                           Q3fficeof the Bttornep Qheral
                                   &ate of lltexae
DAN MORALES                              October 22,1992
 .ATTORSEY
       CESER.AL




      Honorable Parker McCullough                      Opinion No. DM-176
      chairman
      Committee on Criminal Jurisprudence              Re: Whether a question on a
      Texas House of Representatives                   driver’s license renewal form inquir-
      P. 0. Box 2910                                   ing as to whether the applicant has
      Austin, Texas 78768-2910                         had problems with alcohol or drug
                                                       abuse is valid (RQ-90)

      Dear Representative McCullough:

              Your predecessor requested an opinion regarding a question on a new Texas
      Department of Public Safety (the “department”) form for the renewal of a driver’s
      license which he stated provides as follows:

                     Have you ever had a problem, been arrested or hospitalized
                as a direct result of alcohol or drug abuse within the past: [ ] one
                year if applying for Class C License? [ ] two years if applying for
                Class A or Class B License?

      He asked whether the renewal form question violates the fifth or fourteenth
      amendment of the United States Constitution. We do not think it necessary here to
      fully reach the constitutional issues raised because we conclude that the question on
      the renewal form is an unreasonable exercise of the department’s powers under the
      applicable state statutes. In our opinion, the renewal form question thus exceeds
      the department’s statutory authority and is consequently invalid. See, eg., G&f LMd
      Co. v. Arlantic R& Co., 131 S.W.2d 73 (Tex. 1939) (agency actions must be
      reasonable and within statutory authority).

              In a brief submitted to this office, the department asserts that it is required to
      ask renewal applicants about possible alcohol or drug abuse by the provisions of
      article 6687b, V.T.C.S. Section 4 of that article provides that the department shag




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Honorable Parker McCullough - Page 2         t-176)




not issue any license to “any person who is shown to be addicted to the use of
alcohol or a controlled substance or other drugs that render a person incapable of
driving.” V.T.C.S. art. 6687b. 84(4). Other provisions of section 4 direct the
department not to issue a license to a person when the department believes that the
person -lot     safely operate a motor vehicle. See id. 94(7), (8). Section 6, in
setting forth the information which the department is authorized to obtain on
applications for an original or renewal driver’s license, includes therein “other
information as tbe Department may require to determine the applicant’s identity,
competency and eligibility.” Id. 9 6(b).

        The department is assisted in determiniug whether an applicant is capable of
safely operating a motor vehicle by a Medical Advisory Board established pursuant
to article 6687b, section 21A, V.T.C.S. The department contends that the question
at issue conforms with the Medical Advisory Board’s guidelines for determining
driver limitations. We note, too. that section 6 of the article provides that
“[i]nformation about the medical history of an applicant supplied to the Department
or a Medical Advisory Board is for the confidential use of the Department or the
Board and may not be divulged to any person or used as evidence in a legal
proceeding except a proceeding [to cancel, suspend or revoke a license.]” Id.; see
c&o id. 0 21A(c)(l), (2).

        The renewal form question, as written, does not, in our opinion, reasonably
serve the’ purposes of the statutory provisions the department invokes as
authorization for such a question. For instance, even an attempted truthful
response to the question whether the applicant has “had a problem” with alcohol or
drug abuse would, we believe, be so subjective as to be virtuahy useless in the
department’s evaluation of whether the applicant is in fact “addicted” to alcohol or
drugs under section 4(4) supm, or whether the person can safely operate a motor
vehicle under section 4(7) or (8). Moreover, the unreliability of such responses
would, we think, be grossly compounded by the obvious disincentive for respondents
who have in fact had something that could be characterized as a “problem” with
drugs or alcohol even to attempt to respond to the question truthfully. Those
applicants would certainly be aware that such a response would threaten their
retaining of their driving privileges.

        While, again, we do not think it necessary here to fully reach the
constftutional issues raised with respect to the renewal form question, in considering
whether the question is a reasonable exercise of the department’s authority under



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Honorable Parker McCullough - Page 3               W-176)




the applicable statutes we bear in mind the sensitiveness and intrusiveness of such
question vis u vir constitutional privacy concerns. One’s health and medical history
generally falls within the scope of federal constitutional privacy protections. Whalen
v. Roe, 429 U.S. 589,6OO-Ol(l977). Constitutional privacy concerns are implicated
even where, as here, the government has provided for maintaining the
confidentiality of the private matters of which it seeks disclosure, Id. The United
States Court of Appeals for the Fifth Circuit has utilized a balancing test of the
respective interests of the individual and the state in order to assess the state’s right
to thus encroach in such areas. Under such a test, “‘more than mere rationality must
be demonstrated’ to justify a state intrusion.” FaQo v. Coon, 633 F.2d 1172, 1176
(5th Cir. 1981) (citing Plrmre v. Conruler. 575 F.2d 1119, 1134 (5th Cir. 1978)). cerf.
denied, 439 U.S. 1129 (1979). Presumably, whether the challenged state intrusion
was narrowly tailored to serve the state’s interest, would be given weight in a court’s
arriving at a determinationr

        Because of the vagueness of the renewal form question and its highly
questionable efficacy in furthering the authorized purposes of the department, and
particularly in view of the constitutionally protected interests which that question
implicates, we conclude that the department’s utilization-of the question as written
is unreasonable and hence invalid.


                                      SUMMARY

               A question used by the Department of Public Safety on the
           driver’s licence renewal form, which asks, inter ah, whether the


         lWe note that the federal appellatecourtsappear to be dividedover the proper standardto be
applied wiaerethe right to privacyis inwkcd to protca confidcntia&ty.See Shiel& Y. Burgc, 874 F2d
l2tl1,1210-11(7tb Cii. 1989) (tit+ cotdlidiag carts); Em&i v. J&an,627 F.2.df!36,84548 (lst Cii.
1987) (same). We note in addition, bower, that Texas courts may cxmcludeia sotnc instamm that
privacyrights guaranteed under the Texs Constitutionarc broader than analogous rights pamteed
under the federal constitution. See, e.g.,Taos State EmproVccs Union v. Tans Dcp% qf Mewal Ii&h
& Mental Retordotion, 746 S.WZd X0 (Tu 1987) (implying that the right to privacyunder the Texas
Gmstitution may be broader than the right to privacy under the United States Constitution and
exptidy adopting as an element of the state.test whether less intrusive mcars were availableto swve
the state’s interest in encroaching on pivatc matters);see also Term Y. Momles, (Te%App-Austin
t992, writ granted) (holding bat the rightto privacyunder the Texas Constitution extends to private,
wosensual, adult homosexual conduct).




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Honorable Parker McCullough - Page 4 (m-176)




         applicant had had a “problem” with alcohol or drug abuse, is
         unreasonable and therefore invalid.




                                              DAN      MORALES
                                              Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEAHlcKs
Special Assistant Attorney General

MAD-           B. JOHNSON
chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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