                                                 .’
Honorable Homer Garrison, Jr.
Director
Department of Public 'Safety
Box 4087,North Austin Station
Austin, Texas
                                Opinion No. W-631
                                Re:   Does the Deoartment of
                                      Public Safety have author-
      .                               ity to deny the r~enewalof
                                      an operator'g commercial
                                ‘..   operator's, or chauffeur's
                                      license without a hearing
                                      when the licensee has an
                                      accumulation of numerous;,
                                      incidents of traffic law
                                      violations recorded on
                                      his driving record, and
Dear Colonel Garrison:                related questions.
          In your letter of October 16, 1958, you set outthe
following proposition:          a
     "The Department's problem in this respect arises
     from language which appears in the case of Texas
     Department of Public Safety v. Azar, 274 S.W.2d
     911 (n.r.e.). It Is contended by some that the
     Azar case prohibits the Department from ever re-
     fusing to renew a license if the applicant can
     successfully pass the prescribed examination.
     Others say that the Azar case has been miscon-
     strued and has been limited,by subsequent
     decisions so that the Department can refuse to
     renew any license so long.as the refusal is based
     upon substantial evidence and the Department's
     action is not'arbitrary nor capricious. Still
     others feel that.the Azar case denies the Depart-
     ment authority to refuse to renew *hen there ha8
     been no prior affirmatlve"findlng that the
     applicant is an habitual violator of the traffic
     laws, b,utwould not prohibit the Department from
     refusing to renew a license If there exists an
Honorable Homer Garrison, Jr., page 2      (w-631)


       unvacated affirmative finding pursuant to Sec-
       tion 22 of Article 668713.”
          In view of the foregoing, you request our opinion on
two questions. The first question Is as follows:
       "1 . Does the Department of Public Safety have
       authority to deny the renewal of an operator's>
       commercial operator's, or chauffeur's license
       without a hearing when the licensee has an
       accumulation of numerous Incidents of traffic
       law violations recorded on his driving record?'
            Section 4 of Article 6687b, Vernon's Civil Statutes,
sets   out who may be licensed:
       "The Department shall not Issue   any   license here-
       under:
       "1. . . . A license shall not be issued to any
       applicant who has not passed the examination
       required in Section 10 of this Act. . . .
       II
        . . .
       "9 . To any person when the Department has good
       cause to believe that the operation of a motor
       vehicle on the highways by such person wo,uldbe
       inimical to public safety or welfare."
          Article 6687b does not have any provision for auto-
matic renewal of a license once it has been issued -- the
only provision is for Issuance of new licenses. However, we
understand that it has been the consistent Departmental policy
for a number of years to reissue licenses upon application
and payment of a fee, unless some special action is, in the
opinion of the Department, called for.
          The cases arising from Departmental action in
refusing to reissue licenses under Section 4, either state or
imply that the Department may exercise Its own discretion in
issuing licenses.
     II
      . . . The law provides that the department
     shall have the power to examine applicants
     for such license and refuse to issue license
     to any person who fails to,successfully pass
     such examination, or If It is found that the
                           7
Honorable Homer Garrison, Jr., page 3   (~~-631)


    granting of the license would be inimical to
    public safety.” Department of Public Safety
    v. Robertson, 2033.W.2d 950. (Emphaela added)
     “A refusal by the Department to ‘renew a ,..
     ;i;~f8is    authorized by Art. 6687b, Sets.
                     . The statute does not put
     a limit in how long the Department may hold
     up the renewal of a license.        ” Hoover
     v. Texas Department of Public iaheiy,r
      .Y .26 228.
    ‘“Section 9 fif Section 47 of Article 6687b,
     vests the DTpartment wi%~ the dlsoretlon to
     nrant or refuse a license.
                              ,_ under annronriate
    ~sets of facts. . . i” Texas Department of
    ‘Public Safety v. Jackson, 272 S.W.2d 577.
          The Department’s action in refusing to regssue a
license Is subject to Judicial review under Section 31 of
Article 6687% to determine if such act was supported by sub-
stantial evidence.
          The Department has discretion as to whom it will
Issue (or relssue)a license. However, in the exercise of -.
this’Ydiscretlonthe Department may not act in an arbitrary
and capricious manner; I.e. in a manner unsupported by
substantial evidence. Upon appeal, whether the Department
did so”act is a matter of law, and Is not for jury ,deter.mi-
nation. (See Department of Public Safety v. Robertson, eupra,
and case8 cited therein.)
          The cases reflect that the courts will not consider
                                                 yas
an applicant’s past driving record, standing alone      suf-
ficient grounds to meet the test of substantial evidence in
support of the Department’s action.
     *,     This attitude leaves out completely the
     w;li known fact, of which we may take judicial
     Icnowledge,,thatpeople reform. They do so by :
     embracing the tenant of secular organizations
     such as Alcoholics Anonymous and renewing their
     former pledges or making new pleses to religious
     organizations and to their Lord. t,Jazz;;;D;;;@- /
     ment of Public Safety v. Pryor,
     321 S.W.2d 99.
          Whether the Department afforded the licensee an
opportunity for a re-examInatlon in support of his application,
                                                          ~..~
                                                                    .   _




