Can Texas impound a foreign driver's car after a crash without a hearing?

Texas AG Opinion JM-546: Vehicle Impound Due Process

Plain-English summary

The head of the Texas Department of Public Safety asked whether the department could constitutionally impound cars under section 4A of the Motor Vehicle Safety Responsibility Law (article 6701h). That section applied to drivers who were not domiciled in the United States. If such a driver was in an accident that killed or injured someone or caused at least $100 in property damage and then could not show proof of financial responsibility, a magistrate would order the department to impound the car, and the department held it until a cash bond was posted, the other side signed a release, or a court certified a final liability judgment. There was no hearing on whether the driver was actually at fault. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

The AG concluded that section 4A was unconstitutional. The starting point was Bell v. Burson, in which the United States Supreme Court struck down a Georgia financial-responsibility scheme because it let the state suspend a driver's license without a prior hearing on fault, even though fault ultimately mattered to whether the license was suspended. The AG explained that noncitizens, including those unlawfully present, are entitled to Fourteenth Amendment due process, so Bell applied to the drivers covered by section 4A. Impounding a vehicle, the AG reasoned, is at least as serious as suspending a license because it directly takes tangible property that may be needed to earn a living. Section 4A, like the pre-1975 version of section 5 of the same article and like the Georgia statute in Bell, made liability an important factor (a release from the other driver could stop the impoundment) yet gave the owner no hearing on fault or liability before the car was seized. That failure meant section 4A did not provide the minimum procedural due process the Fourteenth Amendment guarantees. Because the statute already failed on due process grounds, the AG did not reach the equal protection question. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Article 6701h has since been repealed and its provisions recodified into the Transportation Code. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Could Texas impound a noncitizen driver's car after an accident without a hearing?

The AG said no. It concluded that section 4A of article 6701h, which allowed impoundment of a nondomiciliary's vehicle without a prior hearing on fault or liability, failed to meet the minimum procedural due process required by the Fourteenth Amendment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Do noncitizens get constitutional due process in Texas?

Yes. The AG noted the Supreme Court has long held that aliens, even those whose presence is deemed unlawful, are entitled to the due process of law guaranteed by the Fourteenth Amendment, citing Plyler v. Doe and Shaughnessy v. Mezei, so the protections recognized in Bell v. Burson applied to the drivers covered by section 4A. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Why did impounding a car raise the same problem as suspending a license?

Because the same due process concerns applied, and impoundment was if anything more onerous. The AG explained that Bell v. Burson turned on the state taking away an important interest without a fault hearing; impounding a vehicle directly affects tangible personal property that may be essential to earning a living, so the reasoning of Bell carried over to section 4A. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Had Texas already fixed this for regular drivers?

Yes, for license suspensions. The AG pointed out that after Bell v. Burson the legislature amended section 5 of article 6701h in 1975 to add a hearing on liability, but it never amended section 4A to add a comparable hearing before impoundment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Background and statutory framework

The Motor Vehicle Safety Responsibility Law (article 6701h) requires vehicle owners and operators to answer financially for injuries and property damage from accidents in Texas, in part by requiring them to post security for damages pending a final determination of negligence and liability (Oliveira v. Texas Department of Public Safety). Section 5 governs suspension of licenses and registrations; section 4A, aimed at operators not domiciled in the United States, directed a magistrate to order impoundment of the vehicle when such a driver could not show proof of financial responsibility after a qualifying accident. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

The controlling authority was Bell v. Burson, where the United States Supreme Court held that once a financial-responsibility scheme makes liability an important factor in depriving someone of a license, the state may not, consistently with due process, eliminate consideration of fault from the prior hearing. The AG traced Texas's own history under the statute: before Bell, Texas courts had treated fault as irrelevant and allowed a blameless owner to be required to post security before fault was determined (Texas Department of Public Safety v. Gillaspie), and the legislature responded to Bell by amending section 5 in 1975 to add a liability hearing, while leaving section 4A unchanged. Because a release from the other party could prevent or end an impoundment, liability was an important factor under section 4A too, yet section 4A gave no prior fault hearing. The AG therefore found the section defective under the due process analysis of Bell v. Burson (and the related principles of Goldberg v. Kelly), and declined to reach equal protection. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Constitutional and statutory provisions:

• U.S. Const. amend. XIV, § 1
• V.T.C.S. art. 6701h, §§ 4A, 5 (Texas Motor Vehicle Safety Responsibility Law)
• Acts 1971, 62nd Leg., ch. 944, § 3; Acts 1975, 64th Leg., ch. 347, § 1; S.B. No. 192

Cases:

• Bell v. Burson, 402 U.S. 535 (1971)
• Plyler v. Doe, 457 U.S. 202 (1982)
• Shaughnessy v. Mezei, 345 U.S. 206 (1953)
• Goldberg v. Kelly, 397 U.S. 254 (1970)
• Oliveira v. Texas Department of Public Safety, 309 S.W.2d 557 (Tex. Civ. App. - Dallas 1958)
• Texas Department of Public Safety v. Gillaspie, 254 S.W.2d 180 (Tex. Civ. App. - San Antonio 1952), aff'd, 259 S.W.2d 177 (Tex. 1953)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0546
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0546.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

September 17, 1986

Colonel James B. Adams
Director
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773

Opinion No. JM-546

Re: Whether the Texas Department of Public Safety may impound a vehicle under section 4A of article 6701h, V.T.C.S.

