Who issues the final decision in Texas motor vehicle dealer cases, the DMV Board or the division director?

Plain-English summary

In 2009 the Legislature created the Texas Department of Motor Vehicles and moved a set of regulatory powers from the Department of Transportation to the new TxDMV Board. The Board's chairman asked the Attorney General to sort out three practical questions about how the new agency runs its cases: who signs the final order, whether the Board can hand that job to staff, and when a Board member has to step aside.

On the final-order question, the opinion drew a line down the middle of the motor-vehicle statutes. For ordinary contested cases under Occupations Code chapter 2301, which governs the sale and lease of motor vehicles, the Board issues the written final decision or order. The big exception is subchapter M, the "Lemon Law," where the statute expressly says the Motor Vehicle Division director "shall ... issue final orders," and an order the director signs counts as a final order of the Board. The opinion then carried that same answer into Transportation Code chapter 503 (which regulates dealers and manufacturers), because section 503.009 borrows the Lemon Law's hearing procedure by reference, so the director, not the Board, issues final orders in chapter 503 cases too.

On delegation, the answer was no. The opinion worked through every provision the Board pointed to and found none that lets it hand its final-order authority to the director. A 2005 amendment actually removed the old delegation language, the "routine matter" summary-procedure rule does not fit something as consequential as a final order, and an agency may delegate only ministerial tasks absent express authority. On conflicts of interest, the opinion explained that a Board member must disclose and recuse when the member has an interest in a matter or a substantial financial interest in an entity with a direct interest, but that industry representatives (whom the law requires on the Board) are not automatically disqualified. Whether a given member must step aside, and how the Chapter 572 ethics rules apply, has to be decided case by case on the facts.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The TxDMV Board (what the opinion held for it): The opinion concluded the Board issues the final order in contested cases under Occupations Code chapter 2301, except Lemon Law cases under subchapter M. It also concluded the Board has no implied authority to delegate that final-order power to the Motor Vehicle Division director or anyone else.

The Motor Vehicle Division director (what the opinion held): The opinion concluded the director issues final orders in Lemon Law cases under subchapter M and in Transportation Code chapter 503 cases, the latter because section 503.009 incorporates the Lemon Law's hearing procedure by reference.

Board members, including industry representatives (what the opinion described): The opinion described the conflict rules in Transportation Code section 1001.028 and Government Code chapter 572. A member must disclose and recuse where the member has an interest in a matter or a substantial financial interest in an entity with a direct interest, but industry representatives are not automatically barred, and each situation must be judged on its own facts.

Common questions

Does the DMV Board or the division director sign the final order in a dealer case?
The opinion concluded the Board signs it for ordinary chapter 2301 cases, while the Motor Vehicle Division director signs it for Lemon Law cases (subchapter M) and for Transportation Code chapter 503 cases.

Why does the director, not the Board, decide chapter 503 cases?
The opinion explained that section 503.009 is a reference statute: it borrows the hearing procedure of section 2301.606(a), which puts final-order authority in the director, so that authority carries over to chapter 503.

Can the Board delegate its final-order authority to staff to save time?
The opinion concluded no. It found no statute giving the Board implied authority to delegate that function, noted a 2005 amendment removed the old delegation language, and explained that an agency may delegate only ministerial tasks without express authority.

Are car-industry members of the Board barred from voting on industry disputes?
The opinion concluded they are not automatically barred. A member must disclose and recuse only where the member has an interest in the matter or a substantial financial interest in an entity with a direct interest, decided case by case.

What is the "Lemon Law" in this opinion?
The opinion uses "Lemon Law" for subchapter M of Occupations Code chapter 2301, which requires manufacturers, converters, or distributors to make a vehicle conform to their express warranties.

Background and statutory framework

The TxDMV Board was established by Transportation Code section 1001.021 and given the powers and duties in chapters 1001 through 1005. Tex. Transp. Code Ann. §§ 1001.001(1), .021 (West Supp. 2010). Chapter 2301 of the Occupations Code provides for the Motor Vehicle Division and its director, the division's chief executive officer. Tex. Occ. Code Ann. §§ 2301.001-.853 (West 2004 & Supp. 2010). Contested-case hearings under chapter 2301 are conducted by an administrative law judge of the State Office of Administrative Hearings, who issues a proposal for decision; the Board then "shall issue a written final decision or order." Id. § 2301.704(b)(8) (West Supp. 2010); id. § 2301.709(d); id. § 2301.710 (West 2004); id. § 2301.711. Because the statute's plain meaning controls, sections 2301.709(d) and 2301.710 give the Board final-order authority for chapter 2301 cases. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008).

