           THE    ATTORNEY        GENERAL
                     OF   TEXAS


                     Novaber 23, 1987




Honorable Juan J. Hinojosa         Opinion NO. JM-826
Chairman
Criminal Jurisprudence             Re:   Constitutionality of
   Committee                       statute requiring out-of-
Texas House of Representatives     state motorists, including
P. 0. Box 2910                     aliens, to comply     with
Austin, Texas 78769                Texas liability coverage
                                   requirement (RQ-1271)
Dear   Representative Hinojosa:

     You ask about the constitutionality of a recent
amendment to the Texas Motor Vehicle Safety-Responsibility
Act, article 6701h, V.T.C.S.    The Safety-Responsibility
Act, among other things, generally forbids the operation
of most motor vehicles in Texas unless an automobile
liability insurance policy, in a certain minimum amount,
is   available   to   "provide   evidence   of   financial
responsibility . . . to insure against potential losses
which may arise out of   the operation of that vehicle."
V.T.C.S. art. 6701h, §lA.
     Prior to    a recent    amendment to    the   Safety-
Responsibility Law, m      Acts 1987, 70th Legislature,
chapter 289, section 1, at page 3252, vehicles that were
both registered to and operated by non-resident drivers
(unless primarily operated in Texas) were exempt from the
general requirement that adequate automobile liability
insurance be maintained in order to operate the vehicle in
Texas. Id. Now, vehicles operated by both residents and
non-residents alike    must   be covered    by   liability
insurance, or otherwise satisfy the requirements of the
Safety-Responsibility Act, whenever they are operated in
Texas. Thus, any vehicle, with only a few exceptions,
driven into, or through,      Texas is subject to      the
strictures of the Safety-Responsibility Act. Again, in
most cases, this means vehicles registered to and operated
by non-residents in Texas must be covered by adequate
automobile liability insurance policies.




                             p. 3939
Honorable Juan J. Hinojosa - Page 2 Of-8261




     You are concerned that the removal of the general
exemption from the mandatory liability insurance reguire-     -.
ment for vehicles operated in Texas by non-residents may
be an impermissible burden on foreign or interstate com-
merce, and thus violate the United States Constitution.
U.S. Const. art. I, 58, cl. 3. you note that removal of
the exemption from the requirements of the         Safety-
Responsibility Act for     non-resident operators     will
require operators driving vehicles into or through Texas,
even on the most casual basis -- such as tourists on a
brief excursion into the state from a neighboring state or
from Mexico1 -- to have automobile liability insurance of
the kind required by the Safety-Responsibility Act.    You
note that the imposition      of a mandatory     liability
insurance requirement may make it more expensive for
interstate and foreign commerce to move into and through
Texas. We can, in fact assume that some non-residents
will refrain from entering into Texas to engage in
interstate or foreign commerce, because they are either
unable or unwilling to obtain the necessary automobile
liability insurance.2    In short, enforcement of      the
Safety- Responsibility Act will burden interstate and
foreign commerce to some as yet unforeseen degree.
     However, the application of the Safety-Responsibility
Act to all vehicles operated on the highways of Texas,
whether by a resident or a non-resident, cannot be
considered to be an unconstitutional burden on foreign and
interstate commerce. We are confident that the amendment
requiring non-resident motorists to comply with the Act is
a legitimate exercise of the state's police power, even
thouah the annlication of      the law to     non-resident
 0
fi                                    ve t        lw    of
mterstate and foreian commerce into or throuah the state.



   1. We do not believe that the Safety-Responsibility
Act reasonably can be conceived as an attempt by Texas to
regulate immiaration from a foreign country, a power which
belongs exclusively to the federal government.      Oceanic
Steam Naviaation Co. v . Stranahan, 214 U.S. 320 (1909).
                                                              ?
   2. We understand that the State Board of Insurance is
readying plans to assure that liability insurance, on a
short-term basis, will be available at affordable rates
for visitors.




