses immediately upon finding a violation of the program or equipment failure (RQ-894) Dear Mr. McBee: Federal law requires the state to authorize a quality assurance officer of the state’ s vehicle emissions inspection and maintenance program temporarily to suspend the license of an inspection station or inspector immediately, and prior to providing a hearing, upon discovering that the station or inspector has violated the state’ s program or that the station or inspector has suffered an equipment failure that directly affects emission reduction benefits. You ask whether the immediate, temporary suspension requirement violates the due-process clause of article I, section 19 of the Texas Constitution. We conclude that it does not unless it violates the federal constitution’ s due-process requirements. While we believe a court would fmd the immediate, temporary suspension requirement constitutional, whether in a particular case the state applies the requirement so as to violate the federal constitution is a question off% that is inappropriate to the opinion process. Before we address the constitutional issue you raise, we believe it will be helpfil to examine the pertinent federal laws regarding a state’ s creation of a vehicle emissions inspection and maintenance program. You state in your letter to this office that the federal Clean Air Act’ requires the state to include a vehi&inspection and maintenance program in its state implementation plan, a plan devised by the state to reduce emissions as necessary to comply with national air quality standards.2 For purposes of this opinion, we will accept, without examination, your statement that the inspection and maintenance program is required. As we understand the federal regulations, ifthe state implements an

‘42 USC. ch. 85. %ee40 C.F.R $8 51.100(i), .llO.Mr. Bany R. McBee - Page 2 (Dl!-414)

inspection and maintenance program, vehicles in all or certain parts of the state must be inspected periodically to ensure that the vehicles comply with emissions standards.3 The federal regulations describe several tests that the state may require in the inspection and maintenance program. ’ An inspection station or inspector must use a computerized test system to take any required test measurements,J and the station or inspector properly must calibrate and maintain the equipment, recording calibration data and maintenance.6 The state must protect the integrity of an inspection and maintenance program by implementing an “ongoing quality assurance program” designed to discover, overtly and covertly, whether inspection stations and inspectors are correctly performing all tests, whether they are keeping proper records, and whether they are properly maintaining the test equipment. ’ Finally, for our purposes here, federal law requires the state to provide for enforcement against inspection stations and inspectors who violate the state program. In particular, the state must authorize a quality assurance officer temporarily to suspend station and inspector licenses without granting a hearing:

The quality assurance officer shall have the authority to temporarily suspend station and inspector licenses or certiticates (after approval of a superior) immediately upon finding a violation or equipment failure that directly affects emission reduction benetits, pending a hearing when requested. In the case of immediate suspension, a hearing shah be held within fourteen calendar days of a written request by the station licensee or the inspector. Failure to

‘See 40 C.F.R 5551.350,.355(a),.356(a), (h);seecrlso

42 U.S.C. pg 7521(a),

7525.7541.

‘See id. 8 51.357(a)(7)

- (13);seealso id. pt. 51,snbpt.S,app.B (dcrcrllig steady&ate test).

‘Id. 0 51.358(a). 61d. 8 51.359,

see also id. pt. 51,snbpt.S, app.A.

‘Id. 0 51.363. The f&ml regulations require a statewith a vekicleinspeaion and maintenan~ pm8ramtownduct,onare@rbasis,over&an6awertpufonnance audits. Id. 0 51.363(a). Overt perfonnana audits, which the state rust performat least billy for each test bsy, must include chedringto~whclherthcstationor~robscrvcsappmpriatcdacumcnts&urity,~whaha station or inspector

followsrequiredrecord-keeping praalces; whetherthe station or lmpecmrproperly displaysli- and artiticates that arc requiredto be displayed; and whethereach tmpectcrproperly pcrforma an impectlon. Id. 0 51.363(a)(3). covert pcrfonnance

auditsmusttnclude.

anion8otkerthln8s. remnte visd ohmvation of inspectorperformana; site visits at least once per year per number of inspectors usingcovertveklclcsset to fail; and for stationsthat comtnct both testingan6 rep&s, at least onecovenvehiclevisitper stationperyearincluding thepurchase

ofrep&s an6 subsequent

retesting. Id. g 51.363(a)(4).Mr. Ban-y R McBee - Page 3 (DM-4 14)

hold a hearing within 14 days when requested shall cause the suspension to lapse.s A state may avoid this immediate, temporary suspension requirement only if the state’ s constitution precludes it.9 Additionally, the state’ s attorney general must “iknish an official opinion

