Honorable Yallace Shropahlre        Opinion      No.   M-29
County Attorney
Travis.County                       Re:       Construction of Seotlon
Austin, Texas                                 2(b) o$ Artlole 67olh,
                                              Vernonte Civil Statutes,
                                              relative’to stag orders
Dear l&h?,
         Shropehire:                          of the oourt .
          In a recent letter to this oiiice ou requested an
opinion in regard to the above refereno6d ma?ter, lie quote
from your letter a8 follows:


         “(1) Is it within the dieoretlon of the
    Court to stay an order of .the flexas Depart-
    ment /iifPub&la Safet;efbased Upon TWitable
    gPOuncr8?
          “(2) Is ft within the discretion of the
     Court to stay an order of the Department if
     the appeal Is not predicated upon either the
     conditions enumerated in Seotion 5(c), or the
     exceptions under Section 6 of the Aot?
          ,I     n
           0 0 a
          Section 2(b) of Article 6701h, Vernon’s CSvil Statutes,
commonly known as the Safety Responelblllty Law reads, in part,
as follovrs: ‘.
         “Any,, order or act’of the /Texas7 Depart -
    ment fif Public Safet 7 und’ertie pFovi,sions
    of thrs Act, may be su % ject to review within
    thirty (30)   days after notice thereof, or    .‘I’
    thereafter for good oatiseshown, by appeal to
    the Co@-&y Court at Law at the inetanoe of any
    party in intereat and in the county wherein
                        - 123 -
                                                         ,    .


                                          ..,




  Hon. Wall&   ShPopshiJre,pages2,(M-29).


     ~'~
       ~the person ,aggrlevedby,auoh order,of &t
        ,resfdes, UP if %here be no County,':Court  ate
        Law thereln,.then in the County'CoWt of,'sa+d'~'       ~. ','
        county, or.lf3here be no County ~Court h,$vln&
        juPi8dlct~on, then such jurlsdlction~sh&ll,be'
       'In the Dlstriot~Court of ,sald,county; and' such,
        C&rt;'l8:'herebyve8t&d.'wlth.   jurisdiction, and
        such ap$e&shall     be:Jy'trlal.de novd;,.The
        Court sha.11determine tihether.,the'flllngbf
        the,appeal .shalloperate a8 a ~stay of any
         such.order or decision of the.Department, with.,
        the excegtlon thatno staysOPdeF.shall be
        grantea.staylng an .order ,?f suspenslpn.by the,.
       :Dep&tm@nt,of ,Publlo~Safety'that,lI@    baaed ,?n:',~
   .. "kflnal~judgment rendered agsinst any ,pePson '~1 ",
      ~.'ln:thls        by & :court o~f'competent.
                  estates                         jus$s- ...
        dl&ion,grow$ng otit~of;-the   use of.8 motor
         Vehicle ln~'this St,a~terhen, said-judgment 18'.
         a ,sub&lstlkgfin@ judgment,and'un~satlefled.;
        ~fWther, 'ti'appaal shall,n@ .oper@e~i+sa' etay ,'
         of 'any stich~dth@ orders'or decislotis, of the ".,         ,,
      ~,Department,of:Publlc S,aretywhere~the,~aggrleved,    ;
         paPty was involved Inan Bccidefft'involving~a
        motor'vehlole,which~he was opei?a$lngelf he was
         charged ~wfth'a vioiatibn'of aay'of the laws.~of
         the State'of Texas, or any of Its political
        :subdlvlslo~s, and,8ald complaint or lndlctment~,
         fs pending at,thiitime the.tippea,l  fPom,an,order
         or declslon of ~theDepartment of Publlc~Safety
         Is filed, unPess the aggrieved party shall file
         proof of f,lnsnclal~e8pOnslblllty with the Depart-~
         ment of Public Safety ae a ,condltlonprecedent to     ~'
         the obtalfiln&of said sta apd maletaln~said,proof
         of.flnancfal~Pes~dnslblllfy until dlsmlssal cif
         sa$d,,com$alnk or ln~lotmen$'.6rfor 8uc.hperiod
       'of time,as,grovlded forkin Sdctlon 2(d),.ofthis,
      .Act. Alma        (E3nphasls~added.)             ~,, ':     .-
             S&f&5      of.~~tlcle'ti70ihp:.'Verns;n8s
                                                    C$vl~~Statutes, ,,
   provides t&at the Texas~Dk$aPtment'.oPPub119 Safety,shall,undeP
   certain 'eondlt.lor!s
                       .r'equfrepersons,Involved In motor,vehlc~e
   &cldents within this .Sta$e to &kt,.wlth th@,Department as
 : 'securltypa~ sum of ,moni%ywhlc~hin the ~Departmentss~judgment;
   would.be ~sufflelentto ~satlsfyany ~juci@&nt for damages result-.
   ing from stichaccident, Section 5,'alsoprovides that"the'De-,
.' partment shall suspend the',dr$ver'sllc'enseand,al& motbr yehicle'
  ,reglstratlons of each operator and owner of,a~motor,vehicle In-
   vol.vedin such accident unless such person post,s.therequfred.
                            -124:
HOA. Wallace Shropshlrej page   3 (M- 29)


