             THE     ATTORNEY          GENERAL
                        OF TEXAS


                       December 28, 1989



Honorable Mike Driscoll      Opinion     NO.     JM-1126
Harris County Attorney
1001 Preston, Suite 634      Re:   Duty of a county clerk to
Houston, Texas 77002         notify the Department of Public
                             Safety about the mental   compe-
                             tence of a person holding      a
                             driver's license   (RQ-1842)

Dear Mr. Driscoll:

     You ask four questions concerning the duty of a county
clerk to notify the Department of Public Safety when a
person holding a driver's license is found to be mentally
incompetent.  They are:

           1. Is the County Clerk required to notify
        the Department  of Public Safety of court
        findings that a person holding   a driver's
        license is mentally incompetent?

           2. Is the County Clerk required to notify
        the Department  of Public Safety of court
        findings that a person holding    a driver's
        license is mentally incompetent regardless of
        the nature of the proceeding?

           3. Is the County Clerk required to notify
        the Department  of Public Safety of court
        findings that a person is mentally   incompe-
        tent, but are silent as to whether the person
        holds a driver's license?

           4. Is it the duty of the County Clerk to
        determine whether a person found to be men-
        tally incompetent holds a driver's   license
        when the court findings are silent on this
        issue?

     Article 6687b, section 4, V.T.C.S.,    specifies  that
drivers' licenses are not to be issued to certain persons.
Among them are persons "shown to be addicted to the use of




                             P. 5926
Honorable Mike Driscoll : Page 2     (JM-1126)




alcohol or a controlled substance," or persons who have been
"adjudged mentally  incompetentl' by a court of competent
jurisdiction and not restored to competency.   Id. subsets.
(4), (5). Section 30 of article 668733 provides:
            It
       9s   a driver of    a motor vehicle who is
        addicted to the use of alcohol or a control-



       released from a hospital for the mentally
       incompetent upon       a certificate    of    the
       superintendent that such person is competent.
       A finding that a person is addicted to the
       use of alcohol or a controlled substance must
       be based on a determination by the court that
       the person is psychologically or physiologi-
       cally dependent     on alcohol or a controlled
       substance.      Anv findinu bv anv court of
       comnetent    iurisdiction    that   anv    person
       > oldin                                 mental1
       JJ corn etent 0
       or a controlled substance shall carrv with it
       a revocation     of the driver's   license.    It
       d
       shall be the ut o
       in which such findinas are made. to certifv
       e                         within ten (10) days.
        (Emphasis added.)

     In our opinion, the driver's     license of a person
adjudged   (found) mentally  incompetent  is   automatically
revoked by operation   of section 30, whether or not the
adjudicating court makes a specific finding that the person
holds a driver's license.

     The initial sentence of section 30 declares that it is
unlawful for any person who has been adjudged mentally
incompetent to act as the driver of a motor vehicle in this
state.   Clearly, the criminality    of that act is      not
dependent upon an additional   prior adjudication  that the
actor held a revoked driver's license, and it is incongruous
to suppose that the legislature intended automatic   revoca-
tion for only licenses of adjudicated incompetents who are
also shown by evidence produced in court (found) to possess
licenses. The object of section 30 is to protect the public
from mentally incompetent drivers.




                           p. 5927
Honorable Mike Driscoll - Page 3   (JM-1126)




     We think that the only "finding" section 30 of article
668733 contemplates as a prerequisite to automatic revocation
of any driver‘s license held by the subject of the proceed-
ings is a finding of mental         incompetence.    From that
finding, ins0 facto, other consequences flow by operation of
law, just as they do, pursuant      to section   24 of article
6687b, when a person is finally convicted of driving while
intoxicated in violation of article 67011-1, V.T.C.S.       cf.
Davison v. State, 313 S.W.2d 883 (Tex. Crim. App.        1958);
Gaddv v. Texas Den/t of Pub. Safety, 380 S.W.2d 783       (Tex.
Civ. App. - Eastland 1964, no writ) (automatic suspension
operative upon conviction without regard to whether specific
provision therefor is in judgment).

     Unless some other law intervenes , ,inasmuch as section
30 of article 6687b expressly  requires the clerks of court
to certify to the Department  of Public Safety any findings
of any court of competent jurisdiction that persons  holding
drivers' licenses are mentally incompetent, it follows -- in
answer to your first two questions -- that the county clerk
is required to notify the department   of such findings re-
gardless of the nature of the proceedings.

     Our attention has been    directed to     article   5547-12,
V.T.C.S., which reads:

           Each and every writing, including but not
        limited to docket books,    indices, judgment
        books, etc., in a mentally ill docket in the
        office of the county clerk is hereby declared
        to be a public record of a private nature
                                              ._
        which mav,be used, insoected. or CODleCi      -
                                                   only
        bv a written order of the county iudae, a
        judge of a court having probate jurisdiction,
        or a district   judge of the county in which
        the docket is located.    No such order shall
        issue until the issuina iudae has entered
        findinas that said      use, inspection,      or
        copying   is justified and in the        public
        interest or that such release       is to       a
        patient,   former patient, or to a person
        designated by the patient upon signed and
        written   consent for the release of such
        information by the allegedly mentally        ill
        person; and that the reasons    for such use,
        inspection,   or copying    fall within      the
        statutory   exemptions  to confidentially     of
        mental health   information  or physician/pa-
        tient privilege where the disclosure of such




                               P. 5928
Honorable Mike Driscoll - Page 4   (JM-1126)




        information is in issue. Such records    shall
        be released to any attorney representing   the
        proposed  patient in a proceeding held under
        this code.    Nothing herein   shall prevent
        access by law     enforcement  personnel    to
        necessary information in execution of a writ
        or warrant.  (Emphasis added.)

     Article 5547-12 must be read in pari materi        with
section 30 of article 668713, V.T.C.S. See 67 Tex. Jur. 3d
Statutes § 136, at 747. Since the legislature has deter-
mined,  by enacting    section  30 of article    6687b, that
certification by the clerk to the Department       of Public
Safety of findings of mental   incompetence is in the public
interest, it would be contrary to the plain meaning of the
statute and an abuse of discretion for a court to find
otherwise.   See Bullock v. Bins0 Kina Co., 714 S.W.2d   320
(Tex. App. - Austin 1986, writ ref'd n.r.e.).

      There is no necessity of a separate "finding" by the
court, pursuant   to article   5547-12, that furnishing   such
infornation to the Department of Public Safety     is i;: the
public interest because a finding of mental incompetency, by
reason of article 6687b, section 30, necessarily includes    a
finding that it is in the public interest to supply        the
information to the Department of Public Safety. See Morris
                                                        ..----
v. Short, 151 S.W. 633     (Tex. Civ. App. - Texarkan'a 1912,
writ ref'd). Nor, in our opinion, is an order by the judge
necessary to authorize    transmission of the informati.on by
the clerk to the Department    of Public Safety. The special
provisions of article 668713, section 30, are to be regarded
as furnishing an exception to the general requirements      of
article 5547-12 insofar as they concern the use, inspection,
and copying of such records. -See 67 Tex. Jur. 3d Statutes
$9: 126, 136 at 719, 747.

     We therefore advise that the county clerk is required
to notify t.he Department of Public Safety of any finding bY
ain
  y court of competent      jurisdiction  that a persor; i::
mentally in>ompetent, whether or not the court's findings or
iudgment recite that the person does (or does not) hold a
driver/s license.    The clerk has no duty to deterni~ne
whether the person adjudged mentally incompetent     holds a
driver's license when court findings are silent about the
matter: the clerk's duty is to notify the Department       of
Public Safety   in any event.    See senerally  Open Records
Decision No. 516   (198Y) (inter-agency transfers of confi-
dential information not violative of the Open Records Act).




                              p. 5929
E

    Honorable Mike Driscoll - Page 5        (JM-1126)




                              SUMMARY

               The county clerk is required to notify the
            Department of Public Safety of any finding by
            any court of competent    jurisdiction that a
            person is mentally incompetent,    whether  or
            not the court's   findings or judgment recite
            that the person does    (or does not) hold a
            driver's license. The clerk has no duty to
            determine that a person so adjudged holds a
            driver's license.




                                          LJ bu+c
                                             Very truly yo   ,

                                                  ;M,
                                             JIM      MATTOX
                                             Attorney General of Texas

    MARY KELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion   Committee

    Prepared by Bruce Youngblood
    Assistant Attorney General




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