The Lemon Law, subchapter M, is different. Sections 2301.603(a) and 2301.604(a) require manufacturers, converters, or distributors to conform a vehicle to express warranties, and section 2301.606(a) states that "[t]he director under board rules shall conduct hearings and issue final orders" for the subchapter, with the director's order considered a final order of the Board. Tex. Occ. Code Ann. §§ 2301.603(a), .604(a) (West 2004); id. § 2301.606(a). Transportation Code chapter 503, which regulates dealers and manufacturers, borrows that procedure: section 503.009(b) makes the procedures of section 2301.606(a) apply to chapter 503 hearings. Because reference statutes incorporate the law they point to, the director issues final orders in chapter 503 cases as well. Tex. Transp. Code Ann. §§ 503.001-.095 (West 2007 & Supp. 2010); id. § 503.009 (West 2007); W. Cas. & Sur. Co. v. Young, 339 S.W.2d 277, 280 (Tex. Civ. App.-Beaumont 1960, writ ref'd); Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927); In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998) (per curiam).

On delegation, the opinion found no authority for the Board to give away its final-order power. Section 2301.154 lets the director delegate the director's powers to division employees, not the Board's powers. Id. § 2301.154 (West Supp. 2010). A 2005 amendment replaced earlier language that had allowed the predecessor board to delegate, and an amendment is presumed to change the law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979). The summary-procedure provision for "routine matters" did not fit issuing a final order, which can be controversial. Tex. Transp. Code Ann. § 1003.002(a)(1), (b), (d) (West Supp. 2010); Tex. Gov't Code Ann. § 2001.058(e) (West 2008). When a statute vests a function in a specific body, only that body exercises it, and absent express authority an agency may delegate only ministerial tasks. Schade v. Tex. Workers' Comp. Comm'n, 150 S.W.3d 542, 548-49 (Tex. App.-Austin 2004, pet. denied); Lipsey v. Tex. Dep't of Health, 727 S.W.2d 61, 64 (Tex. App.-Austin 1987, writ ref'd n.r.e.); Moody v. Tex. Water Comm'n, 373 S.W.2d 793, 797 (Tex. Civ. App.-Austin 1963, writ ref'd n.r.e.); Newsom v. Adams, 451 S.W.2d 948, 953 (Tex. Civ. App.-Beaumont 1970, no writ); Tex. Att'y Gen. Op. No. GA-0434 (2006). Neither the Board's general powers in section 2301.153 nor section 1001.042 supplied that authority. Id. § 2301.153 (West 2004); Tex. Transp. Code Ann. § 1001.042 (West Supp. 2010).

On conflicts, Transportation Code section 1001.028 requires a member to disclose in writing and recuse if the member has an interest in a matter or a substantial financial interest in an entity with a direct interest, defined to include employment, office, or more than a five percent interest. Tex. Transp. Code Ann. § 1001.028(a)-(b); id. § 1001.028(c). The provision does not automatically bar industry representatives, whom section 1001.021(b) requires on the Board, and conflict questions must be resolved case by case. Id. § 1001.021(b); Tex. Att'y Gen. Op. No. GA-0557 (2007). The Board is also subject to the ethics code in Government Code chapter 572, applied case by case. Id. § 1005.001 (West Supp. 2010); Tex. Gov't Code Ann. § 572.051 (West Supp. 2010).

