                                   The Attorne~y General of Texas

  JIM MATTOX                                           S~‘ptember17, 1986
  Attorney General



  Supreme Court Bulldlng         Colonel James B. Adams                     Opinion No. JM-546
  P. 0. Box 12546
                                 Director
  Austin, TX. 76711. 2546
  5121475-2501                   Texas Department o:iPublic Safety          Re:   Whether the Texas Depart-
  Telex 9101674.1367             P.O. Box 4087                              merit of Public Safety may
  Telecopier   512/475-0266      Austin, Texas 787'13                       impound a vehicle under section
                                                                            4A of article 6701h, V.T.C.S.
  714 Jackson, Suite 700
  Dallas, TX. 752024506          Dear Colonel Adams:
  2141742-6944
                                      You question the constitutionality of section 4A of article
                                 6701h. V.T.C.S., 1:he Texas Motor'Vehicle Safety Responsibility Law.
  4624 Alberta Ave.. Suite 166
  El Paso, TX. 79905-2793
                                 You ask whether the Texas Department of Public Safety may, acting
  915/5353464                    pursuant to section 4A, impound certain motor vehicles without viola-
                                 ting the due procms and equal protection clauses of the Fourteenth
                                 Amendment to the 1Jnited States Constitution. If the department may
,/QOl      Texas. Suite 700      constitutionally take such action, you also ask about the proper
        uston, TX. 77002-3111
  I 131223.5666
                                 procedure for stor:ingand eventually disposing of impounded vehicles.

                                            Section 4A provides:
  608 Broadway, Suite 312
  Lubbock, TX. 79401.3479                          (a) my    motor vehicle operator who is not
  606/747-5236
                                                domiciled within the United States and who operates
                                                a vehicle which is in any manner involved in an
  4309 N. Tenth. Suite B                        accident .within the State of Texas in which any
  McAllen, TX. 76501-1665                       person is killed or injured or in which damage to
  51216824547
                                                the prollerty of any one person, not including
                                                himself, to an apparent extent of at least One
  200 Main Plaza, Suite 400                     Hundred Dollars ($100) is sustained shall be taken
  San Antonlo. TX. 762052797                    imaediat1:l.ybefore a magistrate and there shall
  512/225-4191                                  present proof of financial responsibility.

  An Equal Opportunity/
                                                   (b) ::f a person does not present proof of
  Affirmative Action Employer                   financia:. responsibility in accordance with Sub-
                                                section (a), the magistrate shall enter an order
                                                directin!; the Department to impound the vehicle
                                                operated by the foreign domiciliary. The Depart-
                                                ment sha:.l.
                                                           hold the vehicle until:

                                                   (1) il cash bond, in an amount to be determined
                                                by the magistrate, has been posted with the Depart-
                                                ment ;




                                                               p. 2519
Colonel James B. Adams - Pa;;s2   (JM-546)




            (2)  a release has been executed by the other
         party or parties ':othe accident and the release is
         filed with the De,?artment;or

             (3) the Department receives certification of
          the entry of a flnal judgment of liabiltty in the
          accident from a court of record.

     The general purpose of the Safety Responsibility Law is to
require the owners and operators of motor vehicles to discharge their
financial responsibility to others for injury or damage to persons or
property resulting from motor vehicle accidents in Texas. One method
by which the act advancec: this purpose is to require owners and
operators to provide security for damages pending a final determina-
tion of the questions of r:egligence and liability. See art. 6701h.
15. If an owner or operator fails to satisfy the conditions of the
statute, he stands to lose his license and/or vehicle registration.
Id.   Section 4A addresses the problems presented by motor vehicle
operators who are not domiciled within the United States by providing
for the impounding of a motor vehicle operated by a nondomiciliary if
the nondomiciliary fails tc'present proof of financial responsibility
in accordance with subsection (a) of section 4A. -
                                                 See §4A(b).