                           p. 3940
                             :




     Honorable Juan J. Hinojosa - Page 3   (JM-826)




          The operation of a motor vehicle on the highways of
     Texas is a privilege subject to regulation under the
     state's police power to protect legitimate public inter-
     ests. Gilla ore v     Denartment of Public Safe v
     S.W.2d 177 (tex. 1953), cert. denied 347 U.S. 933 t(i95iyq
                 ment of Public Saf tv V.      Richardson, 384
     S.W.2d,l28 (Tex. 1964). See alsz D C Hall C . v. State
     Hiahwav Comm'n 330 S.W.ld 904 (Tex: Civ.,Appo - El Paso
     1959, writ ref:d n.r.e.) cert. @D&&   364 U.S. 901 (1960).
     The sole purpose of the Safety-Responsibility Act is to
     "encourage safer use of motor vehicles on the streets and
     highways of Texas and to deny the privilege of driving to
     reckless and financially irresponsible persons."      Acts
     1951, 52nd Deg., ch. 498, at 1210.
          So long as Congress has not acted to preempt the
     field, the state may enact uniform legislation necessary
     to protect the public, and such rules can apply to all
     motor vehicles operating on the state's highways, whether
     in interstate    or intrastate    commerce.    Regulations
     affecting foreign commerce must be examined on the same
     grounds as those affecting interstate commerce.       See.
.-   e.a., United States v. Carolene Products Co., 304 U.S. 144
     (1938). The Safety-Responsibility Act is clearly designed
     to promote the public interest of requiring operators of
     vehicles Texas on highways to take responsibility for any
     damage they may cause. State v. United Bondina Ins. co.,
     450 S.W.Zd 689 (Tex. Civ. App. - Austin 1970, no writ).
          The legitimate exercise of the state's police power
     represented by the Safety-Responsibility Act does impose a
     burden on interstate and foreign commerce conducted into
     and through Texas. The federal government, of course, may
     preempt the exercise of state police powers that affect
     interstate and foreign commerce. We are aware of neither
     a federal statute nor a treaty which preempts the field of
     state-mandated automobile insurance.3 But in the absence


        3. The United States has entered into no bilateral
     agreements with Mexico concerning reciprocal automobile
     insurance or indemnity requirements,     See aenerallv
     United States Department of State,
                                    . .   Treaties  in Ford
     (1987).    We   express                 concerning  the
     applicability, if any, of?he oE:i%ons    of the General
     Agreement on Tariffs and Trade, TIAS 1700, to your
     concern.




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Honorable Juan J. Hinojosa -   Page   4   (JM-826)




of such explicit preemption, a state may impose on
vehicles using its highways in interstate and foreign
commerce  nondiscriminatory regulations to protect the
public. Bibb v. Navaio Freiaht Lines. Inc,, 359 U.S. 520
(1959).
     A state's regulation of its highways for the safety
and convenience of the public will carry with it a strong
presumption of validity. fi. The exercise of the police
power genuinely designed to protect a legitimate public
interest in safe and convenient highway travel, so long as
it is untainted by impermissible motives, such as a
disguised desire to promote local economic interests at
the expense of interstate and foreign commerce, see, e-a.,
Buck v. Kuvkendall, 267 U.S. 307 (1925), appears always to
be found constitutional:
      Few subjects of state regulation are so
      peculiarly of local concern as is the use of
      state highways. There are few, local regula-
      tion of which are so inseparable from a
      substantial effect on interstate commerce.
      . . . The state has a primary and immediate
      concern   in   the    safe   and  economical
      administration     [Of    state   highways].
      [Rlegulations . .     if they are to accom-
      plish their end, m&t be applied alike to
      interstate and intrastate traffic moving in
      large volume over the highways. The fact
      that they affect alike . . . interstate and
      intrastate commerce . . . is a safeguard
      against their abuse.
South Car lin    Hiahwav DeDartment       v. Barnwell   Brothers,
Inc., 303"LL"   177, 187 (1938).4




   4. Of course, the      state may not     violate other
constitutional safeguards in pursuing efforts to protect
the public welfare on the highways.  See Attorney General
Opinion   JR-546    (1986)   (post-accident    impoundment
provisions of section 4A of the Safety-Responsibility Act
applicable to motorists not domiciled in United States
unconstitutional deprivation of property      without due
process of law.)




                           p. 3942
Honorable Juan J. Hinojosa - Page 5 (J&826)




     Stated somewhat differently, a state's police Dower
regulation affecting interstate and foreign commerce on
its highways will be found to be valid unless that
regulation can be found to be either a           completely
irrational attempt to address a legitimate state interest,
or exercised only as a       pretext in pursuit of
illegitimate end. See. e.a     Southern Pat . C0. v. Stat:
of Arw    , 325 U.S. 761 (19;5). Thus, a state regulation
adopted for some purpose within its legitimate powers to
promote the safe use of its highways will be permitted,
even when the regulation has the potential for stopping
the flow of motor vehicles from another state or from a
foreign country, such as Mexico. Buck v. PeoDle of State
of Calif-      343 U.S. 99 (1951) (regulations, including
fee, for lice;se on taxicabs going to and from Mexico held
not to    be an    unconstitutional burden     on   foreign
commerce).5
     Of course, the balance between the constitutional
values protecting the free flow of interstate and foreign
commerce and the state's interest in protecting the
well-being of its citizens must be determined         with
reference to the facts unique to each potential conflict.
Bibb v. Navaio Freiaht T#ines.Inc., 8uDrq; Southern Pac.
 0. v.   ate of Arizona, suDrq. Some local regulations,
which are otherwise permissible exercises of a state's
police powers, may be found to be so burdensome on inter-
state commerce or so illusory in their true contributions
to the public safety and welfare of a state that they will
not be permitted to stand. The concepts of mandatory
automobile liability insurance or financial responsibility
laws are hardly novel ones; in fact, it may be likely that
most vehicles driven into or through Texas in the course
of a journey in interstate or foreign commerce are
operated or owned by those which are either familar with
such concepts or from jurisdictions who have adopted such


   5. The constitutional     right   to free    interstate
movement is subject to reasonable regulation by a state.
ShaDirO v. ThOmDSOn 394 U.S. 618 (1969); see alS0 Edwards
v. California, 314 U.S. 160 (1941), )~BEconcurring opinion
of the Justice Jackson (there is no right to interstate
travel free from restrictions against causing harm to
others).   See aenerallv Annot. Federal Constitutional
Right of Interstate Travel -- Supreme Court Cases.   27 L.
Ed. 2d 862 (1970).




                           p. 3943
Honorable Juan J. Hinojosa - Page 6 (~~-826)




principles.6 While we understand that the Department of
Public Safety, which is responsible for administering the
Safety- Responsibility Act, has not yet issued regulations
which provide in detail for the application of the law to
non-resident motorists or their insurers, we think it
extremely unlikely that the courts will find unconstitu-
tional the    non-discriminatory requirement    that   all
vehicles operated in the state meet the requirements
imposed by Texas to protect those who use its highways
from the depredations of drivers otherwise unable to
compensate others for the harm they cause.
                      SUMMARY
         The Commerce    Clause,   United     States
      Constitution, article I, section 8, clause
      3, does not forbid Texas from requiring all
      vehicles using the highways of the state to
      comply with the mandatory liability insur-
      ance requirements of the Motor         Vehicle
      Safety-Responsibility Act, article 6701h,
      V.T.C.S. The Act is a permissible exercise
      of the state's police powers to regulate   its
      highways to protect the public welfare.
      Congress may preempt the application of the
      Safety-Responsibility Act     to     vehicles
      operated in interstate or foreign commerce.




                                   JIM     MATTOX
                                   Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLRY
Special Assistant Attorney General



   6.  We understand, for example, that evidence exists to
suggest that many of those motorists from Mexico involved
in accidents in Texas have liability   insurance which is
valid here.




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Honorable Juan J. Hinojosa - Page 7 LJM-826)




RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General




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