      Honorable Homer Garrison, Jr., page 4   (m-631)


      whether such was requested by the applicant, and the result
      of the examination If given are facts considered by the
      Courts in addition to the applicant's past driving record
      in testing the reasonableness of the Department's action.
            . . . It has been held that when the Department
           is presented with an application for a renewal
           of a license, the Department must either grant
           the renewal license or require the applicant to
           take another driver:s examination." Hoover v.
           Texas Department of Public Safety, 305 S.W.2d
           228. (Emphasis added).
                In Garrison v. Smith, 306 S.W.2d 244, Hoover v. Texas
:     Department of Public Safety, 305 S.W.2d 228, Department of Pub-
      lic Safety v. Robertson, 203 S.W.2d 450, the courts considered
      whether the Department afforded the applicant an opportunity
      for a re-examination, whether the same-was requested by the-
      applicant, and the result of same In arriving at its conclu-
      sion of law as to whether the Department's'actlon was supported
      by substantial evidence.
                In ,ouropinion, upon appeal It must be shown that the
      Department afforded each applicant an opportunity for a
      re-examination before a reissuance request Is denied; and, that
      unless such Is done, the Department's refusal to reissue will
      be held to be arbitrary and capricious. If the Department has
      afforded the applicant an opportun'ty for a re-examination,
      and the applicant refuses to take it or fails to take It, then
      such fact may be considered in connection with the applicant's
      past driving record as evidence as to the reasonableness of the
      Department's action. This was done in Department of Public
      Safety v. Robertson. We point out In this connection that when
      an examination is offered, the applicant's past driving record
      Is not standing alone, but is coupled with the additional fact
      of whether the applicant would or would not take an examination.
                Of course, If an applicant for relssuance Is afforded
      the opportunity of taking the examination and should failthe
      examination, then, the applicant is not entitled to a license by
      the very terms of Subsection 1 of Section 4 of Article 6687b.
                 Each of the above cases has been determined on
       specific facts and circumstances which compelled the Individual
    ~.'decisions, and no case, with the exception of Texas Department
      .of Public Safety v. Azar, 274 S.W.2d 911, has ever directly    *
       passed upon the whole question In one decision.
         Honorable           Homer oarriaon,   Jr.,    page 5     W-.631)



.,
                      We are of the oplnlon ,that the Azar case, in principle,
         is in full accord with the underlylng~prlnalplea       astabllehed  by
         the other case6 oited In this opinion;       and, in our opinion,  con-
         trole the determination      of the question8 you have preeented.
         It ahould be recalled      that in the Azar case no findings of fact
         ;;;yoluaions      of law were requestxnd       none were filed by the
                    The controlllng   question and the only actual point
         neoesky      for the decision   ia aet out in the language of the                             ”
         aourt 88 follower
                                Since no findings of faot or’ conoluulons
                         oi ia; were filed‘we    must aaeume that the courts
                        ,le rendering lte’ Judgment found either that the
                         Department did not have eubetW5lal      faots ‘upon
                         which to baee its a&ion in refusing the renewal
                         of appellee’s  lioense,   or it aoted arbltrarlls”ln
                         the matteP . ” (Emphaa’U added)
                     The Azar oaee eetabliehes   that the Legislature    did not
         intend that thspartment       could refuse to reitisue a lioenB8
         rsnardlesa   of whether the applioant   oould,quallfy  by Parsing
         the exkmination given by the Department,. just because, df vre-
         vl3us violations   of law. Rather,, .the o,+urt indicated   that
         h&d the Department granted the anpellee 8n exaMnation and
         hack t,he appellee pawed it, Bhe would.have been entitled      to    .’
         hav&her, license relsauvI..                                                                       .
                        7,    The oouWo6noltiddd      Its   oplnioti   with thlr   rtatmaent:
                        ‘ti       The appellee having properly flled her
                        aipiiiation    with the Department beiars ,the
                        expiration    date of her Old lloen5e,
                        ment; not having reaueated an
               I    .
           ’       I



                    gvm though,the oourt, In our opinion,     lrroneourlp                              r
         olted Seotlon 18 of A&lo18 6687b In ICI opinion,      the oplnlon
         olearly ‘lndloatea the reaeonlng of the oourt.    Whether thin                            .
         Qitrtion  18 oorreot  la Immaterial, beoaure tho’oplnlon    oon-
     1   form to the general proporitlonr     aa deolded In other 0+8e8,
         olted herein.    The opinion maya, In part:
                         I
                                  The 6nly remtrlotion  thht u~r~ be plaaed               ,
                        e: ih; renewal of a lloenre,     aboordbig to thr
,’                      rtrtutel,    In that the departaent u$ refare to             ‘,
                        renew the lloenre without an examinationi ii It
                        ha8 reaaon to believe that lloenred      10 na 2onger                 ,.
               .,
                                                         -      .




