General Notes on Failure to Maintain Financial Responsibility

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Okay, the ‘hyper down-and-dirty’ version of this issue is this. State law does NOT authorize the stopping, detaining, arresting or impounding of persons or cars for lack of registration, a driver’s license, or for lack of proof of/actual financial responsibility. The “Registration” chapter is Chapter 502, the “Driver’s License” chapter is Chapter 521, and the “Financial Responsibility Act” is codified in Texas “Transportation” Code Chapter 601.

The statutory authority for ANY “authorized” officer to make a WARRANTLESS arrest relating to a “transportation” ‘offense’ is found in Sec. 543.001, “Transportation” Code. The warrantless arrest power given is specially and specifically limited by Sec. 543.001 to ONLY those offenses specifically codified “in this subtitle,” meaning Subtitle C of the “Transportation” Code. When you look, you can easily see that Subtitle C encompasses “Transportation” Code Chapters 541 – 600 inclusive. Everything in Subtitle C, other than Chapter 548 Compulsory Inspections, are either moving or mechanical ‘offenses.’

Notice that the “Registration,” “Driver’s License,” AND “Financial Responsibility Act” chapters ALL fall OUTSIDE of the aforementioned chapters legislatively authorizing warrantless arrest.

The prosecutor and/or the judge WILL try to argue that the officer IS authorized to perform a warrantless arrest for such ‘offenses’ under the provisions of Art. 14.01(b), Texas Code of Criminal Procedure.  The problem with that assertion and foundational argument is that it runs head-first into the judicial rules of statutory construction that the courts themselves have developed.

One of the primary points of these rules is this, where a statute within a particular code creates a local and specific element or condition to some subject matter controlled by that code, that code’s local provision supersedes and controls over ANY general statute dealing with the same subject matter, unless the local provision specifically states that the general provision will control.

Well, Art. 14.01(b) of the Code of Criminal Procedure IS a general statute, while the provisions of Sec. 543.001 are local and specific to the “Transportation” Code and makes no mention of Art. 14.01 as being controlling in that instance. Therefore, the rules of statutory construction automatically limit the applicability of any law enforcement officer’s GENERAL authorization to make warrantless arrests under Art. 14.01(b) to those ‘offenses’ that are NOT related to the Texas “Transportation” code.

In this particular case, the “same subject matter” IS the statutory authority to perform a warrantless arrest for an ‘offense’ allegedly committed in the arresting officer’s “presence or view.” Therefore, the argument is that that “Transportation” Code’s local and specific provision controls over the Code of Criminal Procedure’s general provision in this instance, limiting the officer’s power of warrantless arrest to ONLY those ‘offenses’ found in Subtitle C of same.

This would tend to work the same way with the towing thing.  No authorization exists in statute to tow the car, just as there exists no authorization to perform a “transportation” stop in relation to a license plate scan or computer retrieval that comes back saying “no insurance.” This ALSO becomes an issue because, under Texas case law, the information that comes back to the officers on their cruiser computer is HEARSAY in a court of law, and it is INADMISSIBLE if properly challenged. Therefore, the computer information alone CANNOT be the basis for a seizure any more than it can be for a warrantless arrest. The city is deemed to know and understand this fact, and is opening themselves up to a major law suit for doing it in the first place.

Finally, there is the issue of Sec. 601.053, “Transportation” Code, in relation to the ‘offense’ of “Failure to Maintain Financial Responsibility,” and that is that it’s completely repugnant to the right of due process, making it UNCONSTITUTIONAL.  The statute does three very unlawful things in relation to the right of due process. It unlawfully requires production of potentially incriminating information to an officer, it reverses the burden of proof, taking it from the shoulders of the State and shifting it to the back of the accused, and it makes a presumption of guilt over innocence if the accused fails to provide actual evidence that s/he is NOT guilty.  Consider the language it uses by reading just the underlined parts of the statute:

Sec. 601.053.  EVIDENCE OF FINANCIAL RESPONSIBILITY. 

(a)  As a condition of operating in this state a motor vehicle to which Section 601.051 applies, the operator of the vehicle on request shall provide to a peace officer, as defined by Article 2.12, Code of Criminal Procedure, or a person involved in an accident with the operator evidence of financial responsibility by exhibiting:

(b)  Except as provided by Subsection (c), an operator who does not exhibit evidence of financial responsibility under Subsection (a) is presumed to have operated the vehicle in violation of Section 601.051.

(c)  Subsection (b) does not apply if the peace officer determines through use of the verification program established under Subchapter N that financial responsibility has been established for the vehicle.  If a peace officer has access to the verification program, the officer may not issue a citation for a violation of Section 601.051 unless the officer attempts to verify through the program that financial responsibility has been established for the vehicle and is unable to make that verification.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.  Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 18.06, eff. Sept. 1, 1997.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 15A.01, eff. September 1, 2009.

Acts 2013, 83rd Leg., R.S., Ch. 153 (S.B. 181), Sec. 1, eff. May 24, 2013.

Subsections (a) and (b) are responsible for the primary and readily evident due process violations previously mentioned. And you can see that subsection (c) also has issues with violating due process through lack of probable cause, as it does not take into consideration the possibility of the system not having accurate and up-to-date information, even if the officer does have access and gets back bad info, which they very often do. Nor does it make any exception that denies the officer the ability to issue a citation if s/he does NOT have access to the verification system.

This act and its related statutes are just constitutionally reprehensible all the way-round in the denying and destroying of due process and probable cause, along with the rights of the accused to both, by its blatant attempt to ignore or destroy them altogether.

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