tiecurltyor otherwise complies with the provisions of.&lcle  -'
6701h. Subsection (c) of Section 5 PPOVlde8, in part* a8 follows:
          "(c) This Section shall not apply under
     the conditions stated j.nSection 6 nor:
            "1. To such operator or over    If such
     owner had In effect at the time of such‘accldent
     a motor vehicle llablllty policy with respect,
     to the motor vehicle Involved In such accident;
         "2. To euch operator, If not the owner of
    such motor vehicle, If there was In efrect at
    the time of euch accident a motor vehiole llablllty
    policy or bond with reepect to hi8 operation of
    motor vehicle8 not owned by him;
         “3. To any pereon employed by the government
    of the United Statee, when such perron $8 acting
    within the ecope or office of his employment)
          "4, To 8uch operator or owner If the llablllty
     of such operator or owner for.::damaSes
                                           resulting
     from such accident Is, ln,.thejudegnentof the I&-
     partment, covered by any other form OS llablllty
     Insurance policy or bond; nor
         "5Q To any person quallfyln$ aeVa eelfd
    insurer under Section 34 of thle Act,ym to any-
    person ogeratlng a motor vehlole for such self-
    insurer.
          Section 6 of Article 6701h, Vernon's Civil Statutes,
provides as tollowsn
          "The requirements a8 to 8ecurltys proof
    of financOa1 re6ponslblllty and suspension in
    Section 5 shall not apply0               I.
                                       ,_
          "1. To the operator or the owner of a'        l

    motor vehicle involved in an accident whf&eln
    no injury  or damage wau caused to the person
    or pPOp8Pty of any one other than such oper8to-P
    or owner;
         "2, Tp the operator or the owner of a
    motor vehlale lemlly parked or legally atopped
    at a traffic sl@Ial at the time of the accident9
                          * 12s -
Hon. Wallace Shropshlre, page 4 (M-3)


          “3. To the owner of a motor vehicle If
     at the time of the accident the.vehicle was being
     operated without his permission, express or lm-
     plied, or was parked by a pereon who had been
     operating such motor vehicle without such per-
     mission; nor
           "4. If, prior to the date that the pepart- -
     ment would otherwise suspend licenee and reglstra-
     tlon or nonresident's operating privilege under
     Section 5, there shall be flle~~svlththe Department
     evidence satisfactory to It that the person9 who
     would otherwise have to file security and proof,
     has been released from liability or been finally
     ad judlcated not to be.liable or has executed a
     duly acknowledged written agreement provldldg for
     the,payme# of an agreed amount In lnstallment8,
     with respect to all claims f2r Injuries or damages
     resulting from the accident.
            The questions involved In construing the provisions
of A&lcl&    6701h, Vernon'8 Civil Statutea, may be etated a8
follows:
          (1) What must a person, who,Is aggrleved
     by a Depar%ment of Public Safety suspenelon
     order/do In order to properly effect his appeal
     and to bring the appeal within the actual jurls-
     diction of the court which has potential jurls-
     diction of the appeal?
            (2) What Is the extent of the power of a
     coure which has jurlsdIctlon of such an app,eal
     to stay such a suspension order of the DepaPt-
     ment ?
          In oraer to confer ao@al jurisdl~tlon on a court,
having potential jurladlctlon of an appeal from a Department
ordero suspending a driver's license or,motor vehicle registration,
the aggrieved party must In his petition allege as rounds at
least one of the conditions enumerated In Section 5 7c) or at
least one of the exceptions listed In Sec%fon 6 of the Act or
other grounds for the appeal, which if accepted,as true, would
be sufficient %o obtain a final judwlent In hls:behalf at a trial
on the merits of the case 0 In tiieEase of Ollv~lra v. Department
of Public S&fe%y, 309 S.W,2d 557 (T.?x.Clv.l_.  -_ ~_ n,w.h.).
                                          hODo lY!+3.
the court agreed with the appellant %hat his appeal, from a'ljepartment
suspension ordep1,should not have been dismissed for want of jurls-
diction for the reasons given by the trial court. The court
                           - 126-
                                     j
Hon. Wallace Shropshlre, pa$e !j (M- 29)
               <.