                      Bell v. Burson, 402 U.S. 535 (1971). the United
     You note that in --
States Supreme Court held that a similar statutory scheme violated the
due process clause of the Fourteenth Amendment. The statute under
fire in Bell v. Burson did not. however, apply only to motorists who
are not domiciled in the 1Jnited States. You ask whether the due
process clause applies to persons covered by section 4A of article
6701h and whether the section also raises equal protection problems.
The Supreme Court has long held that aliens, even aliens whose
presence in this county is deemed unlawful, are entitled to the due
process of law guaranteed by the Fourteenth Amendment. Plyler V. Doe,
457 U.S. 202 (1982); Shaajhnessy V. Mezei, 345 U.S. 206 (1953).
Accordingly, the decisionin Bell v. Burson applies to nondomiciliary
motor vehicle operators who Eall within section 4A of article 6701h.

     In Bell v. Burson, t:le Supreme Court considered the constitu-
tionality of a Georgia statute that required motorists involved in
accidents to post security under penalty of loss of their drivers'
licenses.   The due procc%s clause of the Fourteenth Amendment
prohibits state action that.deprives "any person of life, liberty, or
property, without due process of law." U.S. Const. amend. 14, 91.
This constitutional restraint also limits state power to terminate an
entitlement, whether it :.EIstyled a property "right" or a mere
"privilege." 402 U.S. at 5839; see Goldberg V. Kelly, 397 U.S. 254
(1970). Recognizing that the su~nsion     of issued licenses involves
state action that adjudicates important interests of the licensees,
the Court stated that, once!issued, licenses are not to be taken away
without procedural due process. -Id. Procedural due process requires




                                  p. 2520
Colonel James B. Adams - Pago 3    (m-546)




notice and an opportunity for a hearing appropriate to the nature of
the case. Bell v. Burson, $02 U.S. at 541-42. Thus, the motorists in
Bell V. Burson were clearly entitled to a hearing; the vital question
was the kind of hearing due process requires.

     It is well established that due process requires a "meaningful"
hearing. Id. Bell v. Bursz: turned on whether the state must provide
a hearingwhich     includes consideration of the question of the
motorist's fault or liabili,typrior to suspension of the motorist's
license. Georgia argued that a hearing on liability was unnecessary
because fault and liability were irrelevant to its statutory financial
responsibility system. 402 U.S. at 541. The Court disagreed, noting
that in the overall analys:isof the statutory scheme, the determina-
tion of liability played a, crucial role as to whether a motorist's
license was actually susperded. Id. For example, a release executed
by the injured party or parties would prevent license suspension. -Id.
For these reasons, the court held That

         [allace the statutory scheme makes liability an
         important factor in the State's determination-to
         deprive an individual of his licenses, the State
         may not, consisttntly with due process, eliminate
         consideration of that factor in its prior hearing.

402 U.S. at 541. As will be shown in the discussion to follow,
article 6701h is similar to ,thisstatutory scheme.

     One of the primary purposes for the enactment of article 6701h
was to require owners a& operators of motor vehicles to provide
security for damages pending determination of the issues of negligence
and liability. Oliviera v. Texas Department of Public Safety, 309
S.W.2d 557, 560 (Tex. Civ. &pp. - Dallas 1958, no writ). Section 5 of
article 6701h was. prior to amendment in 1975, directly analogous to
the statute at issue in Bell v. Burson. Although section 5 provides
for suspending licenses yz    vehicle registrations while section 4A
provides for impounding vehicles, the procedures for the imposition of
these penalties in the prior version of section 5 and in section 4A
are the same. Accordinnlv. the Texas Lenislature's resnonse to Bell
V. Burson, &,    by ameid&    section 5, 1s significant'to an u*XZ
standing of section 4A.