. . explaining the constitutional impediment as well as relevant case law.“‘ 0 You believe the immediate, temporary suspension requirement violates the Texas Constitution, and you thus have requested our opinion on the matter. Texas Constitution article I, section 19 provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities except by the due course of the law of the land.” To prevail on a due-process claim, a plaintiff must show that the state has deprived him or her of a protected property or liberty interest.” Once a plaintiff shows that a state taking implicates a protected property or liberty interest, the court must determine the process to which the plaintiffis entitled. ‘2
In our opinion, the immediate, temporary suspension procedure about which you ask satisfies the state constitution’ s due-process provision if it provides sufficient due process for purposes of the federal constitution. ‘3 We have found no Texas cases or attorney general opinions addressing due-process requirements before a temporary suspension. In matters of procedural due process, however, Texas courts traditionally follow federal court interpretationsI Federal courts have determined that, at a minimum, due process requires “notice and an opportunity to be heard at a meaningful time and in a meaningfbl manner.n15 Thus, a court evaluates what process is due using “a flexible standard that depends on the practical requirements of the circumstances.“~6 With respect , OId.8 51.364(b)(l). We do not find in the regulation a time periodwithin which the stationor iasptor whom licenseis smpnded mustrequest a hearing. 91d.

‘ Old.8 51.364(d)(2). IlPerry v. Houston

Indep. Sch. Dist., 902 S.W.ld 544,548 (Tex. App.-Houslon [lst Dii] 1995, writdism’dw.o.j.) (citing Board o/Regents Y. Roth, 408 U.S. 564, 577 (1972);Nelson Y.Pws, 827 F. Sqq. 1273, 1275(SD. Tex. 1992).affd, 18E3d 935 (5thCir. 1994)). 12Sce12ATEX.

JLR. 3DConsYituliona~

tcm 8 177.at 607 (1993).

‘%ee Universiry

ojTrr. Medical Sch. Y. Than, 901 S.W.Zd 926,929 (lk. 1995) (andczu cited therein).

“ Id.

‘%ee id. (and cases citedtherein).

‘ 6Id. (andcasescitedtherein).Mr. Barry R. McBee - Page 4 (DM-4 14)

to immediate, temporary suspensions, the United States Supreme Court has concluded that the state may, in certain circumstances, temporarily suspend a license when (1) the state has an important interest to protect; (2) the state has established probable cause for the suspension; and (3) the licensee has the opportunity for a prompt post-suspension hearing.” We believe Burry v. Bmchi,t* a 1979 United States Supreme Court case, is analogous to the situation about which you ask. Jn that case the Supreme Court considered a rule of the New York State Racing and Wagering Board under which a horse trainer is held responsible if his or her first-, second-, or third-place finisher tests positive for drugs after the horse rar~.*~ The law entitles a suspended licensee to a postsuspension hearing, but the license suspension is effective while the hearing is pending.20 Under this rule, the Racing and Wagering Board temporarily suspended (for fitteen days) John Bar&i’ s license.21 Bar&i claimed the state violated his due-process rights by temporarily suspending his license without a pre-suspension hearing.22 While the Court agreed that Bar&i had a property interest in his license, and that the suspension of the license thus implicated Bar&i’ s due-process rights, the Court disagreed that the State, before suspending the trahting license, must determine whether a kensee is guilty in the drugging.23 The court initially recognized the State’ s “important interest” in “assuring the integrity of the racing carried on under its auspices”24 Furthermore, the Court found that the State sufficiently established probable cause that Bar&i was, at the least, negligent: the State had the testimony of its testing official, who allegedly examined Bar&i’ s horse in accordance with prescribed testing procedures.sr Because the State did not provide for a prompt post-suspension hearing and prompt

“&my Y. Barchi, 443 U.S. 55.64 (1979). 18443 U.S. 55 (1979). 191d. at 58. 2oId.at 59. 2 ’ 1d. nId. at61. nld. at 64.

“ Id. 2sId. at 65. The SupremeCourt indicated thata stale need not, in establishingprobable cause. ‘resolvequestions

of mdibility andconflictsin the evidence.” Id.Mr. Barry R. McBee - Page 5 (DM-4 14)

