Could Texas require out-of-state and Mexican motorists driving in Texas to carry liability insurance meeting Texas standards?

Texas AG Opinion JM-826: Liability Insurance for Visiting Motorists

Plain-English summary

A Texas House committee chairman asked whether the state could require nonresident drivers, including motorists from Mexico, to comply with the Texas Motor Vehicle Safety-Responsibility Act's liability-coverage requirements.

A 1987 amendment removed a general exemption for vehicles both registered to and operated by nonresidents. After the change, most vehicles driven into or through Texas had to satisfy the same financial-responsibility rules as vehicles operated by Texas residents.

The Attorney General recognized that the rule could increase the cost of interstate and foreign travel and might deter some visitors. It nevertheless concluded that the requirement was a legitimate, nondiscriminatory exercise of Texas's police power over highway safety.

States could regulate all traffic using their highways when the rule served a genuine local safety purpose, applied alike to interstate and intrastate vehicles, and was not a pretext for protecting local economic interests. JM-826 found no federal statute or treaty that preempted state automobile-insurance requirements at that time.

The opinion did not say every possible enforcement detail was immune from challenge. Commerce Clause balancing remained sensitive to the facts, and a regulation could fail if its burden on commerce was excessive compared with an illusory safety benefit. The opinion found it extremely unlikely that the uniform minimum-liability requirement itself would be held unconstitutional.

Currency note

This opinion was issued in 1987 under former V.T.C.S. article 6701h. Texas vehicle-insurance statutes, international coverage practices, enforcement rules, and federal or treaty law may have changed. Treat this page as historical context, not current insurance or travel advice. Drivers should verify current Texas financial-responsibility requirements and whether their policy is valid in Texas before operating a vehicle in the state.

Common questions

Did the rule apply to tourists making only a short trip into Texas?

Yes. JM-826 described the amendment as reaching resident and nonresident vehicles whenever they were operated in Texas, subject to the Act's exceptions.

Did the opinion treat the rule as an immigration restriction?

No. A footnote said the financial-responsibility law could not reasonably be viewed as a Texas attempt to regulate immigration, which belonged to the federal government.

Why was the rule not an unconstitutional burden on commerce?

It applied without discrimination and served a local highway-safety purpose: requiring drivers to be financially responsible for damage they might cause.

Could federal law override the Texas requirement?

Yes. The opinion acknowledged that Congress could preempt the state rule. Its conclusion rested on finding no federal statute or treaty that then preempted state-mandated automobile insurance.

Did Texas have to exempt foreign vehicles because coverage could be expensive?

No. The opinion accepted that compliance could cost money and affect travel but treated those effects as incidental burdens of a generally applicable safety rule.

Could a particular implementation still be challenged?

Yes. JM-826 noted that Commerce Clause analysis can depend on the facts and that a local rule may fail if its burden is extreme and its safety contribution is weak.

Background and statutory framework

Former article 6701h generally prohibited operating covered vehicles without evidence of financial responsibility sufficient to protect against potential losses arising from vehicle operation. Before the 1987 amendment, vehicles registered to and operated by nonresidents generally were exempt unless primarily operated in Texas.

The Commerce Clause gives Congress authority over interstate and foreign commerce and restricts discriminatory or excessively burdensome state regulation. JM-826 relied on U.S. Supreme Court decisions recognizing that highway regulation is a strongly local concern and that uniform safety rules may affect interstate traffic without becoming unconstitutional.

The opinion also distinguished a prior Texas Attorney General opinion holding a post-accident impoundment procedure unconstitutional on due-process grounds. A valid Commerce Clause purpose did not excuse violations of other constitutional protections.

Citations

Constitution, statute, and legislation:

• United States Constitution article I, section 8, clause 3
• V.T.C.S. article 6701h, including section 1A
• Acts 1987, 70th Legislature, chapter 289, section 1, at 3252
• Acts 1951, 52nd Legislature, chapter 498, at 1210

Cases:

• Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)
• South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177 (1938)
• Buck v. California, 343 U.S. 99 (1952)

Prior Attorney General opinion referenced: JM-546 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-826
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0826.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

November 23, 1987

Honorable Juan J. Hinojosa
Chairman
Criminal Jurisprudence Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-826

Re: Constitutionality of statute requiring out-of-state motorists, including aliens, to comply with Texas liability coverage requirement (RQ-1271)

Dear Representative Hinojosa:

You ask about the constitutionality of a recent amendment to the Texas Motor Vehicle Safety-Responsibility Act, article 6701h, V.T.C.S. The Safety-Responsibility Act, among other things, generally forbids the operation of most motor vehicles in Texas unless an automobile liability insurance policy, in a certain minimum amount, is available to "provide evidence of financial responsibility . . . to insure against potential losses which may arise out of the operation of that vehicle." V.T.C.S. art. 6701h, § 1A.

