                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS




                                                April 25, 2016



The Honorable Jerry D. Rochelle                           Opinion No. KP-0076
Bowie County Criminal District Attorney
601 Main Street                                           Re: Whether Texas law allows photographic
Texarkana, Texas 75504                                    insurance enforcement systems (RQ-0062-KP)

Dear Mr. Rochelle:

         You ask whether Texas law allows a "photographic insurance enforcement system." 1 You
state that Bowie County has been approached by a company marketing "law enforcement
Controlled Automated License Plate Recognition" systems "to identify, evaluate, and cite vehicle
owners ... who are determined to be in a violation of' the Motor Vehicle Safety Responsibility
Act (the "Act"), located in chapter 601 of the Transportation Code. Request Letter at 1. You
indicate that the company has proposed an agreement whereby the company would provide and
install equipment such as cameras and computers to capture images of vehicle license plates. Id.
You state that under the agreement, the company would evaluate data gathered by the system for
indications of "an insurance violation," and a letter would be generated "under the District
Attorney's Office to the registered owner of the vehicle advising [of] the fine amount and
requesting payment." Id. You further state that under the agreement, "the company would receive
50% of the amount collected on a monthly basis." Id. You ask if Texas law allows counties to
install and utilize such photographic enforcement systems and, if so, whether the district attorney
is permitted to send the violation notice and whether "the fee split arrangement [is] permissible."
Id. at 1-2.

        The Act prohibits a person from operating a motor vehicle in this state without establishing
financial responsibility for the vehicle. ~ee TEX. TRANSP. CODE § 601.051. Maintaining motor
vehicle liability insurance for the vehicle is but one of five methods to establish financial
responsibility. Id. (also authorizing surety bonds, deposits with the state comptroller or a county
judge, and self-insurance in certain circumstances); see also Sanchez v. State, 137 S.W.3d 860,
862-63 (Tex. App.-.Houston [1st Dist.] 2004, pet. dism'd) (observing that proof of insurance is
only one of numerous ways to establish financial responsibility). Operating a vehicle without
establishing financial responsibility is a criminal offense. TEX. TRANSP. CODE§ 601. l 91(a). An
operator who fails to provide proof of financial responsibility when requested by a peace officer
or by a person involved in an accident with the operator is presumed to have violated section


          'Letter from Honorable Jerry D. Rochelle, Bowie Cty. Crim. Dist. Att'y, to Op. Comm., Office of the Tex.
Att'y Gen. at I (Oct. 20, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Jerry D. Rochelle - Page 2           (KP-0076)



601.051. Id. § 601.053(b). The duty to administer and enforce chapter 601 is vested in the
Department of Public Safety. Id.§§ 601.002, .021.

         A county has only those powers expressly granted by the Texas Constitution or Legislature
or necessarily implied from the county's express powers. City of San Antonio v. City of Boerne,
111 S.W.3d 22, 29 (Tex. 2003). The Legislature has granted counties general authority with
respect to county roads. See TEX. TRAN SP. CODE § 251.016. Chapter 251, subchapter E of the
Transportation Code authorizes a county to install equipment such as traffic control devices and
signage in conjunction with a county's authority to regulate traffic. See id.§§ 251.154(d), .155,
.156(a), .161. But neither chapter 251 nor any other statute of which we are aware addresses a
county's use of automated photographic or similar technology to enforce the state's vehicle
financial responsibility laws. In other provisions of the Transportation Code, the Legislature has
addressed the use of similar automated technology for other enforcement purposes. For example,
chapter 707 of the Transportation Code authorizes local authorities, including counties, to
implement a photographic system for red-light enforcement pursuant to specific standards set forth
in the chapter. See id. §§ 707.001-.019. The chapter allows a local authority to use a photographic
traffic signal enforcement system to establish a civil penalty but not a criminal conviction. Id.
§§ 707.002, .010, .018. The system may be used "only for the purpose of detecting a violation or
suspected violation of a traffic-control signal," and it is an offense to use the system to create an
image in any other manner or for any other purpose. Id. § 707.006(a)-(b) (titled "General
Surveillance Prohibited"). In another statute, the Legislature authorizes the use of photographic
or automated enforcement technology for the offense of using a toll road without paying the toll.
Id. §§ 228.054-.059. And section 542.2035 of the Transportation Code prohibits municipalities
from using an "automated traffic control system ... for the purpose of enforcing compliance with
posted speed limits." Id. § 542.2035(a). The statute defines "automated traffic control system"
as:

               a photographic device, radar device, laser device, or other electrical
               or mechanical device designed to:

               (1) record the speed of a motor vehicle; and

               (2) obtain one or more photographs or other recorded images of:

                   (A) the vehicle;

                   (B) the license plate attached to the vehicle; or

                   (C) the operator of the vehicle.

Id. § 542.2035(b); see also Tex. Att'y Gen. Op. No. GA-0846 (2011) at 2 n.3 (discussing the
common meaning of "automated" and similar terms).

        These provisions illustrate that when the Legislature has authorized automated
photographic or similar technology for the enforcement of traffic or vehicular laws, it has been
specific about the circumstances and permissible uses of the technology. It has enacted no law
granting counties authority to utilize an automated photographic insurance enforcement system.
The Honorable Jerry D. Rochelle - Page 3         (KP-0076)



Accordingly, a court is likely to conclude that counties are not authorized to utilize an automated
photographic or similar system to enforce the financial responsibility laws in chapter 601 of the
Transportation Code. Because we conclude that counties lack the authority to utilize such systems
to enforce chapter 601, we do not address your remaining questions.
The Honorable Jerry D. Rochelle - Page 4         (KP-0076)



                                      SUMMARY

                       A court is likely to conclude that counties are not authorized
              to utilize an automated photographic or similar system to enforce
              the financial responsibility laws in chapter 601 of the Transportation
              Code.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
