                             QBfficeof the !Zlttornep @eneral
                                           Mate of Gexae
DAN MORALES
 Al-roRxEY
        CESERAL                             September 23.1996

      Mr. Bany R. McBee                               Opiion No. DM-4 14
      Chair, Texas Natural Resource
       Conservation Commission                       Re: Whether the state constitutionally
      P.O. Box 13087                                 may implement, as part of its vehicle
      Austin, Texas 7871 l-3087                      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 crlso42 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&atetest).

        ‘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 regulationsrequirea 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 inspectorfollows requiredrecord-keepingpraalces; whether the station or lmpecmr properly
displays li-      and artiticates that arc requiredto be displayed;and whether each tmpectcr properly
pcrformaan impectlon. Id. 0 51.363(a)(3).covert pcrfonnanceaudits must tnclude.anion8 otker thln8s.
remnte visd ohmvation of inspector performana; site visits at least once per year per number of
inspectorsusing covertveklclcsset to fail; and for stationsthat comtnctboth testing an6 rep&s, at least
one coven vehiclevisit per stationper year includingthe purchaseof rep&s an6 subsequentretesting. 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 regulationa time periodwithin which the station or
iasptor whom license is smpnded mustrequesta hearing.

        91d.

        ‘Old. 8 51.364(d)(2).

         IlPerry v. HoustonIndep. 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)).

        12Sce12A TEX.JLR.3DConsYituliona~
                                       tcm 8 177. at 607 (1993).

        ‘%ee UniversiryojTrr. Medical Sch. Y. Than, 901 S.W.Zd926,929 (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 post-
suspension 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).

        18443U.S. 55 (1979).

        191d.at 58.

        2oId.at 59.

        2’1d.

        nId. at 61.

        nld. at 64.

        “Id.

         2sId. at 65. The SupremeCourtindicatedthat a stale need not, in establishingprobablecause.
‘resolve questionsof 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 suprcrtext accompaqiog oote 17,

         “Texas warts hm wncludcd thatan lndivldnal+alicense to engage in a kgltlmam occupationis
a propaty right pmrectedonder ankle I, section 19 of lhe conslitotion. See, rg., Indwrial Accident Rd.
Y. O’lknvd, 303 S.W.Zd763.767 (Tax. 1957) (rightto pm&c beforeadminlatralivchoard);Sam‘aLoan
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.Zd873,875 (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. LSoardof Dental Examiners, 149 S.W.ld 619. 622 (Tax. Civ. App.-
Austin 1941, tit rd’d) (citing Shermrmv. StareEd. 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 commonoccnpationaof the wmmmdty is of the very aamncaof the
pramal fmedom and oppormnity”that due-proms clanae in 14th amcmlment to United Statea
Constitutionmeant to seeme). Liiewisc, a cmpnrstion’spermitto sell eigattes has been held to entitle
the permitholderlo due processbcfom the slate may finally forfaitthe 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 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) (quotingMullonev. Central HanoverBank & TIWI Co., 339 U.S. 306,
313 (1950)).

        39See,cg., AttorneyGencml OpinionsDM-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,
temporarysuspensionrequirementviolates tbe Texas Constitution’sdue-processdame, and yoo premise
yoor a@omentpkarily on state case law declaringthat me atate may not tinatly revokeor mapenda
license priorto a hearingwilhoot violating the licensee’sdoe-processrights. The immediaremapension
is tempos, not final, however. With one exception.which we will diaeoaabelow, the eaaeayoo eke
path 10a fid, not temporary.license aoapeoaioo.See House of Tobacco, Inc. v. Ca/vert, 394 S.W.zd
654 flex. 1965);IndustrialAccident Bd. Y. O’Dowd, 303 S.W.Zd763 flex. 1957);Francisco v. Board of
Denta Examiners, 149 S.W.Zd619 (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.Zd712 (Tex. 1957). Underthe federala&me, on the other
hand, the mapensionmay not become tinal until a hearing is held, if the ieapectionstation or inspector
mqueas one, or if the stationor inspectordoe8not requesta hearing.

        Moreover,Eel/ Y. Burson, 402 U.S. 535 (1971). the only case you cite that penains to the
temporary suspensionof a licenae, is not contrary10 our conclusion here. Bell predatesBarry v. Barchi,
443 U.S. 55 (1979), and Gamble v. Webb, 806 F.2d 1258 (Stb Cir. 1986), and Bell did not oae tbe tbree-
fhctomdanslysis that the COURSapplied in Eaq aod Gamble. See sapra notes 17-30 and accompaoyiog
ICXLFurthermore,the importof Bell appearsto be that a staremay not impose a temporaryaoapenaion
based upon a certainissue unless beforethe suspeeaionbecomeaeffoedve me statepermitatbe licensee to
present evidence on that issue or the state makeaits own finding on that issue. Here,by wntrast, the
aratutemakes speeitic proviaionafor the atateto establishprobablecause to believe that the station or
impectoris violatingthe law or baaaofferedaa equipmentfailore “Ihatdirectlyaffectaemission mduetion
lmetlts.” See 40 C+.R 5 51.364(b)(l). For these rearmu and otbea, we believe Barry and Gamble
providepermaaiveauthorityfor 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 due-
         process 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