Prior to a recent amendment to the Safety-Responsibility Law, see Acts 1987, 70th Legislature, chapter 289, section 1, at page 3252, vehicles that were both registered to and operated by non-resident drivers (unless primarily operated in Texas) were exempt from the general requirement that adequate automobile liability insurance be maintained in order to operate the vehicle in Texas. Id. Now, vehicles operated by both residents and non-residents alike must be covered by liability insurance, or otherwise satisfy the requirements of the Safety-Responsibility Act, whenever they are operated in Texas. Thus, any vehicle, with only a few exceptions, driven into, or through, Texas is subject to the strictures of the Safety-Responsibility Act. Again, in most cases, this means vehicles registered to and operated by non-residents in Texas must be covered by adequate automobile liability insurance policies.

You are concerned that the removal of the general exemption from the mandatory liability insurance requirement for vehicles operated in Texas by non-residents may be an impermissible burden on foreign or interstate commerce, and thus violate the United States Constitution. U.S. Const. art. I, § 8, cl. 3. You note that removal of the exemption from the requirements of the Safety-Responsibility Act for non-resident operators will require operators driving vehicles into or through Texas, even on the most casual basis, such as tourists on a brief excursion into the state from a neighboring state or from Mexico,[1] to have automobile liability insurance of the kind required by the Safety-Responsibility Act. You note that the imposition of a mandatory liability insurance requirement may make it more expensive for interstate and foreign commerce to move into and through Texas. We can, in fact assume that some non-residents will refrain from entering into Texas to engage in interstate or foreign commerce, because they are either unable or unwilling to obtain the necessary automobile liability insurance.[2] In short, enforcement of the Safety-Responsibility Act will burden interstate and foreign commerce to some as yet unforeseen degree.

However, the application of the Safety-Responsibility Act to all vehicles operated on the highways of Texas, whether by a resident or a non-resident, cannot be considered to be an unconstitutional burden on foreign and interstate commerce. We are confident that the amendment requiring non-resident motorists to comply with the Act is a legitimate exercise of the state's police power, even though the application of the law to non-resident motorists may affect the flow of interstate and foreign commerce into or through the state.

[1] We do not believe that the Safety-Responsibility Act reasonably can be conceived as an attempt by Texas to regulate immigration from a foreign country, a power which belongs exclusively to the federal government. Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909).

[2] We understand that the State Board of Insurance is readying plans to assure that liability insurance, on a short-term basis, will be available at affordable rates for visitors.

The operation of a motor vehicle on the highways of Texas is a privilege subject to regulation under the state's police power to protect legitimate public interests. Gillaspie v. Department of Public Safety, 259 S.W.2d 177 (Tex. 1953), cert. denied, 347 U.S. 933 (1954); Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex. 1964). See also D. C. Hall Co. v. State Highway Commission, 330 S.W.2d 904 (Tex. Civ. App. - El Paso 1959, writ ref'd n.r.e.), cert. dismissed, 364 U.S. 901 (1960). The sole purpose of the Safety-Responsibility Act is to "encourage safer use of motor vehicles on the streets and highways of Texas and to deny the privilege of driving to reckless and financially irresponsible persons." Acts 1951, 52nd Leg., ch. 498, at 1210.

So long as Congress has not acted to preempt the field, the state may enact uniform legislation necessary to protect the public, and such rules can apply to all motor vehicles operating on the state's highways, whether in interstate or intrastate commerce. Regulations affecting foreign commerce must be examined on the same grounds as those affecting interstate commerce. See, e.g., United States v. Carolene Products Co., 304 U.S. 144 (1938). The Safety-Responsibility Act is clearly designed to promote the public interest of requiring operators of vehicles on Texas highways to take responsibility for any damage they may cause. State v. United Bonding Insurance Co., 450 S.W.2d 689 (Tex. Civ. App. - Austin 1970, no writ).

The legitimate exercise of the state's police power represented by the Safety-Responsibility Act does impose a burden on interstate and foreign commerce conducted into and through Texas. The federal government, of course, may preempt the exercise of state police powers that affect interstate and foreign commerce. We are aware of neither a federal statute nor a treaty which preempts the field of state-mandated automobile insurance.[3] But in the absence of such explicit preemption, a state may impose on vehicles using its highways in interstate and foreign commerce nondiscriminatory regulations to protect the public. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959).

[3] The United States has entered into no bilateral agreements with Mexico concerning reciprocal automobile insurance or indemnity requirements. See generally United States Department of State, Treaties in Force (1987). We express no opinion concerning the applicability, if any, of the provisions of the General Agreement on Tariffs and Trade, TIAS 1700, to your concern.

A state's regulation of its highways for the safety and convenience of the public will carry with it a strong presumption of validity. Id. The exercise of the police power genuinely designed to protect a legitimate public interest in safe and convenient highway travel, so long as it is untainted by impermissible motives, such as a disguised desire to promote local economic interests at the expense of interstate and foreign commerce, see, e.g., Buck v. Kuykendall, 267 U.S. 307 (1925), appears always to be found constitutional:

Few subjects of state regulation are so peculiarly of local concern as is the use of state highways. There are few, local regulation of which are so inseparable from a substantial effect on interstate commerce. . . . The state has a primary and immediate concern in the safe and economical administration [of state highways]. [R]egulations . . . if they are to accomplish their end, must be applied alike to interstate and intrastate traffic moving in large volume over the highways. The fact that they affect alike . . . interstate and intrastate commerce . . . is a safeguard against their abuse.

South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 187 (1938).[4]

[4] Of course, the state may not violate other constitutional safeguards in pursuing efforts to protect the public welfare on the highways. See Attorney General Opinion JM-546 (1986) (post-accident impoundment provisions of section 4A of the Safety-Responsibility Act applicable to motorists not domiciled in United States unconstitutional deprivation of property without due process of law).

Stated somewhat differently, a state's police power regulation affecting interstate and foreign commerce on its highways will be found to be valid unless that regulation can be found to be either a completely irrational attempt to address a legitimate state interest, or exercised only as a pretext in pursuit of an illegitimate end. See, e.g., Southern Pacific Co. v. State of Arizona, 325 U.S. 761 (1945). Thus, a state regulation adopted for some purpose within its legitimate powers to promote the safe use of its highways will be permitted, even when the regulation has the potential for stopping the flow of motor vehicles from another state or from a foreign country, such as Mexico. Buck v. California, 343 U.S. 99 (1952) (regulations, including fee, for license on taxicabs going to and from Mexico held not to be an unconstitutional burden on foreign commerce).[5]

[5] The constitutional right to free interstate movement is subject to reasonable regulation by a state. Shapiro v. Thompson, 394 U.S. 618 (1969); see also Edwards v. California, 314 U.S. 160 (1941), Jackson, J., concurring (there is no right to interstate travel free from restrictions against causing harm to others). See generally Annot., Federal Constitutional Right of Interstate Travel - Supreme Court Cases, 27 L. Ed. 2d 862 (1970).

Of course, the balance between the constitutional values protecting the free flow of interstate and foreign commerce and the state's interest in protecting the well-being of its citizens must be determined with reference to the facts unique to each potential conflict. Bibb v. Navajo Freight Lines, Inc., supra; Southern Pacific Co. v. State of Arizona, supra. Some local regulations, which are otherwise permissible exercises of a state's police powers, may be found to be so burdensome on interstate commerce or so illusory in their true contributions to the public safety and welfare of a state that they will not be permitted to stand. The concepts of mandatory automobile liability insurance or financial responsibility laws are hardly novel ones; in fact, it may be likely that most vehicles driven into or through Texas in the course of a journey in interstate or foreign commerce are operated or owned by those which are either familiar with such concepts or from jurisdictions who have adopted such principles.[6] While we understand that the Department of Public Safety, which is responsible for administering the Safety-Responsibility Act, has not yet issued regulations which provide in detail for the application of the law to non-resident motorists or their insurers, we think it extremely unlikely that the courts will find unconstitutional the non-discriminatory requirement that all vehicles operated in the state meet the requirements imposed by Texas to protect those who use its highways from the depredations of drivers otherwise unable to compensate others for the harm they cause.

[6] We understand, for example, that evidence exists to suggest that many of those motorists from Mexico involved in accidents in Texas have liability insurance which is valid here.

SUMMARY

The Commerce Clause, United States Constitution, article I, section 8, clause 3, does not forbid Texas from requiring all vehicles using the highways of the state to comply with the mandatory liability insurance requirements of the Motor Vehicle Safety-Responsibility Act, article 6701h, V.T.C.S. The Act is a permissible exercise of the state's police powers to regulate its highways to protect the public welfare. Congress may preempt the application of the Safety-Responsibility Act to vehicles operated in interstate or foreign commerce.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General