nevertheleea affirmed the.dlemiesal for want of jurisdiction on
the ground that “If every allegation in appellant’s petition
be accepted 88 true, he hae,,notstated leg&% grounds for a stay
of the order of suspension.   Ollveira v. Dkpartment of Public
Saaonauuio;;~t;~;~            The court,:.quoted from appellant ‘a

               “Under the undisputed facta d?acloaed             -1
         by the record appellant la subject to but h&s
         not complied with Art. 6?01h, sec. 5. He doea
         not claim that, he ccmee within any of the ex-
         ceptlona named in Art. 6701h, sec. 6.” Ollvelra
         v. Department of F’qblic Safety, aupra, gags
                                        aa cited with proval in
                                          311 S.W.W 2% (Tex.Civ.


              If the appealinS ps3’ty 18 OtherWi88 subject     to the
provialons of the Act end does not ‘come within one of the condi-
tlona named In Section 5 or one of the exceptions listed in Sec-
tion 6 of the Act there are no allegations    OS fact 8uffLcient tb
establish a prima facie ca8e and confer   juriad~ctlon.,on the trial
court.
                                                        .,..
           Once jurladiotlon    haa ittached, the provPaion8 of
Section 2(b)~ of Article 6701h v&at comDlete dfacretion in the
court to determine whether, the ap&eal ihall operate aa a’atay
of a Department auapenslon order* except In thO88 caaea where
the statute apeolflcally     provides that no eta order shall be
granted a The applicable portion of Section .27b) reads a8
follows t
           0    *The Court ahall determlne whether
      the f&g    of the appeal shall operate aa a
      stay of 8nyn8uch order or d8oialon of the Depart-
      ment, . . n
           It la therefore our opinion that, under the Safety
Reapon8lblllty   Law, Article 6701~1, it la not within the dla-
cretlon of” the trial court to stay 8n &der.of     auapenalon of
a driver Ia license or a motor vehiole reglsijratlon    of the Texas
Department of Public Safety upon equitable -&rounds. It Is also
ouroplnlon    that It is not within the discretion    of the court to
stay such order of auapenalon, if the sppeal la not predicated
Upot’.at leaat or@ of the oondltlon8.enumerated in Section 5(c),
or ut,l8ast one of the exceptions llated under Sectlon 6 of Article
6701h, Vernon’6 Civil Statutea, or upon other ground8 for the
app8a1, which If accepted aa true,~would be wfflclent       to obtain
                            - t27 -
                                                                 .   .




     Hon. Wallace'Shropshlre, page 6 (M-29)


     a final judgment In his behalf at a trial on the merit8 of the
     case.
               The sufficiency of the petltlon to coifer actual.
     jurlsdl~tlon of the appeal upon the trial court may be’teatied’
     by summary judgment proceedings': Wood v. Department of Public'
                  .W.2d 274 (TexiCiv.Al
     $$$$I~$'      of Pubilc'Safety 3~!‘S%‘%    ‘;;p’;di m!!
                  . Slmmona v. Depaktment Af'Publlc Safei
        .idnik    (&xxi                                T exaYi
     ment of Public Safet                           v.App, 19055,new.!.)

                            SUMMARY
                 It-is not within the discretion of the trial
            court to stay an order of suspension of a.driver's
            license or a motor vehicle registration of the
            Texae Department of Public Safety upotiequitable
            grounds.
                 I$ Is not within the discretion of the court
            to stay such order of suspension, If the appeal 1s
            not predicated upon at least one of the condltlons
            enumerated In Section 5(c), or at least one of the'
            tixceptlonslisted under Section 6 of Article 6701h,
            Vernon”s Civil Statutes, or other grounds for the
            appeal, which if accepted as true, would be suf-
            ficient to obtain a,flnal judgment ln his behalf
            at a trial on the merits of the case.'
                                  V&ti&y      yours,



                                        ey O&era1   of Texas

r.

     Prepared by Lewla E. Berry, Jr.
     Assistant Attorney General
     LEBjr:ra:mkh
     APPROVED:
     OPINION-COMMITTEE
  .   I




Han, Wallace Shropshlre,   page 7 (M- 29)


Hawthorne Phllllpr, Ch8m
w. V. aeppert, Co-Chelmen
John Reeve8
Marietta Payne
Pat Bailey
Monroe Clulrton
STAFFmm ASSISTANT
A. J, Cambbl, Jr.