Citations

Statutes, rules, and session laws:

• Tex. Transp. Code Ann. §§ 1001.001(1), .021 (West Supp. 2010)
• Tex. Occ. Code Ann. § 2301.101(a) (West Supp. 2010)
• Tex. Occ. Code Ann. §§ 2301.001-.853 (West 2004 & Supp. 2010)
• Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2010)
• Tex. Occ. Code Ann. §§ 2301.701, .703 (West 2004)
• Tex. Occ. Code Ann. § 2301.704(b)(8) (West Supp. 2010)
• Tex. Occ. Code Ann. § 2301.709(d)
• Tex. Occ. Code Ann. § 2301.710 (West 2004)
• Tex. Occ. Code Ann. § 2301.711
• Tex. Occ. Code Ann. § 2301.606(a) (West 2004)
• Tex. Occ. Code Ann. §§ 2301.603(a), .604(a) (West 2004)
• Tex. Occ. Code Ann. § 2301.154 (West Supp. 2010)
• Tex. Occ. Code Ann. § 2301.153 (West 2004)
• Tex. Transp. Code Ann. §§ 503.001-.095 (West 2007 & Supp. 2010)
• Tex. Transp. Code Ann. § 503.009 (West 2007)
• Tex. Transp. Code Ann. § 503.001(1)-(2), (5) (West Supp. 2010)
• Tex. Transp. Code Ann. § 1003.002(a)(1) (West Supp. 2010)
• Tex. Transp. Code Ann. § 1003.002(b)
• Tex. Transp. Code Ann. § 1003.002(d) (West Supp. 2010)
• Tex. Gov't Code Ann. § 2001.058(e) (West 2008)
• Tex. Transp. Code Ann. § 1001.042 (West Supp. 2010)
• Tex. Transp. Code Ann. § 1001.021(b) (West Supp. 2010)
• Tex. Transp. Code Ann. § 1001.028(a)-(b) (West Supp. 2010)
• Tex. Transp. Code Ann. § 1001.028(c)
• Tex. Transp. Code Ann. § 1005.001 (West Supp. 2010)
• Tex. Gov't Code Ann. § 572.051 (West Supp. 2010)
• 43 Tex. Admin. Code § 215.21 (2010)
• Act of May 23, 2009, 81st Leg., R.S., ch. 933, § 6.01(a), 2009 Tex. Gen. Laws 2485
• Act of May 18, 1989, 71st Leg., R.S., ch. 1130, § 12, 1989 Tex. Gen. Laws 4653
• Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.05, 2005 Tex. Gen. Laws 778

Cases and opinions:

• Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008)
• W. Cas. & Sur. Co. v. Young, 339 S.W.2d 277, 280 (Tex. Civ. App.-Beaumont 1960, writ ref'd)
• Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927)
• In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998) (per curiam)
• City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979)
• Schade v. Tex. Workers' Comp. Comm'n, 150 S.W.3d 542, 548-49 (Tex. App.-Austin 2004, pet. denied)
• Lipsey v. Tex. Dep't of Health, 727 S.W.2d 61, 64 (Tex. App.-Austin 1987, writ ref'd n.r.e.)
• Moody v. Tex. Water Comm'n, 373 S.W.2d 793, 797 (Tex. Civ. App.-Austin 1963, writ ref'd n.r.e.)
• Newsom v. Adams, 451 S.W.2d 948, 953 (Tex. Civ. App.-Beaumont 1970, no writ)
• Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004)
• Comm'r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)
• Tex. Att'y Gen. Op. No. GA-0434 (2006)
• Tex. Att'y Gen. Op. No. GA-0557 (2007)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0820
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0820.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 19, 2010

Mr. Victor Vandergriff Opinion No. GA-0820
Chairman of the Board
Texas Department of Motor Vehicles Re: Delegation authority of the governing board
4000 Jackson Avenue of the Texas Department of Motor Vehicles
Austin, Texas 78731 (RQ-0879-GA)

Dear Mr. Vandergriff:

On behalf of the Board of the Texas Department of Motor Vehicles ("TxDMV Board"), you[1] request an opinion on the Board's authority to issue final orders and to allow subordinates to exercise its powers under Occupations Code chapter 2301 and Transportation Code chapter 503.[2] You also inquire about the conflict of interest provisions applicable to Board members. Request Letter at 12-13.

The TxDMV Board was established by Transportation Code section 1001.021 and granted the powers and duties stated in Transportation Code chapters 1001 through 1005. See TEX. TRANSP. CODE ANN. §§ 1001.001(1), .021 (West Supp. 2010). Chapter 2301 provides for the Motor Vehicle Division ("MVD" or "Division") of the TxDMV and for a director of the MVD, the division's chief executive and administrative officer. TEX. OCC. CODE ANN. §§ 2301.002(10)-(12), .101(a) (West Supp. 2010).