Honorable Homer Garrison, Jr., page 6   (WW-631)



     qualified. It is ow opfnion that the Depart-
     ment
     ^.   acted
           _    arbitrarily and without sufficient
     facts In refusing to renew the license without
    giving the aDDliCant an oDDortunltY to be
    ,Oe-examined so the Department could determine
     from that examination whether or not the
     appellee was ,qualifiedto operate an automobile."
     (Emphasis added)
          It is clear from the Azar case that the Department
does have discretion as to whether it will reissue a license,
but that in testing such discretion, the courts will inquire
Into whether the Department afforded the applicant an oppor-
tunity for a re-examination.
          In answer to your first question, in our opinion
the Department may not refuse to reissue a license solely
and exclusively upon the ground of the licensee's past driving
record, but the Department must afford the applicant an
opportunity to take a re-examination. If the examination is
passed, the Department would be guilty of an arbitrary and
capricious action if it refused reissuance. If the appli-
cant does not pass the examination, a license should be
refused. If the licensee refuses to take the examination,
this fact, coupled with the past driving record of applicant,
can be considered in testing the reasonableness of the
Department's action.
          In this connection, we sho,uldstate that in order
for the Department to sufficiently meet its burden, an
applicant must be informed that he is afforded the oppor-
tunity of taking a re-examination, and if successful, will
have his license reissued. In several of the cases cited
above, letters from your Department informing the applicant
of the denial and the fact that it is an offense to operate
a motor vehicle without a valid license were set out. In
our opinion an additional paragraph on such letters fully
.statingthe applicant's right to take a re-examination would
be sufficient notice of such fact.
          The second question is as follows:
                                                                    .,,
     "2. Does the Department of Public Safety
     have authority to deny renewal of an
     operator's, commercial operator's, or
     chauffeur's license without a hearing when
     the 'licenseehas an acc,umulationof num-
     erous incidents of traffic law violations
     recorded on his driving record when there
Honorable Homer Garrison, Jr., page 7   (m-631)



    (exists an unvacated affirmative findinn,
     pursuant to Sec. 22 of Art. 66&%, that
     the applicant is sn habitual violator of
     the traffic laws?"
          You use the term "unvacated affirmative finding".
We shall assume you inquire of a situation wherein a hearing
had been held under Section 22, which resulted In an affirm-
ative finding that the licensee was an habitual violator of
the traffic laws, but befor=.the licensee could perfect his
appeal or before the Department could suspend the llaense,
the license expires by virtue of Section 18. We shall limit
this portion of our opinion to such situation.
          It is settled that the susp-ehslonof an existing
license (under Section 22) and the relssuance of a license
(under Section 4) are separate and distinct, involving.
different issues and different statutory procedures. (Hoover
v. Texas Department of Public Safety, 305 S.W;2d 228).   It is
eauallv well settled that where i3 license expires by virtue
of Section 18 during the Section 22 suspension prooedure or
the appeal therefrom, the procedure a--dthe questions under
consideration become.moot. (Boston v, Garrison, 152 Tex.
253, 256 S.W.2d 67 (1953)).
           Section 22 has a rather complicated provlslon for
appeals of an affirmative finding before the Department may
act. After the Department acts, another appeal from the
order of the Department is provided by Section 31. Since the
expiration  of a license during the Section 22 procedure (from
initial hearing until the ultimate appeal becomes final) makes
such procedure moot, we feel that the Department could not
utilize a portion of that procedure (the finding of a hearing
officer) to support an entirely different statutory action.
While it is true that such a finding might lend some slight
support to the Department's position, we do not feel that a
moot finding which the licensee could no longer test In
court, would authorize Departmental action.
           In our opinion, when the liienssels ~licenseexpires
durinu
     .- a Section 22 procedure,.th.e,Departmentis relegated
to issuance or refusal of a new license as setout ihour
answer to Question No. 1 above, and the existence of a moot
affirmative finding concerning the licensee.would be im-
material.
                                                             ,.   .




Honorable Homer Garrison, Jr., page 8    (WW-631)


                              SUMMARY
            The Department of Public Safety does not
            have'authority, under Article 6687b, Vernon's
            Civil Statutes, to deny the reissuance of an
            operator's, commercial operator's, or chauf-
            feur's license without affording the licensee
            an opportunity to take an examination; the
            applicant's past driving record standing alone
            will not justify the Department refusing to
            reissue a license; the fact that there Is an
            unvacated affirmative finding under Seation 22
            Is immaterial to the Department's authority
            to reiaaue licenses.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas



                                  Tom I. McFarling




TIM:me:sd
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
L. P. Lollar
Leonard Passmore
Joe Allen Osborn
James Daniel McKeithan
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert
