Attorney General Opinion WW-0631

Honorable Homer Garrison, Jr. Director Department of Public 'Safety Box 4087,North Austin Station Austin, Texas . Dear Colonel Garrison: Opinion No. W-631 Re: Does the Deoartment of ‘.. Public Safety have author- ity to deny the r~enewal of 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 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,ut would 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,uld be 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’Ydiscretlon the 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 an applicant’s past driving record, standing alone yas 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,,that people 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. ment of Public Safety v. Pryor, 321 S.W.2d 99. t,Jazz;;;D;;;@- / 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 take another driver:s examination." Hoover v. to 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 ,our opinion, 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) ., 1 ,’ 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 mat teP . ” (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: I . ’ I ‘ti The appellee having properly flled her aipiiiation with the Department beiars ,the expiration date of her Old lloen5e, ment; not having reaueated an gvm though,the oourt, In our opinion, l rroneourlp 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- 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. ment acted ^. _ It is ow opfnion that the Depart- 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 ,qualified to 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,uld state 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 .stating the 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 'licensee has an acc,umulation of 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-ehslon of 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 i 3 license expires by virtue of Section 18 during the Section 22 suspension prooedure or the appeal therefrom, the procedure a--d the questions under consideration become.moot. 253, 256 S.W.2d 67 (1953)). (Boston v, Garrison, 152 Tex. 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 ~license expires durinu a Section 22 procedure,.th.e,Department is 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 TIM:me:sd APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman L. P. Lollar Leonard Passmore Joe Allen Osborn James Daniel McKeithan Tom I. McFarling REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert