                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                               January 22, 2008



Mr. Thomas A. Davis, Jr., Director                   Opinion No. GA-0598
Texas Department of Public Safety
Post Office Box 4087                                 Re: Whether section 521.032, Transportation Code,
Austin, Texas 78773-0001                             which permits the Department of Public Safety
                                                     to issue an enhanced driver's license or personal
                                                     identification certificate for the purpose of crossing
                                                     the border between Texas and Mexico conflicts with
                                                     federal law (RQ-0610-GA)

Dear Mr. Davis:

        Enacted by the Eightieth Legislature as part ofa homeland security measure, section 521.032
of the Transportation Code authorizes the Texas Department of Public Safety (the "Department")
to "issue an enhanced driver's license or personal identification certificate for the purposes of
crossing the border between [Texas] and Mexico." TEX. TRANSP. CODE ANN. § 521.032 (Vernon
Supp.2007). You ask whether section 521.032 conflicts with current federal law. 1

I.      Section 521.032, Texas Transportation Code

        Section 521.032 authorizes the Department to issue an enhanced driver's license that can be
used to cross the border between Texas and Mexico. See ide Section 521.032 provides that an
enhanced driver's license or personal identification certificate may be issued to "an applicant who
provides ... proof of United States citizenship, identity, and state residency." Id. The section also
requires biometric identifiers of applicants as well as security measures to protect information
included in the enhanced driver's license or personal identification certificate. See ide § 521.032(b)
(requiring one-to-many biometric matching system2 and limiting use of same), (c) (requiring
reasonable security measures for privacy and protection against unauthorized disclosure and




         lSee Letter from Mr. Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable Greg
Abbott, Attorney General of Texas, at 1-3 (July 26, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].

          2See TEX. GOV'T CODE ANN. § 560.001(1) (Vernon 2004) (defining "biometric identifier" as a "retina or iris
scan, fingerprint, voiceprint, or record of hand or face geometry").
 Mr. Thomas A. Davis, Jr. - Page 2                       (GA-0598)



 requiring encryption of any included radio frequency identification chips3). Section 521.032
 authorizes the Department to adopt rules necessary to implement the section. See ide § 521.032(d).
 And it requires the Department to monitor technological innovations related to security and to amend
 its rules as appropriate to protect the privacy of individuals holding an enhanced driver's license or
 personal identification certificate. See ide

          Section 521.032 authorizes the Department to "enter into a memorandum of understanding
 with any federal agency for the purposes of facilitating the crossing ofthe border between this state
 and Mexico." Id § 521.032(f). Section 521.032 further authorizes the Department to "enter into
 an agreement with Mexico, to the extent permitted by federal law, to implement a border crossing
 initiative authorized by this section." Id.

 II.      Federal Preemption

          You ask whether section 521.032 conflicts with current federallaw. 4 See Request Letter,
- supra note 1, at 3. The issuance of driver's licenses has typically been a function of the individual
  states. See State v. Wilder, 67 P.3d 839, 841 (Idaho Ct. App. 2003) (stating that driver's license
  requirement is legitimate exercise ofstate's police power); see also, e.g., TEX. TRANSP. CODE ANN.
  § 521.021 (Vernon 2007) (requiring state-issued driver's license to operate motor vehicle on
  highway in state); ALA. CODE § 32-6-1 (a) (2007) (same); CAL. VEH. CODE § 125 OO(a) (2007) (same);
  DEL. CODE ANN. tit. 21, § 2701(a) (2007) (same); IDAHO CODE ANN. § 49.301 (2007) (same). But
  to the extent an enhanced driver's license issued under section 521.032 would permit a United States
  citizen to cross the border between Texas and Mexico, the section intersects with federal authority
  over the nation's borders. See United States v. Glasser, 750 F.2d 1197, 1201 (3rd Cir. 1984) ("It
  cannot be questioned that Congress has plenary power to police the borders of the United States.")
  (citing United States v. 12200-Ft. Reels ofFilm, 413 U.S. 123 (1973)). And under the Supremacy
  Clause of the United States Constitution, state law that conflicts with federal law is preempted and
  without effect. U.S. CONST. art. VI, cl. 2; Marylandv. Louisiana, 451 U.S. 725, 745-46 (1981); see
  La. Pub. Servo Comm 'n v. Fed. Commc 'ns Comm 'n, 476 U.S. 355,369 (1986) (stating that "a federal
  agency acting within the scope of its congressionally delegated authority may pre-empt state
  regulation").

