                                         The Attorney          General of Texas
                                                          December 31, 1982

MARK WHITE
Attorney General


                                        Honorable David G. Lewis                 opinion No. MN-577
Supreme      Court Building
                                        Sherman County Attorney
P. 0. BOX 12546
Austin.    TX. 76711. 2546
                                        P. 0. Box 986                            Re: Enforcement of the com-
5121475.2501                            Stratford, Texas   79084                 pulsory liability insurance
Telex    9101674-1367                                                            provisions of article 6701h,
Telecopier      512/475-0266                                                     V.T.C.S.

1607 Main St.. Suite 1400
                                        Dear Mr. Lewis:
Dallas.   TX. 75201.4709
2141742-6944                                 You have posed questions about sections 1A through 1G of article
                                        6701h, V.T.C.S., new provisions of the Safety Responsibility Law which
4624 Alberta       Ave., Suite    160
                                        were enacted by the legislature in 1981. See Acts 1981, 67th Leg.,
EI paso. TX.       79905.2783
                                        ch. 800, at 3053. In pertinent part, your letter reads:
915,533.3464
                                                    My specific questions are:
1220 Dallas Ave., Suite          202
Houston,     TX. 77002.6866
                                                     (1) Does article 6701h, section 1B. V.T.C.S..
7131650.0666                                         require    that     evidence   of    financial
                                                     responsibility, via... automobile liability
                                                     insurance, be    in the possession of       an
606 Broadway,        Suite 312                       owner/operator of a vehicle while operating
Lubbock,     TX.    79401-3479
606/747~i238
                                                     that vehicle upon public roads and highways ii
                                                     the state of Texas?

4309 N. Tenth. Suite B                               (7.1 upon   subsequent proof    at   trial of
McAllen.     TX. 76501-1665                          financial responsibility by an owner/operator
5121662-4547
                                                     of a vehicle, is the presumption created in
                                                     article 6701h, section ID, V.T.C.S., rebutted?
 200 Main Plaza, Suite 400
 San Antonio,  TX. 76205-2797                In answer to your first inquiry, we observe that section 1B does
 512,225.4181                           not require the owner or operator of a vehicle to furnish evidence of
                                        financial responsibility upon request; it requires only that
 An Equal      OpportunitYI             "information concerning evidence" be furnished.
 Affirmative     Action     Employer
                                             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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Honorable David G. Lewis - Page 2 (FwIw-577)




          officer of the State of Texas or any subdivision
          thereof, or agent of the Department, 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
insurance company confirming coverage, must be in the possession of 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 insurance policy,
the statutory provision is satisfied if the owner or operator
furnishes adequate information about the evidence of his financial
responsibility when 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 the negative.

     Section D is of relevance to your second question; section 1D of
the statute reads:

             Failure to give information as required in
          Section lB, or the giving of information which is
          false, will raise a rebuttable presumption of
          failure to maintain financial responsibility.

     Section 2.05 of the Penal Code governs the evidentiary effect of
statutory presumptions.     The provision, which only covers the
operation of statutory presumptions as rules of evidence in criminal
trials, see 1 R. Ray, Texas Law of Evidence §58 (Texas Practice 3d ed.
1980), and does not restrict the use of statutory presumptions for
other purposes, reads in part:

             When this code or another penal law establishes
          a presumption with respect to any fact, it has the
          following consequences:

               (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 submitted to the jury, unless the court
             is satisfied that the evidence as a whole
             clearly precludes a finding beyond a reasonable
             doubt of the presumed fact; and

               (2) if    the existence of the presumed 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....
             (Emphasis   added).




                                  p. 2134
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        Honorable David G. Lewis - Page 3     (MW-577)




             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 reasonable doubt. U.S. Const. amends. V,
        XIV; Tex. Const. art. I, 019; Mullaney v. Wilbur, 421 U.S. 684 (1975);
        In re Winship, 397 U.S. 358 (1970); Cracker v. 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) (not yet 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 presumption would
        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 terms of the presumption.

             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
        offense under 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 financial responsibility at 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
                 Safety Responsibility Law.

                                                 Very truly yours,



                                                 M A R-K   W HI T E
                                                 Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General




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Honorable David G. Lewis - Page 4   (Mw-577)




RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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