Your first question involves the Board's and the MVD director's authority under Occupations Code chapter 2301, which regulates the sale or lease of motor vehicles. Request Letter at 6; TEX. OCC. CODE ANN. §§ 2301.001-.853 (West 2004 & Supp. 2010). You ask whether Occupations Code sections 2301.709-.711 authorize the Board to make final decisions in administrative cases arising under chapter 2301, except for subchapter M, known as the "Lemon Law." Request Letter at 6; see TEX. OCC. CODE ANN. §§ 2301.601-.613 (West 2004 & Supp. 2010) (subchapter M).[3]

Sections 2301.709-.711 relate to hearing procedures in contested cases. See TEX. OCC. CODE ANN. §§ 2301.701, .703 (West 2004). Hearings in contested cases arising under chapter 2301 or a Board rule must be conducted by an administrative law judge ("ALJ") of the State Office of Administrative Hearings. Id. §§ 2301.703 (West 2004), 2301.704(a) (West Supp. 2010). The ALJ is authorized to "issue a proposal for decision and recommend a final order." See id. § 2301.704(b)(8) (West Supp. 2010). After reviewing the case, the Board "shall issue a written final decision or order." Id. § 2301.709(d); see also id. §§ 2301.710 (West 2004) (authorizing the Board to issue a final order dismissing a complaint), 2301.711 (stating required content of orders and decisions). If the language of a statute is unambiguous, "its plain meaning will prevail." Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). Sections 2301.709(d) and 2301.710 expressly authorize the Board to issue a final order in a contested case under chapter 2301 and Board rules, except for cases under chapter 2301, subchapter M, which we next consider.

Chapter 2301, subchapter M of the Occupations Code, the Lemon Law, requires manufacturers, converters, or distributors to take actions necessary to conform the vehicle to the express warranties they have made. See id. §§ 2301.603(a), .604(a) (West 2004). If an administrative proceeding is necessary to enforce the law, "[t]he director under board rules shall conduct hearings and issue final orders for the implementation and enforcement of this subchapter." Id. § 2301.606(a). An order issued by the MVD director under subchapter M "is considered a final order of the board." Id. As the plain language of section 2301.606(a) shows, the MVD director "shall ... issue final orders" to implement and enforce subchapter M. Id.

You also ask whether the MVD director is authorized to make the final decision in enforcement cases arising under Transportation Code chapter 503, which provides for the regulation of motor vehicle dealers and manufacturers. Request Letter at 6; see TEX. TRANSP. CODE ANN. §§ 503.001-.095 (West 2007 & Supp. 2010). Transportation Code section 503.009 provides for hearings in contested cases:

(a) The department's Motor Vehicle Board[4] may conduct hearings in contested cases brought under and as provided by this chapter.

(b) The procedures applicable to a hearing conducted under this section are those applicable to a hearing conducted as provided by Section 2301.606(a), Occupations Code.

(c) A decision or final order issued under this section is final and may not be appealed, as a matter of right, to the commission.

(d) [Board may adopt rules for an action brought under section 503.009].

TEX. TRANSP. CODE ANN. § 503.009 (West 2007).

Read in isolation, section 503.009(a) seems to authorize the TxDMV Board to "conduct hearings in contested cases brought under and as provided by" chapter 503. Id. § 503.009(a). Section 503.009(b), however, provides that the procedures "applicable to a hearing conducted as provided by Section 2301.606(a), Occupations Code" also apply to a hearing under section 503.009. Id. § 503.009(b). "Statutes which refer to other statutes and make them applicable to the subject of legislation are called 'reference statutes,' and are a familiar and valid mode of legislation." W. Cas. & Sur. Co. v. Young, 339 S.W.2d 277, 280 (Tex. Civ. App.-Beaumont 1960, writ ref'd) (quoting Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927)). When one statute references another, we look to the referenced statute to understand the referencing statute. See In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998) (per curiam). Thus, we look to section 2301.606(a), which states that "[t]he director under board rules shall conduct hearings and issue final orders for the implementation and enforcement of this subchapter. An order issued by the director under this subchapter is considered a final order of the board." TEX. OCC. CODE ANN. § 2301.606(a) (West 2004). Because the procedures of subsection 2301.606(a) authorizing the director to conduct hearings and issue final orders are incorporated into Transportation Code section 503.009, the director is authorized to issue final orders in contested cases brought under chapter 503.[6]