         There are three ways in which a state law may be preempted. Cipollone v. Liggett Group,
 Inc., 505 U.S. 504, 516 (1992); Delta Air Lines v. Black, 116 S.W.3d 745, 748 (Tex. 2003). Federal
 law may expressly preempt state law. Cipollone, 505 U.S. at 516. Federal law may impliedly


           3See Leighton Tech. LLC v. Oberthur Card Sys., S.A., 358 F. Supp. 2d 361,364 (S.D.N.Y. 2005) (describing
 radio frequency identification (RFID) technology as the "basis for the so'-called 'smart card,' a plastic card that includes
 an electronic element (such as a computer chip) and a reader, and that is used in numerous common applications
 including security swipe cards, credit/debit cards, mass transit access, toll collection (EZ-Pass), and government
 identification").

          4In presenting your question, you provide information and argument with respect to only federal passport
 requirements, and thus, we limit our analysis to such requirements. See Request Letter, supra note 1, at 1-3 (discussing
 provisions of federal passport law and the Western Hemisphere Travel Initiative).
Mr. Thomas A. Davis, Jr. - Page 3                    (GA-0598)



preempt state law if the scope of the federal statute or regulations indicates that Congress intended
to occupy the field exclusively. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). Federal
law may also impliedly preempt state law when there is an actual conflict between the federal and
state law such that "it is 'impossible for a private party to comply with both federal and state
requirements,' or where state law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress." Id. (quoting English v. Gen. Elec. Co., 496 U.S. 72,
78-79 (1990)).

III.     Federal Passport Requirements

        Current federal law requires that a United States citizen have a valid United States passport
to "depart from or enter, or attempt to depart from or enter, the United States." Immigration and
Nationality Act § 215, 8 U.S.C.A. § 1185(b) (West 2005 & Supp. 2007); Passport Requirement and
Exceptions, 22 C.F.R. § 53.1(a) (2007). Exceptions to the passport requirement for United States
citizens, contained in the Department of State regulations, currently provide that a United States
citizen may enter and depart the United States without a passport:

                 (b) When entering from or departing to a foreign port or place
                 within the Western Hemisphere, excluding Cuba, by land or sea; or




                 (f) When the u.S. citizen bears another document, or combination
                 of documents, that the Secretary of Homeland Security has
                 determined under Section 7209(b) ofPub. L. 108-458 (8 U.S.C. 1185
                 note) to be sufficient to denote identity and citizenship; ....

Passport Requirement and Exceptions, 22 C.F.R. § 53.2(b), (f) (2007).

       The passport requirement exceptions are being revised in a joint Department of Homeland
Security (the "DHS") and Department of State (the "DOS") two-stage rulemaking. 5 This two-stage
joint DHS and DOS plan is described as the Western Hemisphere Travel Initiative, or WHTI. 6
Under the first stage, effective January 23, 2007, United States citizens arriving into or departing
from the United States at an air port-of-entry must have a valid United States passport. See Passport



          SSee generally Documents Required for Travelers Arriving in the United States at Air and Sea Ports-of Entry
From Within the Western Hemisphere, 71 Fed. Reg. 46,155 (proposed Aug. 11, 2006); Documents Required for
Travelers Departing From or Arriving in the United States at Air Ports-of-Entry From Within the Western Hemisphere,
71 Fed. Reg. 68,412·(Nov. 24,2006); Documents Required for Travelers Departing From or Arriving in the United
States at Sea and Land Ports-of-Entry From Within the Western Hemisphere, 72 Fed. Reg. 35,088 (proposed June 26,
2007).

         6See 71 Fed. Reg. 46,155, 46,157 (proposed Aug. 11, 2006); 72 Fed. Reg. 35,088, 35,090 (proposed June 26,
2007).
Mr. Thomas A. Davis, Jr. - Page 4                     (GA-0598)




Requirement and Exceptions, 22 C.F.R. § 53.2(b) (exception for only land and sea).7 And under the
second stage expected to be final in the summer of2008, United States citizens traveling to or from
the United States by land or sea ports-of-entry from countries within the Western Hemisphere will
also be required to possess a valid United States passport. 8

        The two-stage joint DHS and DOS rulemaking under WHTI, however, is anticipated to leave
in place the current passport requirement exception that permits entry into and departure from the
United States

                 [w]hen the U.S. citizen bears another document, or combination of
                 documents, that the Secretary of Homeland Security has determined
                 under Section 7209(b) of Pub. L. 108-458 (8 U.S.C. 1185 note) to be
                 sufficient to denote identity and citizenship[.]

Id. § 53.2(f).9 The referenced section 7209(b) of Public Law 108-458 (hereinafter ,,'section
7209(b)"), codified as a note accompanying section 8 U.S.C. § 1185, requires the Secretary of
Homeland Security and the Secretary of State to

                 develop and implement a plan as expeditiously as possible to require
                 a passport or other document, or combination of documents, deemed
                 by the Secretary of Homeland Security to be sufficient to denote
                 identity and citizenship, for all travel into the United States by United
                 States citizens; ....

8 U.S.C.A. § 1185 note (West Supp. 2007) (Intelligence Reform and Terrorism Prevention Act of
2004) (emphasis added).lO Section 7209(b) further requires, among other things, certification from
the Secretary of Homeland Security and the Secretary of State regarding

                  the signing ofa memorandum ofagreement to initiate a pilot program
                  with not less than one State to determine if an enhanced driver's
                  license, which is machine-readable and tamper proof, not valid for
                  certification of citizenship for any purpose other than admission into
                  the United States from Canada or Mexico, and issued by such State
                  to an individual, may permit the individual to use the driver's license


         7See also 71 Fed. Reg. 68,412, 68,414 (Nov. 24,2006).

         8See 72 Fed. Reg. 35,088, 35,096 (proposed June 26, 2007) (to be codified at 53.2(b)(2)) (providing limited
exception for passport requirement for United States citizens departing and entering the United States aboard pleasure
cruise ship).

         9See also 72 Fed. Reg. 35,088,35,116 (proposed June 26, 2007) (to be codified at 22 C.F.R. § 53.2(f)).

         lOpub. L. No. 108-458, Title VII, § 7209, Dec. 17,2004,118 Stat. 3823, as amended by Pub. L. 109-295, Title
V, § 546, Oct. 4, 2006, 120 Stat. 1383; and Pub. L. 110-53, Title VII, § 723, Aug. 3,2007, 121 Stat. 349.
Mr. Thomas A. Davis, Jr. - Page 5                   (GA-0598)




                to meet the documentation requirements under subparagraph (A) for
                entry into the United States from Canada or Mexico at land and sea
                ports of entry.

See Intelligence Reform and Terrorism Prevention Act of2004, supra note 10 (to be codified at 8
U.S.C. § 1185 note § 7209(b)(1)(B)(viii)).11

IV.    Analysis

        With this background regarding the evolving federal passport requirement framework, we
address your question regarding whether section 521.032 ofthe Texas Transportation Code conflicts
with federal law regarding passports and is thus preempted. A critical question in any preemption
analysis is whether Congress intended the federal regulation to supersede state law. La. Pub. Servo
Comm 'n, 476 U.S. at 369. Under express preemption, the federal statute or regulation must clearly
state that its provision preempts state law. Cipollone, 505 U.S. at 516. Neither the federal statute,
8 U. S.C. § 1185 contained in the Immigration and Nationality Act, nor the regulations adopted under
the statute contain any language expressly preempting state law. See 8 U.S.C.A. § 1185 (West 2005
& Supp. 2007); see also ide §§ 1101-1537 (Immigration and Nationality Act); Passport Requirement
and Exceptions, 22 C.F.R. pt. 53 (2007). Absent such language, express preemption is not an issue
here.

        Federallaw may also impliedly preempt state law if Congress intended to occupy the field,
if there is an actual conflict between the federal law and the state law, or if state law stands as an
obstacle to the federal purpose. Freightliner Corp., 514 U.S. at 287. In the analysis involving
implied preemption we again look to Congress's intent. La. Pub. Servo Comm 'n, 476 U.S. at 369.
Entry into or departure from the United States involves the nation's borders. And authority to
regulate the nation's borders is exclusive to Congress. United States v. Montoya de Hernandez, 473
U.S. 531, 537 (1985) (citing Boyd V. United States, 116 U.S. 616, 623 (1886)); Glasser, 750 F.2d
at 1201 (citing 12 200-Ft. Reels ofFilm, 413 U.S. at 126). In the Immigration and Nationality Act,
of which the passport requirement in 8 U.S.C. § 1185(b) is a part, Congress has enacted a
comprehensive scheme regulating the nation's borders. See 8 U.S.C.A. §§ 1101-1537 (West 2005
& Supp. 2007). Congress has established limitations on immigration levels. See ide §§ 1151-1152.
It has provided for immigrant visas and immigrant asylum. See ide §§ 1153,1156,1158,1201.
Congress has also set forth admission qualifications and travel requirements. See ide §§ 1181-1189.
And, it has enacted provisions regarding removal ofpersons illegally in the United States as well 'as
penalty provisions. See ide §§ 1221-1231, 1401-1489. Governing all aspects of border control,
including the ability ofcitizens to lawfully travel to and from the United States, the Immigration and
Nationality Act is clearly a pervasive and comprehensive enactment that reveals a Congressional
intent to exercise extensive control over the nation's borders.

       In that comprehensive scheme, however, Congress affirmatively calls for state regulatory
involvement. See Intelligence Reform and Terrorism Prevention Act of 2004, supra note 10 (to be


        llSee also 72 Fed. Reg. 35,088, 35,095-096 (proposed June 26, 2007) (to be codified at 53.2(b)(2)).
Mr. Thomas A. Davis, Jr. - Page 6                       (GA-0598)




codified at 8 U.S.C. § 1185 note) (section 7209(b)(1)(B)(viii) requIrIng "the signing of a
memorandum of agreement to initiate a pilot program with not less than one State to determine if
an enhanced driver's license      may permit the individual to use the driver's license to meet the
documentation requirements        for entry into the United States"). Pursuant to its directive to the
DHS and the DOS in section 7209(b), Congress envisioned the development of a plan wherein
documents, other than passports, denoting citizenship and identity could serve as documents
authorizing United States citizens to travel across the border. See 8 U.S.C.A. § 1185 note
§ 7209(b)(1 )(A) (West Supp. 2007). And, Congress provided that a state-issued enhanced driver's
license could serve as a possible alternative document. See Intelligence Reform and Terrorism
Prevention Act of2004, supra note 10 (to be codified at 8 U.S.C. § 1185 note § 7209(b)(1 )(B)(viii)).
This express language indicates a Congressional intent that state-issued driver's licenses issued in
compliance with section 7209(b) could be a component ofthe WHTI plan implemented by the DHS
and the DOS. And an enhanced driver's license issued under a state law enacted in conformance
with section 7209(b) would not only further federal objectives, it would permit a private party to
comply with both federal and state requirements. We find no indication that Congress intended to
impliedly preempt a state law authorizing a state-issued enhanced driver's license that conformed
to section 7209(b). Accordingly, a state law that provides for such driver's licenses would not on
its face conflict with, and would not be preempted by, federal law regarding passports.

         Section 521.032 would conflict with federal law regarding passports only if it authorizes an
enhanced driver's license that does not conform to section 7209(b). Section 7209(b) requires the
alternative document or combination of documents to be machine-readable and tamper proof. Id.
It further requires the document or combination of documents to be sufficient to denote citizenship
and identity as determined by the Secretary of Homeland Security. 8 U.S.C.A. § 1185 note
§ 7209(b)(1 )(A) (West Supp. 2007). Section 521.032 requires an applicant for an enhanced driver's
license to provide proofofcitizenship and identity. TEX. TRANSP. CODE ANN. § 521.032(a) (Vernon
Supp.2007). It also requires a one-to-many biometric matching system 12 to verify the identity ofthe
applicant. Id. § 521.032(b). Section 521.032 requires reasonable security measures designed
to protect against unauthorized disclosures about the holder of the enhanced driver's license. Id
§ 521.032(c). And it requires encryption of any included radio frequency identification chips. Id.
These provisions appear to conform to the tamper proof and machine-readable requirements of
section 7209(b).

