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. 

%ee 40 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 55 51.350, .355(a), .356(a), (h); see crlso 42 U.S.C. pg 7521(a), 7525.7541. 

‘See id. 8 51.357(a)(7) -(13); see also 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 state with a vekicle inspeaion and maintenan~ 

pm8ramtownduct,onare@rbasis,over&an6awertpufonnance audits. Id. 0 51.363(a). Overt 

perfonnana audits, which the state rust perform at least billy for each test bsy, must include 

chedringto~whclherthcstationor~robscrvcsappmpriatcdacumcnts&urity,~whaha 

station or inspector follows required record-keeping praalces; whether the station or lmpecmr properly 

displays li- and artiticates that arc required to be displayed; and whether each tmpectcr properly 

pcrforma an impectlon. Id. 0 51.363(a)(3). covert pcrfonnance audits must tnclude. anion8 otker thln8s. 

remnte visd ohmvation of inspector performana; site visits at least once per year per number of 

inspectors using covert veklclcs set to fail; and for stations that comtnct both testing an6 rep&s, at least 

one coven vehicle visit per station per year including the purchase of rep&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 period within which the station or 

iasptor whom license is smpnded must request 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, 

writ dism’d w.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, 18 E3d 935 (5th Cir. 1994)). 

12Sce 12A TEX. JLR. 3DConsYituliona~ tcm 8 177. at 607 (1993). 

‘%ee Universiry ojTrr. Medical Sch. Y. Than, 901 S.W.Zd 926,929 (lk. 1995) (and czu cited 

therein). 

“Id. 

‘%ee id. (and cases cited therein). 

‘6Id. (and cases cited therein). 
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. at 61. 

nld. at 64. 

“Id. 

2sId. at 65. The Supreme Court indicated that a stale need not, in establishing probable cause. 

‘resolve questions of mdibility and conflicts in 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 (Stb Cir. 1986). 

%ee id. 

291d. at 126142. 

Mid. at 1261. 

3’See suprcr text accompaqiog oote 17, 

“Texas warts hm wncludcd that an lndivldnal+a license to engage in a kgltlmam occupation 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) (right to pm&c before adminlatralivc hoard); Sam ‘a Loan 

Ogice, Inc. Y. City o/Beaumont, 49 S.W.Zd 1089, 1091 (Tax. Comm’n App. 1932, holding approved) 

(aueIioncer); Font v. C~PT, 867 S.W.Zd 873,875 (Tax. App.-Honaton [lal Diat.] 1993, writ diffn’d w.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. Stare Ed. of Dental Erominers, 116 S.W.2d 843 (Tax. Clv. 

App.-Sao Antonio 1938, wit r&d)) (dentist). C/: generally Phillips v. Vam&grifi 711 F.M 1217, 1222 

(5th Cir. 1983) (and cases cited therein) (quoting Truax v. Raich, 239 U.S. 33.41 (1915)) (slat@ that 

“the right to work for a living in the common occnpationa of the wmmmdty is of the very aamnca of the 

pramal fmedom and oppormnity” that due-proms clanae in 14th amcmlment to United Statea 

Constitution meant to seeme). Liiewisc, a cmpnrstion’s permit to sell eigattes has been held to entitle 

the permit holder lo due process bcfom the slate may finally forfait the pmnit. Home of Tobacco, Inc. v. 

Chlverf, 394 S.W.2d 654,657 (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 & Safety Code # 382.01 l(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 mquest a hearing, we do not believe the suqwsion nuxsarily violates the state or 

federal due-pmcess provisions. The state must provide only an opporhmiy to be heard. See Bell v. 

Bum, 402 U.S. 535,542 (1971) (quoting Mullone v. Central Hanover Bank & TIWI Co., 339 U.S. 306, 

313 (1950)). 

39See, cg., Attorney Gencml Opinions DM-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 brief to this oftice, yoo wntend that tbe immediate, 

temporary suspension requirement violates tbe Texas Constitution’s due-process dame, and yoo premise 

yoor a@oment pkarily on state case law declaring that me atate may not tinatly revoke or mapend a 

license prior to a hearing wilhoot violating the licensee’s doe-process rights. The immediare mapension 

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

path 10 a 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.Zd 936 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). Under the federal a&me, on the other 

hand, the mapension may not become tinal until a hearing is held, if the ieapection station or inspector 

mqueas one, or if the station or inspector doe8 not request a hearing. 

Moreover, Eel/ Y. Burson, 402 U.S. 535 (1971). the only case you cite that penains to the 

temporary suspension of a licenae, is not contrary 10 our conclusion here. Bell predates Barry v. Barchi, 

443 U.S. 55 (1979), and Gamble v. Webb, 806 F.2d 1258 (Stb Cir. 1986), and Bell did not oae tbe tbreefhctomd anslysis that the COURS applied in Eaq aod Gamble. See sapra notes 17-30 and accompaoyiog 

ICXL Furthermore, the import of Bell appears to be that a stare may not impose a temporary aoapenaion 

based upon a certain issue unless before the suspeeaion becomea effoedve me state permita tbe licensee to 

present evidence on that issue or the state makea its own finding on that issue. Here, by wntrast, the 

aratute makes speeitic proviaiona for the atate to establish probable cause to believe that the station or 

impector is violating the law or baa aoffered aa equipment failore “Ihat directly affecta emission mduetion 

lmetlts.” See 40 C+.R 5 51.364(b)(l). For these rearmu and otbea, we believe Barry and Gamble 

provide permaaive authority for OUT 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