As your second question, you ask whether the Board may delegate its decision-making authority to the MVD director. Request Letter at 7. You mention Occupations Code section 2301.154, which provides that "[t]he [MVD] director may delegate any of the director's powers to one or more of the division's employees." TEX. OCC. CODE ANN. § 2301.154 (West Supp. 2010); see id. § 2301.002(10), (12) (defining "director"). A predecessor of section 2301.154 authorized the Motor Vehicle Board of TxDOT to delegate any of its powers to board members, the director, or employees, but a 2005 amendment adopted the present language. See Act of May 18, 1989, 71st Leg., R.S., ch. 1130, § 12, 1989 Tex. Gen. Laws 4653, 4659 (adopting article 4413(36), section 3.04, Revised Civil Statutes), amended by Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.05, 2005 Tex. Gen. Laws 778, 840. In amending a statute, the Legislature is presumed to have intended some change to existing law and effect must be given to the amendment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979). Occupations Code section 2301.154 does not authorize the Board to delegate its decision-making powers to the director.

You raise Transportation Code section 1003.002(a)(1), which provides that "[t]he board or the department by rule may ... create a summary procedure for routine matters." Request Letter at 11. See TEX. TRANSP. CODE ANN. § 1003.002(a)(1) (West Supp. 2010); see also id. § 1003.002(d) (authorizing the board by rule to provide for delegating authority to an employee to take action on a routine matter). The Board may designate an activity as a routine matter only if it is "(1) voluminous; (2) repetitive; (3) believed to be noncontroversial; and (4) of limited interest to anyone other than persons immediately involved in or affected by the proposed department action." Id. § 1003.002(b) (paragraph form deleted). This is the only provision that expressly authorizes the Board to delegate any of its powers.

We question whether issuing a final order is a routine matter under this provision. The governing body of an administrative agency has some discretion to change a finding of fact or conclusion of law made by the ALJ or to vacate or modify an order issued by the ALJ. See TEX. GOV'T CODE ANN. § 2001.058(e) (West 2008). Thus, the Board may construe the statutes it administers, an action that could be controversial or of interest to persons other than those immediately involved in or affected by the proposed department action. See TEX. TRANSP. CODE ANN. § 1003.002(d) (West Supp. 2010). Accordingly, we cannot say as a matter of law that section 1003.002(d) authorizes the Board to delegate its authority to issue a final order.

You suggest that the Board has implied authority to delegate its chapter 2301 duties as to final orders. See Request Letter at 7-12. When a statute vests a specific function in a designated public officer or body, the Legislature presumably intends that only that officer or body shall exercise the assigned functions. See Schade v. Tex. Workers' Comp. Comm'n, 150 S.W.3d 542, 548-49 (Tex. App.-Austin 2004, pet. denied), Lipsey v. Tex. Dep't of Health, 727 S.W.2d 61, 64 (Tex. App.-Austin 1987, writ ref'd n.r.e.), Moody v. Tex. Water Comm'n, 373 S.W.2d 793, 797 (Tex. Civ. App.-Austin 1963, writ ref'd n.r.e.). Absent express authority, a governmental entity may delegate only ministerial tasks.[7] See Schade, 150 S.W.3d at 548-49, Newsom v. Adams, 451 S.W.2d 948, 953 (Tex. Civ. App.-Beaumont 1970, no writ), Moody, 373 S.W.2d at 797, Tex. Att'y Gen. Op. No. GA-0434 (2006) at 3. While section 2301.153 grants the Board "all powers necessary, incidental, or convenient to perform a power or duty expressly granted under this chapter," including specific enumerated powers, neither this provision nor any other authorizes the Board to delegate its duties as to final orders. TEX. OCC. CODE ANN. § 2301.153 (West 2004).

You finally raise Transportation Code section 1001.042, which provides that "[t]he board shall develop and implement policies that clearly define the respective responsibilities of the director and the staff of the department," suggesting that this provision would allow the Board to delegate final order authority to Board members and to the MVD director. TEX. TRANSP. CODE ANN. § 1001.042 (West Supp. 2010); Request Letter at 10-11. Section 1001.042 does not expressly authorize the Board to delegate statutory duties to the executive director or to individual Board members. In answer to your second question, we advise you that the TxDMV Board has no implied authority to delegate its final order authority to the DMV director or any other person.

