                                     The Attorney        General of Texas
                                                     March 16. 1984
    JIM MATTOX
    Attorney General



    Supreme Court Building         James B. Adams                           Opinion No. JM-138
    P. 0. BOX 12548                Director
    Austin, TX. 78711. 2545        Texas Department of Public Safety        Re:   Authority to enforce
    512/475-2501
                                   5805 N. Lamar Boulevard                  criminal penalties pursuant
    Telex 9101874-1367
    Telecopier   512/475-0266
                                   Austin, Texas   78773                    to article 6701d. V.T.C.S..
                                                                            requiring vehicle emission
                                                                            inspectinn and maintenance
    714 Jackson, Suite 700                                                  programs for vehicles regis-~
    Dallas, TX. 75202.4506
    2141742.9944
                                                                            tered in certain counties

                                   Dear Colonel Adams:
    4824 Alberta Ave.. Suite 160
    El Paso, TX. 799052793              You have requested an opinion regarding the parameter motor
    9151533.3464
                                   vehicle emissions inspection program required by a recent amendment to
P                                  article 6701d, V.T.C.S. You ask:
    1001 Texas, Suite 70-I
    Houston, TX. 77002-3111                    1. Can the criminal penalties of the motor
    713/223-5886                            vehicle inspection law be enforced against a
                                            person who operates a motor vehicle which has not
    806 Broadway. Suite 312
                                            been inspected according to rules adopted by the
    Lubbock, TX. 79401.3479                 Department of Public Safety (DPS)?
    SOS,747-5238
                                               2. Can such rules be limited to apply only to
                                            vehicles operated in a designated county?
    4309 N. Tenth. Suite S
    McAllen, TX. 78501.16R5
    5121682.4547                         Article XV of the Uniform Act Regulating Traffic on Highways,
                                   article 6701d. V.T.C.S., deals with inspection of vehicles. Section
                                   140 provides for compulsory inspection of designated motor vehicle
    200 Main Plaza, Suite 400
                                   equipment including the exhaust emission system. The statute provides
    San Antonio, TX. 79205.2797
    512/225-4191
                                   that the Department of Public Safety [hereafter DPS] "shall establish
                                   uniform standards of safety" as to items requiring inspection under
                                   article 6701d, section 140, 142(a), V.T.C.S. It further provides that
    An Equal Opportunity/          the DPS may adopt rules for administration and enforcement of the
    Affirmative Action Employw     motor  vehicle inspection requirement. _Id. §142(c). Section 141(d)
                                   prohibits an inspection station from issuing a certificate of
                                   inspection until a vehicle is found to be

                                             in proper and safe condition and to comply with
                                             the uniform standards of safety, inspection rules
                                             and regulations, and laws of this state.




                                                                 p. 587
Colonel James B. Adams - Page 2     (JM-138)




     These  requirements clearly aeeb    to the safety inspection
described in section 140(a). The legislature has explicitly required
that certain equipment be inspected, leaving only the uniform
standards and method of enforcement to the rulemaking power of the
DPS.

     The Sixty-eighth Legisl.ature enacted Senate Bill No. 1205 to
amend section 142 of article 6701d granting additional authority and
responsibility to DPS by adding the following language:

            (d) The    Public   Safety  Commission   shall
         establish a parameter motor    vehicle  emissions
         inspection and maintenance program for vehicles
         registered in any county in this state which does
         not meet National Ambient Air Quality Standards
         and for which the Texas Air Control Board has
         adopted a resolution requesting the department to
         institute such a program.

             (e) The Public Safety Commission shall adopt
          standards for inspection criteria applicable to a
          county in which such a program, pursuant to
          Subsection (d) of this section, is established.

             (f) The   department may  issue a   unique
          inspection  certificate  for  those  vehicles
          inspected pursuant to Subsection (d) of this
          section.

              (g) The Public Safety Commission may establish
          by rule an inspection fee in addition to the fee
          for    compulsory  inspection as     provided   by
          Subsection (c) of Section 141 of this Act for
          those vehicles inspected pursuant to Subsection
          (d) of this sectiou, and such additional fee shall
          not exceed $5.

             (h) A motor vehicle inspection and maintenance
          program instituted under this Act shall be
          terminated upon     discontinuation of    federal
          requirements for such action.

Acts 1983, 68th Leg., ch. 662, at 4183. 4184.

     Your request raises the issue of whether the DPS has authority to
adopt rules which define the criminal.offense prescribed by sections
140(g) and 141(d) of article 6701(d). We understand your first
question to be whether the operator of a vehicle on the highways of
this state is subject to the misdemeanor provisions of section 143 if




                                  p. 588
        Colonel James B. Adams - Page 3   (JM-138)




        the vehicle does not display a valid inspection certificate issued
        pursuant to standards established by the DPS, including those
        standards established pursuant to section 142(d) concerning vehicle
        emission controls. We hold that such criminal liability under the
        statute does exist.