Dear Colonel Adams:

You question the constitutionality of section 4A of article 6701h, V.T.C.S., the Texas Motor Vehicle Safety Responsibility Law. You ask whether the Texas Department of Public Safety may, acting pursuant to section 4A, impound certain motor vehicles without violating the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. If the department may constitutionally take such action, you also ask about the proper procedure for storing and eventually disposing of impounded vehicles.

Section 4A provides:

(a) Any motor vehicle operator who is not domiciled within the United States and who operates a vehicle which is in any manner involved in an accident within the State of Texas in which any person is killed or injured or in which damage to the property of any one person, not including himself, to an apparent extent of at least One Hundred Dollars ($100) is sustained shall be taken immediately before a magistrate and there shall present proof of financial responsibility.

(b) If a person does not present proof of financial responsibility in accordance with Subsection (a), the magistrate shall enter an order directing the Department to impound the vehicle operated by the foreign domiciliary. The Department shall hold the vehicle until:

(1) a cash bond, in an amount to be determined by the magistrate, has been posted with the Department;

(2) a release has been executed by the other party or parties to the accident and the release is filed with the Department; or

(3) the Department receives certification of the entry of a final judgment of liability 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 advances this purpose is to require owners and operators to provide security for damages pending a final determination of the questions of negligence and liability. See art. 6701h. 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 to present proof of financial responsibility in accordance with subsection (a) of section 4A. See § 4A(b).

You note that in Bell v. Burson, 402 U.S. 535 (1971), the United 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 United 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 country is deemed unlawful, are entitled to the due process of law guaranteed by the Fourteenth Amendment. Plyler v. Doe, 457 U.S. 202 (1982); Shaughnessy v. Mezei, 345 U.S. 206 (1953). Accordingly, the decision in Bell v. Burson applies to nondomiciliary motor vehicle operators who fall within section 4A of article 6701h.

In Bell v. Burson, the Supreme Court considered the constitutionality of a Georgia statute that required motorists involved in accidents to post security under penalty of loss of their drivers' licenses. The due process 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, § 1. This constitutional restraint also limits state power to terminate an entitlement, whether it is styled a property "right" or a mere "privilege." 402 U.S. at 539; see Goldberg v. Kelly, 397 U.S. 254 (1970). Recognizing that the suspension 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 notice and an opportunity for a hearing appropriate to the nature of the case. Bell v. Burson, 402 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. Burson turned on whether the state must provide a hearing which includes consideration of the question of the motorist's fault or liability prior 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 analysis of the statutory scheme, the determination of liability played a crucial role as to whether a motorist's license was actually suspended. Id. For example, a release executed by the injured party or parties would prevent license suspension. Id. For these reasons, the court held that

[o]nce the statutory scheme makes liability an important factor in the State's determination to deprive an individual of his licenses, the State may not, consistently 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 this statutory scheme.

One of the primary purposes for the enactment of article 6701h was to require owners and operators of motor vehicles to provide security for damages pending determination of the issues of negligence and liability. Oliveira v. Texas Department of Public Safety, 309 S.W.2d 557, 560 (Tex. Civ. App. - 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 and 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. Accordingly, the Texas Legislature's response to Bell v. Burson, i.e., by amending section 5, is significant to an understanding 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 decision in 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, § 3, at 2860. The Texas courts stated that fault or liability under this version of article 6701h was irrelevant; a blameless motor vehicle owner or operator could be required to furnish security for damages resulting from an accident before fault was determined. Texas 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 (1954). 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 § 6(b). In 1975, the Texas Legislature amended section 5 of article 6701h 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, § 1, at 931; see also Bill Analysis to S.B. No. 192. The legislature, however, did not amend section 4A to provide for a hearing on the issue of liability.

Although section 4A deals with impounding vehicles as security rather than with suspending drivers' licenses and vehicle registrations, similar due process considerations apply. The Supreme Court in Bell v. Burson determined that due process requirements applied because the suspension of issued licenses involves state action that adjudicates important interests 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, which may be essential to the pursuit of a livelihood. Consequently, the due process considerations discussed in Bell v. Burson apply to section 4A of article 6701h.

Section 4A is similar to the pre-1975 version of section 5 and to the Georgia provision declared unconstitutional in Bell v. Burson. Section 4A does not require a hearing on the issue of fault or liability prior to the impounding of a vehicle; it authorizes impoundment 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 property 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 of fault or liability for the injuries or damage caused prior to the 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 other 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 procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution. Because section 4A suffers fatal defects under a due process analysis, examination of section 4A under the equal protection analysis which you suggest is unnecessary at this time.

SUMMARY

Because section 4A of article 6701h does not provide for a hearing on the issue of fault or liability for a motor vehicle accident involving a nondomiciliary motor vehicle operator prior to the impoundment of the nondomiciliary's vehicle, section 4A fails to comply with the minimum procedural due process requirements of the Fourteenth Amendment to the United States Constitution.

Very truly yours,

Jim Mattox
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General