disposition of the outstanding issues between Bar&i and the State, however, the Supreme Court ultimately determined that Bar&i’ s due-process rights were violateds Similarly, the United States Court of Appeals for the Fifth Circuit concluded that a temporary suspension of a horse owner’ s license under Louisiana law did not require a pre-suspension hearing.27 While recognizing the horse owner’ s substantial interest in his hceuse, the court also recognized the state’s important interest in protecting the integrity of horse racing.28 In addition, the court found that “‘ the likelihood of governmental error is small” because the evidence came from inconsistent documents that the horse owner had tiled himself and the state had questioned him about the inconsistency.29 Finally, the court found that the state provided an opportunity for a prompt hearing on the suspension.30 We believe a court, using the three-factored analysis set forth above.31 would find that’the immediate, temporary suspension at issue here satisfies federal due-process requirements as a matter of law. Preliminarily, we assume that a station’ s or inspector’ s license to perform emissions inspections and maintenance is a property right that the state cannot take without due process of law.32 Considering the three factors, we believe first that a court would conclude that the immediate, temporary suspension protects an %Id. at 66. nGamble v. Webb, 806 F.2d 1258, 1261(StbCir. 1986).
%ee id. 291d.at 126142. Mid. at 1261.
3’See suprcr

text accompaqiog oote 17, “Texas warts hm wncludcd thatan lndivldnal+a licensetoengagein a kgltlmamoccupation is a propaty right pmrected onder ankle I, section 19 of lhe conslitotion. See, rg., Indwrial Accident Rd. Y. O’lknvd, 303 S.W.Zd

763.767 (Tax. 1957)(rightto pm&c beforeadminlatralivc hoard); Sam‘a Loan Ogice, Inc. Y. City o/Beaumont, 49 S.W.Zd1089, 1091 (Tax. Comm’nApp. 1932, holding approved) (aueIioncer);

Font v. C~PT,

867 S.W.Zd

873,875 (Tax. App.-Honaton[lal Diat.] 1993,writdiffn’dw.0.j.) @ail bnnds’ writer); Denton v. Ciry ofAustin, 587 S.W.2d 56, 58 (Tax. Clv. App.-Beaumont 1979, no wit) (eleatrlclan);

Francisco Y. LSoard

of Dental Examiners, 149 S.W.ld 619. 622 (Tax. Civ. App.- Austin 1941, tit rd’d) (citing Shermrm v. StareEd. of Dental Erominers, 116 S.W.2d 843 (Tax. Clv. App.-Sao Antonio 1938,wit r&d)) (dentist). C/: generally Phillipsv. Vam&grifi 711 F.M 1217, 1222 (5th Cir. 1983) (and cases cited therein) (quotingTruax v. Raich, 239 U.S. 33.41 (1915)) (slat@ that “the rightto workfora living in the commonoccnpationa of the wmmmdty is of the veryaamnca of the pramal fmedom and oppormnity”that due-proms clanae in 14th amcmlment to United Statea Constitution

meantto seeme). Liiewisc, a cmpnrstion’s permitto sell eigattes has been held to entitle the permit

holderlo due processbcfomthe slatemayfinally forfait the pmnit. Home of Tobacco, Inc. v. Chlverf, 394 S.W.2d654,657 (Tax. 1965).Mr. Barry R McBee - Page 6 (DM-4 14)

important state interest.” The govemmental interest involved includes protecting and improving the nation’ s air quality, thereby promoting the public health and welfare.” Moreover, permitting a station or inspector to continue to inspect and perhaps illegally approve emissions systems pending a suspension hearing may enable hundreds of vehicles with faulty emissions systems to continue polluting for another year.35 Second, we believe that a court would conclude that, by following the procedure as set forth in the federal rules, the state may establish probable cause for the suspension. Under the rules, immediate, temporary suspension is based upon the state’ s overt or wvert performance audits.M Additionally, the state inspector who finds a violation or equipment failure cannot suspend a license without a superior’ s approval. 37 Third, we believe a court would find that the federal rules provide a licensee with an opportunity for a prompt hearing. If the hcensee requests a hearing, the state must provide one within fourteen days of the requestss Nevertheless, particular situations may arise in which the state, as a matter of fact, fails to provide a licensee appropriate due process. For example, in a particular case, the state may not, in fact, establish probable cause to temporarily suspend a license. Whether, in a particular case, the state violates the due-process clauses of the federal and state wnstitutions is a question requiring the resolution of fact questions; the issue is, wnsequently, inappropriate to the opinion process.39 We conclude, therefore, that a court would determhte that the immediate, temporary suspension procedure set forth in the federal regulations does not violate the federal constitution’ s due-process clause and thus does not violate the Texas Constitution’ s due-process clause. Indeed, if the immediate, temporary suspension

“See Bany Y. Bar&i. 443 U.S. 55.64 (1979). %See 42 U.S.C. $7401@)(l); Health& SafetyCode# 382.01l(a)(3), (b). 35See 40 C.F.R .g 51.355(a) (squiring, unless state sdpulates othawiw, ammal vehicle inspwiiorL8). Wee id 8 51.364(b)(l).

“ Id. 38Evcn if the suspension becomes final without a hearing because the inspection station or inspocm did not mquesta hearing, we do not believe the suqwsion nuxsarily violates the state or federaldue-pmcessprovisions. The state must provideonly an opporhmiy to be heard. See Bell v. Bum, 402 U.S. 535,542 (1971) (quoting Mullonev. Central HanoverBank & TIWICo., 339 U.S. 306, 313 (1950)). 39See, cg., Attorney

GencmlOpinionsDM-98 (1992) al 3, H-56 (1973)at 3, M-187 (1%8) at 3. O-2911(1940) at 2.Mr. Barry R. McBee - Page 7 (DM-4 14)

procedure violates the federal constitution, the procedure would be illegal in all fifty states, and we have found no court cases from other jurisdictions making such a finding. Because we reach this conclusion, we cannot find that the state constitution bars Texas’ compliance with the immediate, temporary suspension procedurea

‘?9ee 40 C.F.R 8 51.364(d)(2). In your briefto this oftice, yoo wntend that tbe immediate, temporary

suspensionrequirement

violatestbe Texas Constitution’s due-process

dame, and yoo premise yoor a@oment

pkarily on statecase law declaring that me atatemay not tinatly revokeor mapenda license prior

to a hearingwilhoot violating the licensee’sdoe-process rights. The immediare

mapension is tempos, not final, however. With one exception.which we will diaeoaa below, the eaaea

yoo eke path 10a fid, not temporary. license aoapeoaioo.

See House of Tobacco, Inc. v. Ca/vert, 394 S.W.zd 654 flex. 1965);Industrial Accident Bd. Y. O’Dowd, 303 S.W.Zd 763 flex. 1957);Francisco v. Board of Denta Examiners, 149 S.W.Zd 619 (Tcx. Civ. App.-Austin 1941, writ ref’d); Denton Y. Ciy ofAusfin, 587 S.W.2d 56 (Tex. Cit. App.-Beaumont 1979, no tit); Smith V. Speir, 504 S.W.Zd936 flex. Cii. App.-Fort Worth 1974, no writ); Texas Lkp’t of Public scrjc~~ Y. Hamilton, 304 S.W.2d 719 flex. Civ. App.-Eaadaod). ardper curiam. 306 S.W.Zd 712 (Tex. 1957). Underthe federala&me, on the other hand, the mapensionmaynot becometinal until a hearingis held, if the ieapection stationor inspector mqueas one, orif thestationorinspector doe8 not request

a hearing. Moreover,

Eel/ Y. Burson, 402 U.S. 535 (1971). the only case you cite that penains to the temporarysuspensionof a licenae,is not contrary 10our conclusion here.Bell predates Barry v. Barchi, 443 U.S. 55 (1979), and Gamblev. Webb, 806 F.2d 1258 (StbCir. 1986), and Bell did not oaetbe tbreefhctomdanslysis thatthe COURS appliedin Eaq aod Gamble. See sapra notes 17-30and accompaoyiog ICXL Furthermore,

the import

of Bell appears

to be thata stare

may not imposea temporary aoapenaion basedupon a certain

issue unlessbefore

the suspeeaion

becomea effoedveme statepermita tbe licenseeto presentevidenceon that issue or the state makea its own finding on that issue. Here,by wntrast, the aratute makes speeiticproviaiona for the atate

to establishprobablecause to believe that the stationor impectoris violatingthe lawor baaaoffered aa equipment

failore“Ihat

directly affecta emission mduetion lmetlts.” See 40 C+.R 5 51.364(b)(l). For these rearmuand otbea, we believe Barryand Gamble provide permaaive

authority forOUT conclusion.Mr. Bany R. McBee - Page 8 (DM414)

SUMMARY The immediate temporary suspension requirement in 40 C.F.R. 3 51.364(b)(l), under which a state must authorize a quality assurance officer temporarily to suspend, prior to providing a hearing, the license of an inspection station or inspector for violations of the state’ s vehicle emissions inspection and maintenance program, does not violate Texas Constitution article I, section 19, the dueprocess clause, unless it violates the federal constitution. We believe a court would tind that the immediate, temporary suspension requirement does not violate the federal constitution as a matter of law. Whether a particular application of the requirement violates constitutional due-process mandates, however, is a question of fact.

DAN MORALES Attorney General of Texas JORGE VEGA Fii Assistant Attorney General SARAH J. SHIRLEY Chair, Opiion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General