             There is a constitutional prohibition against delegation of the
        legislative function. TSX. Const. art. II, El. However, it is
        well-established that

                  a legislative body may, after declaring a policy
                  and fixing a primary standard, confer upon
                  executive or administrative officers the power to
                  fill up the details, by prescribing rules and
                  regulations to promote the purpose and spirit of
                  the legislation and to carry it into effect.

        Williams v. State, 176 S.W.Zd 177, 183 (Tex. Crim. App. 1943). The
        legislature may not delegate the power to make a law which prescribes
        a penalty, but it may authorize a commission

                 to prescribe duties or ascertain conditions upon
P                which an existing law may operate in imposing a
                 penalty and in effectuating the purpose designed
                 in enacting the law.

        Tuttle v. Wood, 35 S.W.Zd 1061, 1065 (Tex. Civ. App. - San Antonio
        1930, writ ref'd). Thus, if the legislature in enacting Senate Bill
        No. 1205 has declared a policy and fixed a primary standard to serve
        as existing law for the imposition of a penalty, section 142(e) is a
        valid delegation of rulemaking authority and the parameter motor
        vehicle inspection and maintenance program is enforceable. We do not
        find the delegation to the DPS to be an impermissible delegation of
        legislative authority.

             The legislature, not the DPS, has clearly declared that it is an
        offense against the laws of this state to operate a motor vehicle on
        the highways of the state without a valid inspection certificate
        issued pursuant to a required inspection. Article 6701(d) provides in
        sections 140(e) and (g) and 141(d) as follows:

                     (e) . . . no person shall operate on the
                  highways of the state any motor vehicle registered
                  in this state unless a valid certificate of
                  inspection is displayed thereon as required by
                  this section. (Emphasis added).

    -                (g) Any person operating a vehicle on the
                  highways of this state . . . in violation of the




                                              p. 589
Colonel James B. Adams - Page 4    (JM-138)




         provisions of this Act, or without displaying the
         valid inspection certificate . . . is guilty of a
         misdemeanor . . . .

              (d) . . . No person shall display or cause or
          permit to be displayed any inspection certificate
          knowing the same to be . . . issued . . . without
          the    required  inspection having   been   made.
          (Emphasis added).

     The legislature specifically identified the equipment on a motor
vehicle which must be inspected.       See 8140(a).   That equipment
includes the exhaust emission system.Furthermore,     the legislature
has specifically provided that only those items of equipment
identified in section 140 can be inspected as a prerequisite for the
issuance of an inspection certificate. -Id.

      Prior to the adoption of Senate Bill No. 1205, section 142
required the DPS to establish uniform standards with respect to the
motor   vehicle equipment, including an exhaust emission system,
required to be inspected by section 140. Section 142(c) gave the DPS
authority to adopt rules necessary for administration and enforcement
of the vehicle inspection program. Senate Bill No. 1205, amending
section 142, was an expansion of the DPS's responsibility and
authority. Senate Bill No. 1205 requires the DPS to establish a
"parameter" motor vehicle inspection and maintenance program for
vehicles registered in certain counties which had particularly
grievous air quality problems.

     We find that the legislature has sufficiently defined the conduct
which is subject to the misdemeanor provisions of section 143, and
that the powers given to the DPS to adopt uniform standards for
vehicle equipment pursuant to section 142(a) and unique standards for
particular areas under 142(d) are not an impermissible delegation of
legislative function.

     Your second question asks whether DPS rules defining the standard
to be applied in vehicle inspections may be limited to vehicles
operated in a designated county. Prior to amendment by Senate Bill
No. 1205, section 142 required that inspection standards be uniform.
Senate Bill No. 1205 authorized the DPS to establish unique standards
concerning vehicle emissions and issue s unique inspection certificate
for vehicles registered in a particular county with severe air
pollution problems. We find that rules which apply to vehicles
operated in such counties, but not registered therein, would exceed
the authority granted by Senate Bill No. 1205.

     However, rules which apply solely to vehicles whj~ch are both
registered in and operated in such county may be permissible. In




                                  p. 590
Colonel James B. Adams - Page 5    (JM-138)




construing statutes, courts look diligently for the intent of the
legislature, keeping in view at all times the old law, the evil, and
the remedy. If the department finds that vehicles registered in a
county with air pollution problems but not operated in that county
would not contribute to the evil to be remedied, it may exclude such
vehicles from the uniaue testing program required by Senate Bill No.
1205.

                             SUMMARY

             The Department of Public Safety may enforce
          criminal penalties against a person who operates a
                   ..-     .
          motor  vehicle which has not been inspected
          according to rules adopted pursuant to Senate Bill
          NO. 1205 of the Sixty-eighth Legislature. The
          rules may be limited to apply only to vehicles
          registered and operated in designated counties.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jim Mathews
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Mathews
Jim Moellinger
Nancy Sutton




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