The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable David G. Lewis opinion No. MN-577
Supreme Court Building
Sherman County Attorney
P. 0. BOX 12546
Austin. TX. 76711. 2546
P. 0. Box 986 Re: Enforcement of the com-
5121475.2501 Stratford, Texas 79084 pulsory liability insurance
Telex 9101674-1367 provisions of article 6701h,
Telecopier 512/475-0266 V.T.C.S.
1607 Main St.. Suite 1400
Dear Mr. Lewis:
Dallas. TX. 75201.4709
2141742-6944 You have posed questions about sections 1A through 1G of article
6701h, V.T.C.S., new provisions of the Safety Responsibility Law which
4624 Alberta Ave., Suite 160
were enacted by the legislature in 1981. See Acts 1981, 67th Leg.,
EI paso. TX. 79905.2783
ch. 800, at 3053. In pertinent part, your letter reads:
915,533.3464
My specific questions are:
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6866
(1) Does article 6701h, section 1B. V.T.C.S..
7131650.0666 require that evidence of financial
responsibility, via... automobile liability
insurance, be in the possession of an
606 Broadway, Suite 312 owner/operator of a vehicle while operating
Lubbock, TX. 79401-3479
606/747~i238
that vehicle upon public roads and highways ii
the state of Texas?
4309 N. Tenth. Suite B (7.1 upon subsequent proof at trial of
McAllen. TX. 76501-1665 financial responsibility by an owner/operator
5121662-4547
of a vehicle, is the presumption created in
article 6701h, section ID, V.T.C.S., rebutted?
200 Main Plaza, Suite 400
San Antonio, TX. 76205-2797 In answer to your first inquiry, we observe that section 1B does
512,225.4181 not require the owner or operator of a vehicle to furnish evidence of
financial responsibility upon request; it requires only that
An Equal OpportunitYI "information concerning evidence" be furnished.
Affirmative Action Employer
Section 1B of the act reads:
On and after January 1, 1982, every owner
and/or operator in the State of Texas shall be
required, as a condition of driving, to furnish,
upon request, information concerning evidence of
financial responsibility to a law enforcement
p. 2133
- -
Honorable David G. Lewis - Page 2 (FwIw-577)
officer of the State of Texas or any subdivision
thereof, or agent of the Department, or to another
person involved in an accident.
Thus, section 1B does not require that evidence of financial
responsibility, such as an insurance policy or a card from the
insurance company confirming coverage, must be in the possession of an
owner or operator of a vehicle at the time and place the vehicle is
being operated. Assuming without deciding that proof of financial
responsibility can be satisfied only by a liability insurance policy,
the statutory provision is satisfied if the owner or operator
furnishes adequate information about the evidence of his financial
responsibility when requested to do so, wherever the evidence itself
might be physically located. See Attorney General Opinion MW-467
(1982) (no particular type of evidence required). We answer your
first question in the negative.
Section D is of relevance to your second question; section 1D of
the statute reads:
Failure to give information as required in
Section lB, or the giving of information which is
false, will raise a rebuttable presumption of
failure to maintain financial responsibility.
Section 2.05 of the Penal Code governs the evidentiary effect of
statutory presumptions. The provision, which only covers the
operation of statutory presumptions as rules of evidence in criminal
trials, see 1 R. Ray, Texas Law of Evidence §58 (Texas Practice 3d ed.
1980), and does not restrict the use of statutory presumptions for
other purposes, reads in part:
When this code or another penal law establishes
a presumption with respect to any fact, it has the
following consequences:
(1) if there is sufficient evidence of the
facts that give rise to the presumption, the
issue of the existence of the presumed fact
must be submitted to the jury, unless the court
is satisfied that the evidence as a whole
clearly precludes a finding beyond a reasonable
doubt of the presumed fact; and
(2) if the existence of the presumed fact is
submitted to the jury, the court shall charge
the jury, in terms of the presumption and the
specific element to which it applies....
(Emphasis added).
p. 2134
. -
Honorable David G. Lewis - Page 3 (MW-577)
We first note that the constitutions of this state and of the
United States require that all persons be presumed innocent, and that
no person may be convicted of an offense unless each element of the
offense is proved beyond a reasonable doubt. U.S. Const. amends. V,
XIV; Tex. Const. art. I, 019; Mullaney v. Wilbur, 421 U.S. 684 (1975);
In re Winship, 397 U.S. 358 (1970); Cracker v. State, 573 S.W.2d 190
(Tex. Grim. App. 1978). See also Penal Code 52.01; Code Grim. Proc.
art. 38.03. We need not consider here, however, whether the Safety
Responsibility Law provision at issue establishes a valid rule of
evidence for a criminal trial. See Skinner v. State, No.
Ol-81-0672-CR (Tex. Civ. App. - Houston [lst Dist.] Aug. 12, 1982,
Rev. pet. pending) (not yet reported). In any case, upon proof that
the defendant was adequately insured or was otherwise financially
responsible at the time of the alleged offense the presumption would
stand rebutted. The evidence as a whole would clearly preclude a
finding that the "presumed" fact existed beyond a reasonable doubt
based on the presumption. It would then be error, we believe, to
charge the jury in terms of the presumption.
The "presumed fact" in such a situation is the failure of the
defendant at the time of the alleged offense to "maintain financial
responsibility." Failure to carry, produce, or furnish information
concerning evidence of financial responsibility is -not a crime or
offense under the act.
SUMMARY
Article 6701h, section 1B. V.T.C.S., does not
require that evidence of financial responsibility
be in the possession of an owner or operator of a
vehicle while it is being operated upon public
roads and highways; proof that the defendant
maintained financial responsibility at the time of
the alleged offense rebuts any presumption the
statute might create. The failure to carry,
produce, or furnish information concerning
evidence of financial responsibility is not a
crime or offense under the new provisions of the
Safety Responsibility Law.
Very truly yours,
M A R-K W HI T E
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 2135
. .
Honorable David G. Lewis - Page 4 (Mw-577)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 2136