     Section 5 requires,owners and operators involved in certain motor
vehicle accidents to submit proof of liability insurance, to otherwise
post security, or to show release from liability under penalty of
suspension of drivers' licenses and motor vehicle registrations. Prior
to the Supreme Court's dec:.sionin Bell V. Burson, section 5 did not
provide for a hearing on the issue of fault or liability prior to
license and registration suspensions. See Acts 1971, 62nd Leg., ch.
944, 53, at 2860. The Teaas courts stated that fault or liability
under this version of artit,le6701h was irrelevant; a blameless motor




                                  p. 2421
Colonel James B. Adams - Page 4   (J&546)




vehicle owner or operator could be required to furnish security for
                           -<-identbefore fault was determined. Texas
damages resulting from an a,..
Department of Public Safety V. Gillaspie, 254 S.W.2d 180, 183 (Tex.
Civ. App. - San Antonio 1952), aff'd. 259 S.W.2d 177 (Tex. 1953),
cert. denied 347 U.S. 933 11.954). Like the Georgia statute at issue
in Bell V. Burson, however, liability ultimately influences whether a
license or registration is revoked under article 6701h. See 65(b).
In 1975, the Texas Legislature amended section 5 of articl~70lh    to
provide for a hearing on the issue of liability to conform to the
constitutional requirements of Bell V. Burson. See Acts 1975, 64th
Leg., ch. 347, 51, at 931; see also Bill Analysisto S.B. No. 192.
The legislature, however, did not amend section 4A to provide for a
hearing on the issue of liaxllity.

     Although section 4A de.als with impounding vehicles as security
rather than with suspending drivers' licenses and vehicle registra-
tions, similar due proceys :onsiderations apply. The Supreme Court in
Bell v. Burson determinei. that due process requirements applied
because the suspension of issued licenses involyes state action that
adjudicates important interasts of the licensees; continued possession
of a license may be essential to the pursuit of a livelihood. 402
U.S. at 539. Impounding a motor vehicle is potentially even more
onerous because it directly affects tangible personal property -- not    ---.
simply an entitlement -- wiich may be essential to the pursuit of a
livelihood. Consequently, the due process considerations discussed in
Bell V. Burson, apply to se:ttion4A of article 6701h.

     Section 4A is similar to the pre-1975 version of section 5 and to
the Georgia provision decla,red unconstitutional in Bell V. Burson.
Section 4A does not requ:lre a hearing on the issue of fault or
liability prior to the impa~nding of a vehicle; it authorizes impound-
ment regardless of whether the nondomiciliary is likely to be liable
for damages or injuries. Section 4A(a) states that any nondomiciliary
motor vehicle operator involved in an accident incurring injury or a
certain dollar amount of pzoperty damage "shall be taken immediately
before a magistrate and there shall present proof of financial
responsibility." If the nondomiciliary fails to present such proof,
"the magistrate shall enter an order directing the Department to
impound the vehicle." Sec. 4A(b). Thus, section 4A fails to provide
for a hearing on the issue 'offault or liability for the injuries or
damage caused prior to thsa impounding of a vehicle involved in an
accident. Subsection (b)(2) of section 4A. however, provides that the
vehicle need not be impounded if the nondomiciliary files a release of
liability executed by the qother party or parties to the accident.
Thus, like the Georgia statute at issue in Bell V. Burson, liability
ultimately determines whether a vehicle is actually impounded and
whether it must remain impounded. Consequently, section 4A fails to
provide the minimum proce&ral due process guaranteed by the Four-
teenth Amendment to the Uni,ted States Constitution. Because section     ‘7
4A suffers fatal defects under a due process analysis, examination of



                                  p. 2422
.

    Colonel James B. Adams - Page 5    (JM-546)




    section 4A under the equal protection analysis which you suggest is
    unnecessary at this time.

                                  SUMMARY

               Because sectior. 4A of article 6701h does not
            provide for a he.aring on the issue of fault or
            liability for a mt:or vehicle accident involving a
            nondomiciliary motor vehicle operator prior to the
            impoundment of the nondomiciliary's vehicle, section
            4A fails to compl],with the minisum procedural due
            process requirements of the Fourteenth Amendment to
            the United States Constitution.




                                            -JIM      MATTOX
                                              Attorney General of Texas

    JACK HIGHTOWER
    First Assistant Attorney General

    MARY KELLER
    Executive Assistant Attorne:?General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Jennifer Riggs
    Assistant Attorney General




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