A
                 THE       ATTORNEY    GENERAL
                              0~ TEXAS

                              June 16, 1988




    Honorable Hugh Parmer             Opinion No.   JM-917
    Chairman
    Intergovernmental Relations       Re:     Constitutionality of
    Committee                         section   E(e)  of    article
    Texas State Senate                6701h, V.T.C.S.,    requiring
    P. 0. BOX 12068                   payment of a $10 fee to dis-
    Austin, Texas 78711               miss proceedings for failure
                                      to maintain proof of finan-
                                      cial responsibility
                                      (RQ-1427)

    Dear Senator Parmer:

         The 70th     legislature amended   the Motor    Vehicle
    Safety-Responsibility Act to permit courts to charge a ten
    dollar-fee before dismissing  a criminal charge for failure
    to maintain  proof of financial responsibility,    when the
    charge is based solely on a failure to produce      suitable
    documentary proof of financial responsibility when requested
    by a police officer and when adequate proof is produced at a
    subsequent hearing on the charge. The fee is unconstitu-
    tional.

         The Safety-Responsibility Act requires as a condition
    for the operation    of a motor vehicle that a policy     of
    automobile liability insurance be available in a specified
    amount to insure against potential losses which may arise
    out of the operation of the vehicle, unless the vehicle   is
    exempt, or unless other acceptable arrangements to demon-
    strate financial responsibility have been made.    V.T.C.S.
    art. 6701h, 5 1A. Section 1C of the act makes it a crime to
    fail to maintain financial responsibility.   V.T.C.S.   art.
    6701h, § lC(a).

         Section 1B of the statute mandates   that "every owner
    and/or operator in the State of Texas shall be required,  as
    a condition of driving, to furnish, upon request, evidence
    of financial responsibility. . . .'I   V.T.C.S. art. 6701h,
    5 lB(a). While this section of the statute specifies     the
    appropriate evidence of financial responsibility that must
    be furnished to a police officer who requests it, failure to




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Honorable Hugh Parmer - Page 2   (J&f-917)




furnish the evidence   is not a crime.     In other words,
section 1B of the statute does not create an offense where
the operator of a motor vehicle does not carry documentary
proof of financial responsibility while operating a motor
vehicle.  Attorney General Opinion MW-577 (1983). See also
Attorney General Opinion JM-439   (1986).I The legislature
remains free to make the failure to carry proof of financial
responsibility when operating a motor vehicle a crime.

     The statute sets out as a *'defense" to a prosecution
for failure to      maintain  financial responsibility    the
production of documentary proof of financial   responsibility
that was valid at the time that the "offense is alleged to
have occurred."    In such a case, "the charge shall be
dismissed."  V.T.C.S.   art. 6701h, 5 1D. In other words,
evidence  of financial responsibility     produced  in court
negates any presumption that an offense has been committed.
Thus, if a charge is brought~ for failure to maintain
financial responsibility   based on the presumption   that a
failure to     furnish   documentary   proof   of   financial
responsibility is evidence of a failure to maintain        the
requisite financial responsibility, and sufficient proof of
financial responsibility is furnished, then the defendant is
innocent.

     The 70th legislature amended the statute to require
that persons     found   innocent in   these   circumstances
nevertheless must pay a ten dollar fee when the charge     is
dismissed.   Acts 1987, 70th Leg., ch. 579, 5 1 (eff. Sept.
1, 1987)   (amending section lC, article  6701h, V.T.C.S.).
Imposition of such a fee violates due process.

     The constitutions of both Texas and the United  States
contain provisions   requiring that the state provide due
process in administering the criminal laws.    Tex. Const.
art. I, §§ 13, 19; U.S. Const., amendments V and XIV.
Action by the state must be consistent with the fundamental
principles of liberty and justice. Dixon v. McMullen,   527



   -1. We are aware of a m     curiam decision by a single
court of appeals that sanctions the use of a presumption
based on a failure to produce documentary       evidence of
financial responsibility as the sole basis for a conviction
for failure to maintain financial responsibility. Coit v.
State, 728 S.W.2d 105 (Tex. App. - Austin 1987, pet. ref'd,
n.r.e.). Your questions do not require us to address the
opinion in this case.




                             p. 4593
Honorable Hugh Parmer - Page 3     (JM-917)




F.Supp. 711 (D.C.N.D. Tex. 1981).   Collecting a fee from a
defendant pronounced  innocent by the same statute which
requires the fee departs from the principles     of ordered
liberty. A constitution that does not permit ex post   facto
laws surely does not permit punishment of an act that is not
made unlawful.  See Tex. Const. art. I, 5 16. The law may
not require a defendant to pay a fee in order to obtain the
dismissal of a criminal charge of which the defendant     is
innocent.

     The requirement that an innocent defendant  pay a ten
dollar fee before obtaining the dismissal  of an unfounded
criminal charge has been contrary to our notions of due
process and the law of the land since Magna Carta.     ("We
will sell to no man . . . either justice or right."   Magna
Carta, ch. 40, revrinted in 11 Guide to American Law 252).
See also Tex. Const. art. I, §§ 13, 19.

                       SUMMARY

           Article 6701h, section lC(e) of the Motor
        Vehicle Safety-Responsibility  Act is uncon-
        stitutional.  Criminal defendants innocent of
        a charge may not be required to pay a fee in
        order to have the charge dismissed.




                                     Ll h&c
                                      Very truly yo r ,

                                           A
                                      JIM     MATTOX
                                      Attorney General of Texas

MARYKELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General




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