        An enhanced driver's license issued under section 521.032 must also be determined by the
Secretary of Homeland Security to sufficiently denote citizenship and identity. 8 U.S.C.A. § 1185
note § 7209(b)(1 )(A) (West Supp. 2007). And while we are unaware that the Secretary ofHomeland



          120ne-to-many biometric matching "compares a presented biometric sample against a set ofenrolled biometric
templates. This process seeks to determine if a person is present or not present in the database." Randy Vanderhoof,
The Top 10 Hot Identity Topics, Electronic Banking Law and Commerce Report, pte 2 (May 2006), available on
Westlaw, 11 No.4 GLEBLCR 1. See also HOUSE BILL REpORT, Wash. S.B. 5412, 58th Leg., R.S. (2004) (describing
one-to-many biometric technology that allows "the Department ofLicensing to check a new driver's license ... applicant
against a database ofother drivers to ensure that the individual is not already licensed elsewhere or under another name"),
available at http://www.leg.wa.govlbillinfo/ (last visited Jan. 16, 2008).
Mr. Thomas A. Davis, Jr. - Page 7                       (GA-0598)



Security has as yet made such a determination regarding an enhanced driver's license·under section
521.032,13 section 521.032 does authorize the Department to enter into "a memorandum of
understanding with any federal agency for the purposes of facilitating the crossing of the border."
TEX. TRANSP. CODE ANN. § 521.032(f) (Vernon Supp. 2007). In so providing, section 521.032
appears to actually contemplate an agreement and coordination between the Department and the
DHS whereby the Department would seek the necessary determination from the Secretary of
Homeland Security. Should the Secretary of Homeland Security determine an enhanced driver's
license issued under section 521.032 to be sufficient to denote citizenship and identity, the section
521.032 enhanced driver's license would be consistent, and not conflict, with federal law regarding
passports.




          13The DHS has entered into a formal Memorandum of Agreement with the State of Washington. See Press
Release, U.S. Department of Homeland Security and Christine O. Gregoire, Governor, State of Washington, DHS and
the State of Washington Team Up to Advance Western Hemisphere Travel Initiative (Mar. 23, 2007), available at
http://www.dhs.gov/xnews/releases/pr_1174904636223.shtm(lastvisitedJan. 16,2008). And it is anticipated under the
agreement that the enhanced driver's license issued hy the State of Washington will be determined to be sufficient by
the Secretary of Homeland Security. See Memorandum of Agreement Between The State ofWashington, Office ofthe
Governor and Department of Homeland Security at 2, sec. IV (Mar. 23, 2007) (on file with the Opinion Committee).
The statute under which the State ofWashington is authorized to provide enhanced driver's license is practically identical
to section 521.032. Compare WASH. REv. CODE ANN. §§ 46.20.202,46.20.2021 (West 2007), with TEX. TRANSP. CODE
ANN. § 521.032 (Vernon Supp. 2007).
Mr. Thomas A. Davis, Jr. - Page 8             (GA-0598)



                                      SUMMARY

                      Section 521.032 of the Texas Transportation Code requires
              an enhanced driver's license to be supported by an applicant's proof
              of citizenship, identity, and state residency, and to include a one-to-
              many biometric matching system as well as reasonable security and
              encryption measures. A section 521.032 enhanced driver's license is
              consistent with current federal law regarding passports if: (1) the
              license is "determined ... by the Secretary of Homeland Security to
              be sufficient to denote identity and citizenship"; and (2) the license
              conforms to the technology, security, and operational requirements of
              the Western Hemisphere Travel Initiative implemented under section
              7209(b) of Public Law 108-458, such as being machine readable and
              tamper proof.

                                             Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