Your third question relates to Board members' conflicts of interest. See Request Letter at 12. You ask whether Board members who represent a dealer or manufacturer are prohibited from voting on cases where their industry affiliation might place them in opposition to a party. Id. at 12-13; see also TEX. TRANSP. CODE ANN. § 1001.021(b) (West Supp. 2010) (requiring industry representatives to be included on Board).

Transportation Code 1001.028 provides that "[a] member of the board shall disclose in writing to the executive director if the member has an interest in a matter before the board or has a substantial financial interest in an entity that has a direct interest in the matter" and "shall recuse himself or herself from the board's deliberations and actions on the matter." TEX. TRANSP. CODE ANN. § 1001.028(a)-(b) (West Supp. 2010). "A person has a substantial financial interest in an entity if [he or she] (1) is an employee, member, director, or officer of the entity; or (2) owns or controls, directly or indirectly, more than a five percent interest in the entity." Id. § 1001.028(c). This provision does not automatically bar Board members who are industry representatives from participating in a decision of the Board that involves a dispute between industry parties. Instead, section 1001.028 requires a Board member to decide, in the first instance, whether he or she has an interest in a matter or a substantial financial interest in an entity that has a direct interest in a matter. If so, the Board member may not participate in the Board's decision on the matter. Whether a Board member is barred from participation in a particular matter must be decided on a case-by-case basis in view of the relevant facts. See Tex. Att'y Gen. Op. No. GA-0557 (2007) at 3 (recognizing that questions involving conflicts of interest require an examination of all the facts and are not appropriate for an attorney general opinion).

The Board is also "subject to the code of ethics and the standard of conduct imposed by Chapter 572, Government Code, and any other laws regulating the ethical conduct of state officers and employees." TEX. TRANSP. CODE ANN. § 1005.001 (West Supp. 2010); see, e.g., TEX. GOV'T CODE ANN. § 572.051 (West Supp. 2010) (prohibiting certain conduct that might influence the officer or employee in the discharge of official duties). The application of chapter 572 to a Board member must be decided on a case-by-case basis in view of the relevant facts.

SUMMARY

The Board of the Department of Motor Vehicles is authorized to issue a final order in a contested case under Occupations Code chapter 2301, except for cases under chapter 2301, subchapter M, the "Lemon Law." The director of the Motor Vehicle Division of the Department is authorized to issue final orders in cases under the Lemon Law and under Transportation Code chapter 503.

The Board has no implied authority to delegate its authority to issue final orders in contested cases to the director of the Motor Vehicle Division.

Board members are subject to conflict-of-interest provisions found in Transportation Code section 1001.028, Government Code chapter 572, and any other law that regulates the ethical conduct of state officers and employees. The application of these statutes to a Board member must be decided on a case-by-case basis in view of the relevant facts.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[1] The Legislature created the TxDMV in 2009, transferring certain powers from the Texas Department of Transportation ("TxDOT") to the TxDMV Board. See Act of May 23, 2009, 81st Leg., R.S., ch. 933, § 6.01(a), 2009 Tex. Gen. Laws 2485, 2519.

[2] Request Letter at 1, 6-7 (available at http://www.texasattorneygeneral.gov).

[3] See 43 TEX. ADMIN. CODE § 215.21 (2010) (Tex. Dep't of Motor Vehicles, Objective) (describing Occupations Code chapter 2301, subchapter M as the "Lemon Law").

[4] TEX. OCC. CODE ANN. §§ 2301.601-.613 (West 2004 & Supp. 2010).

[5] The term "department" in section 503.009 now means the "Texas Department of Motor Vehicles," while "board" and "commission" mean the TxDMV Board. See TEX. TRANSP. CODE ANN. § 503.001(1)-(2), (5) (West Supp. 2010).

[6] From 1995 through 2005 the MVD director and not the Board made the final decisions in enforcement cases brought under Transportation Code chapter 503. Request Letter at 4. The director continued to make those decisions from 2005 through 2009, when no Board existed. Id. at 5-6.

[7] "Ministerial acts are those for which 'the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.'" Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004) (quoting Comm'r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)).