Can Texas DPS ask on a driver's license renewal whether you've had a problem with alcohol or drugs?

Plain-English summary

The Texas Department of Public Safety added a question to its driver's license renewal form: had the applicant ever "had a problem, been arrested or hospitalized as a direct result of alcohol or drug abuse" within the past year (for a Class C license) or two years (for a Class A or B license)? A member of the House Committee on Criminal Jurisprudence asked whether that question was legal, raising the Fifth and Fourteenth Amendments of the U.S. Constitution.

The Attorney General did not decide the constitutional questions. Instead, the opinion concluded that the question was an unreasonable use of the department's powers under the state driver's license statute (article 6687b), so it exceeded the department's authority and was invalid. The department pointed to provisions that bar issuing a license to someone addicted to alcohol or drugs to the point of being unable to drive, or who cannot safely operate a vehicle, and to its power to gather information needed to judge an applicant's competency and eligibility, with help from a Medical Advisory Board. But the opinion found that asking whether a person "had a problem" with alcohol or drugs was too vague to do that job. Even an honest answer would be so subjective as to be nearly useless in deciding whether someone is actually addicted or unsafe behind the wheel. Worse, anyone who really did have a problem had an obvious reason to shade the truth, since a candid answer could cost them their license, which made the answers unreliable.

The opinion also weighed the question's intrusiveness. A person's health and medical history generally falls within constitutional privacy protections, and courts demand more than a bare rational basis before the government may pry into such matters, even when it promises to keep the information confidential. Given the vagueness of the question, its doubtful usefulness, and the privacy interests it touched, the Attorney General concluded the department's use of the question, as written, was unreasonable and therefore invalid.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas driver's license statute discussed here (former V.T.C.S. article 6687b) has since been recodified into the Transportation Code, and the constitutional privacy landscape the opinion surveyed has changed (for example, the Texas case the opinion cited as pending, State v. Morales, was later reversed by the Texas Supreme Court, and the U.S. Supreme Court's law on related privacy questions has since developed). Confirm current law before relying on anything described here.

Background and statutory framework

The opinion measured the renewal question against the department's authority under V.T.C.S. article 6687b. Section 4 directs the department not to issue a license to any person "shown to be addicted to the use of alcohol or a controlled substance or other drugs that render a person incapable of driving," and other parts of section 4 bar issuing a license when the department believes the person cannot safely operate a motor vehicle. Section 6 lists the information the department may obtain on an application, including "other information as the Department may require to determine the applicant's identity, competency and eligibility," and provides that an applicant's medical history supplied to the department or the Medical Advisory Board is confidential and may not be divulged or used as evidence except in a proceeding to cancel, suspend, or revoke a license. The Medical Advisory Board, established under section 21A, assists the department in deciding whether an applicant can safely drive, and the department said the question conformed to the Board's guidelines.

The governing legal standard was that an agency's actions must be reasonable and within its statutory authority (Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73 (Tex. 1939)). The Attorney General concluded the renewal question did not reasonably serve the statutory purposes the department invoked. Asking whether an applicant had "had a problem" with alcohol or drug abuse was so subjective as to be virtually useless in evaluating whether the applicant was in fact "addicted" under section 4, or could safely operate a vehicle. And the unreliability of the responses would be compounded by the obvious disincentive for applicants who had actually had a problem to answer truthfully, since a truthful answer would threaten their driving privileges.

The opinion then considered the question's sensitivity and intrusiveness in light of constitutional privacy concerns, while declining to fully decide them. A person's health and medical history generally falls within federal constitutional privacy protections, and those concerns are implicated even when the government provides for confidentiality. Whalen v. Roe, 429 U.S. 589, 600-01 (1977). The Fifth Circuit had used a balancing test of the individual's and the state's interests, under which "more than mere rationality must be demonstrated" to justify a state intrusion. Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981) (citing Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979)). Whether the intrusion was narrowly tailored to serve the state's interest would presumably be given weight. Because of the vagueness of the question, its highly questionable efficacy in furthering the department's authorized purposes, and the constitutionally protected interests it implicated, the Attorney General concluded the department's use of the question as written was unreasonable and invalid.

Common questions

Could DPS ask whether you had ever "had a problem" with alcohol or drugs?
The opinion concluded no, as written. It found the question an unreasonable exercise of the department's powers under article 6687b, so it exceeded the department's statutory authority and was invalid.

Did the Attorney General rule the question unconstitutional?
No. The opinion expressly declined to fully reach the Fifth and Fourteenth Amendment issues, deciding the question on statutory grounds instead, though it did weigh constitutional privacy concerns in assessing whether the question was reasonable.

Why was the wording the problem?
The opinion found that asking whether someone "had a problem" was too subjective to tell the department whether a driver was actually addicted or unsafe, and that people who had genuinely had a problem had a strong reason not to answer honestly, which made the answers unreliable.

Did privacy concerns play a role?
Yes. The opinion noted that medical history generally falls within constitutional privacy protections and that courts require more than a bare rational basis for such intrusions, even with confidentiality safeguards. That weighed against treating the question as a reasonable use of the department's authority.

Citations

• V.T.C.S. article 6687b, §§ 4, 6, 21A
• U.S. Const. amends. V, XIV
• Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73 (Tex. 1939)
• Whalen v. Roe, 429 U.S. 589 (1977)
• Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981)
• Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979)
• Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989)
• Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987)
• Texas State Employees Union v. Texas Dept. of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0176
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0176.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

October 22, 1992

Honorable Parker McCullough
Chairman
Committee on Criminal Jurisprudence
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-176

Re: Whether a question on a driver's license renewal form inquiring as to whether the applicant has had problems with alcohol or drug abuse is valid (RQ-90)

Dear Representative McCullough:

Your predecessor requested an opinion regarding a question on a new Texas Department of Public Safety (the "department") form for the renewal of a driver's license which he stated provides as follows:

Have you ever had a problem, been arrested or hospitalized as a direct result of alcohol or drug abuse within the past: [ ] one year if applying for Class C License? [ ] two years if applying for Class A or Class B License?

He asked whether the renewal form question violates the fifth or fourteenth amendment of the United States Constitution. We do not think it necessary here to fully reach the constitutional issues raised because we conclude that the question on the renewal form is an unreasonable exercise of the department's powers under the applicable state statutes. In our opinion, the renewal form question thus exceeds the department's statutory authority and is consequently invalid. See, e.g., Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73 (Tex. 1939) (agency actions must be reasonable and within statutory authority).

In a brief submitted to this office, the department asserts that it is required to ask renewal applicants about possible alcohol or drug abuse by the provisions of article 6687b, V.T.C.S. Section 4 of that article provides that the department shall not issue any license to "any person who is shown to be addicted to the use of alcohol or a controlled substance or other drugs that render a person incapable of driving." V.T.C.S. art. 6687b, § 4(4). Other provisions of section 4 direct the department not to issue a license to a person when the department believes that the person cannot safely operate a motor vehicle. See id. § 4(7), (8). Section 6, in setting forth the information which the department is authorized to obtain on applications for an original or renewal driver's license, includes therein "other information as the Department may require to determine the applicant's identity, competency and eligibility." Id. § 6(b).

The department is assisted in determining whether an applicant is capable of safely operating a motor vehicle by a Medical Advisory Board established pursuant to article 6687b, section 21A, V.T.C.S. The department contends that the question at issue conforms with the Medical Advisory Board's guidelines for determining driver limitations. We note, too, that section 6 of the article provides that "[i]nformation about the medical history of an applicant supplied to the Department or a Medical Advisory Board is for the confidential use of the Department or the Board and may not be divulged to any person or used as evidence in a legal proceeding except a proceeding [to cancel, suspend or revoke a license]." Id.; see also id. § 21A(c)(1), (2).

The renewal form question, as written, does not, in our opinion, reasonably serve the purposes of the statutory provisions the department invokes as authorization for such a question. For instance, even an attempted truthful response to the question whether the applicant has "had a problem" with alcohol or drug abuse would, we believe, be so subjective as to be virtually useless in the department's evaluation of whether the applicant is in fact "addicted" to alcohol or drugs under section 4(4) supra, or whether the person can safely operate a motor vehicle under section 4(7) or (8). Moreover, the unreliability of such responses would, we think, be grossly compounded by the obvious disincentive for respondents who have in fact had something that could be characterized as a "problem" with drugs or alcohol even to attempt to respond to the question truthfully. Those applicants would certainly be aware that such a response would threaten their retaining of their driving privileges.

While, again, we do not think it necessary here to fully reach the constitutional issues raised with respect to the renewal form question, in considering whether the question is a reasonable exercise of the department's authority under the applicable statutes we bear in mind the sensitiveness and intrusiveness of such question vis a vis constitutional privacy concerns. One's health and medical history generally falls within the scope of federal constitutional privacy protections. Whalen v. Roe, 429 U.S. 589, 600-01 (1977). Constitutional privacy concerns are implicated even where, as here, the government has provided for maintaining the confidentiality of the private matters of which it seeks disclosure. Id. The United States Court of Appeals for the Fifth Circuit has utilized a balancing test of the respective interests of the individual and the state in order to assess the state's right to thus encroach in such areas. Under such a test, "'more than mere rationality must be demonstrated' to justify a state intrusion." Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981) (citing Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979)). Presumably, whether the challenged state intrusion was narrowly tailored to serve the state's interest would be given weight in a court's arriving at a determination.[1]

Because of the vagueness of the renewal form question and its highly questionable efficacy in furthering the authorized purposes of the department, and particularly in view of the constitutionally protected interests which that question implicates, we conclude that the department's utilization of the question as written is unreasonable and hence invalid.

[1] We note that the federal appellate courts appear to be divided over the proper standard to be applied where the right to privacy is invoked to protect confidentiality. See Shields v. Burge, 874 F.2d 1201, 1210-11 (7th Cir. 1989) (citing conflicting cases); Borucki v. Ryan, 827 F.2d 836, 845-48 (1st Cir. 1987) (same). We note in addition, however, that Texas courts may conclude in some instances that privacy rights guaranteed under the Texas Constitution are broader than analogous rights guaranteed under the federal constitution. See, e.g., Texas State Employees Union v. Texas Dep't of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987) (implying that the right to privacy under the Texas Constitution may be broader than the right to privacy under the United States Constitution and expressly adopting as an element of the state test whether less intrusive means were available to serve the state's interest in encroaching on private matters); see also State v. Morales, (Tex. App.—Austin 1992, writ granted) (holding that the right to privacy under the Texas Constitution extends to private, consensual, adult homosexual conduct).

SUMMARY

A question used by the Department of Public Safety on the driver's license renewal form, which asks, inter alia, whether the applicant had had a "problem" with alcohol or drug abuse, is unreasonable and therefore invalid.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General