Does a Texas county clerk have to report a mental incompetency ruling to the Department of Public Safety even when the order doesn't mention a driver's license?

Texas AG Opinion JM-1126: Must a County Clerk Report a Mental Incompetency Finding to DPS?

Plain-English summary

The Harris County Attorney asked the Attorney General four questions about when a county clerk has to tell the Department of Public Safety that a court has found someone mentally incompetent. The concern was whether the clerk's reporting duty depends on the kind of case, or on whether the court's order actually mentions that the person holds a driver's license.

The Attorney General answered that the clerk's duty to notify is broad and does not turn on those details. Article 6687b, section 30 makes it unlawful for a person who has been adjudged mentally incompetent to drive, and it provides that any finding by any court of competent jurisdiction that a person holding a driver's license is mentally incompetent carries with it an automatic revocation of that license. The statute then directs the clerk of any court in which such findings are made to certify them to the Department of Public Safety within ten days. Reading that together, the opinion concluded that a mentally incompetent person's driver's license is revoked automatically by operation of law, whether or not the court specifically found that the person holds a license. So the clerk must report the incompetency finding regardless of the nature of the proceeding, and the clerk has no separate duty to figure out whether the person actually holds a license when the court's findings are silent on that point.

The opinion also addressed a confidentiality wrinkle. Article 5547-12 declares mental-illness court records to be public records of a private nature that may generally be used, inspected, or copied only under a written order from a specified judge. The Attorney General read article 5547-12 together with article 6687b, section 30, and concluded that because the Legislature already decided that certifying incompetency findings to DPS is in the public interest, the clerk does not need a separate court order or a separate "public interest" finding before reporting. Section 30's specific direction operates as an exception to the general confidentiality rule for this purpose.

Currency note

This opinion was issued in 1989. 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 driver's license statutes analyzed here as article 6687b, V.T.C.S., have since been recodified into the Transportation Code, and the mental-health records provisions of article 5547-12 have been revised as part of the Health and Safety Code. Anyone dealing with a present-day clerk's reporting duty should consult the current Transportation Code and Health and Safety Code rather than the 1989 statutes cited in this opinion.

Who this opinion affected (as of 1989)

County clerks: The opinion told clerks they were required to certify to the Department of Public Safety any finding by any court of competent jurisdiction that a person is mentally incompetent, within ten days, regardless of the type of proceeding and even when the court's findings said nothing about a driver's license. Clerks had no duty to independently determine whether the person actually held a license.

Courts and judges handling mental-competency matters: The opinion treated the clerk's certification as flowing automatically from a finding of incompetence, not as something requiring a separate order or public-interest finding, even though the underlying mental-health records were otherwise confidential under article 5547-12.

People adjudged mentally incompetent: For these individuals, a finding of incompetence carried an automatic revocation of any driver's license they held, by operation of section 30, without the court needing to make a specific finding that they held a license.

Common questions

Does a county clerk have to report every mental incompetency finding to DPS?
Yes. The Attorney General concluded the clerk must notify the Department of Public Safety of any finding by any court of competent jurisdiction that a person is mentally incompetent, regardless of the nature of the proceeding.

What if the court's order doesn't say the person has a driver's license?
The clerk still must report. A finding of incompetence automatically revokes any license the person holds by operation of article 6687b, section 30, so the revocation and the reporting duty do not depend on the court making a specific finding about a license.

Does the clerk have to figure out whether the person actually holds a license?
No. The opinion said the clerk has no duty to determine whether a person adjudged mentally incompetent holds a driver's license when the court's findings are silent. The clerk's duty is simply to notify DPS.

Aren't mental-health court records confidential?
Yes, article 5547-12 makes them public records of a private nature, generally accessible only by court order. But the opinion concluded that section 30's specific requirement to certify incompetency findings to DPS is an exception, so the clerk does not need a separate order or public-interest finding to report.

Background and statutory framework

Article 6687b, section 4, V.T.C.S., specifies that drivers' licenses are not to be issued to certain persons, including those "shown to be addicted to the use of alcohol or a controlled substance" and those "adjudged mentally incompetent" by a court of competent jurisdiction and not restored to competency (id. subsecs. (4), (5)). Section 30 of article 6687b then makes it unlawful for an adjudicated incompetent to drive and provides that any finding by any court of competent jurisdiction that a person holding a driver's license is mentally incompetent (or addicted to alcohol or a controlled substance) carries with it a revocation of the license, and directs the clerk of any court in which such findings are made to certify them to the Department within ten days.

Reading section 30 as a whole, the Attorney General concluded that the driver's license of a person adjudged mentally incompetent is automatically revoked by operation of law whether or not the adjudicating court specifically finds that the person holds a license. The criminality of driving after such an adjudication does not depend on a prior adjudication that the driver held a revoked license, and it would be incongruous to suppose the Legislature intended automatic revocation only for licenses of adjudicated incompetents who were also shown by evidence in court to hold licenses. The object of section 30 is to protect the public from mentally incompetent drivers. The opinion analogized to section 24 of article 6687b, under which consequences flow automatically upon a final conviction for driving while intoxicated in violation of article 6701l-1, V.T.C.S. (see Davidson v. State, 313 S.W.2d 883 (Tex. Crim. App. 1958); Gaddy v. Texas Dep't of Pub. Safety, 380 S.W.2d 783 (Tex. Civ. App. - Eastland 1964, no writ) (automatic suspension operative upon conviction without regard to whether a specific provision therefor is in the judgment)). Because section 30 requires clerks to certify such findings regardless of the nature of the proceeding, the opinion answered the first two questions by concluding the clerk must notify the department.

On the confidentiality question, article 5547-12, V.T.C.S., declares each writing in a mentally-ill docket in the county clerk's office to be a public record of a private nature, generally usable, inspectable, or copiable only by written order of the county judge, a probate judge, or a district judge of the county, with exceptions for the patient's counsel and for law-enforcement access. The Attorney General read article 5547-12 in pari materia with section 30 of article 6687b (see 67 Tex. Jur. 3d Statutes § 136, at 747). Because the Legislature, by enacting section 30, already determined that certification to DPS is in the public interest, it would be contrary to the plain meaning of the statute and an abuse of discretion for a court to find otherwise (see Bullock v. Bingo King Co., 714 S.W.2d 320 (Tex. App. - Austin 1986, writ ref'd n.r.e.)). No separate "finding" under article 5547-12 that the transmission is in the public interest is necessary, because a finding of incompetence necessarily includes that determination by reason of section 30 (see Morris v. Short, 151 S.W. 633 (Tex. Civ. App. - Texarkana 1912, writ ref'd)). Nor is a judge's order necessary to authorize transmission; the specific provisions of section 30 furnish an exception to the general requirements of article 5547-12 for the use, inspection, and copying of such records (see 67 Tex. Jur. 3d Statutes §§ 126, 136, at 719, 747; see generally Open Records Decision No. 516 (1989) (inter-agency transfers of confidential information not violative of the Open Records Act)).

Citations

Statutory authorities:

• V.T.C.S. art. 6687b, § 4 (persons not to be issued a driver's license; subsecs. (4), (5)); § 24 (automatic consequences upon DWI conviction); § 30 (automatic revocation on incompetency finding and clerk's duty to certify to DPS within ten days)
• V.T.C.S. art. 6701l-1 (driving while intoxicated)
• V.T.C.S. art. 5547-12 (mentally-ill docket records; confidentiality and access)
• 67 Tex. Jur. 3d Statutes § 136, at 747; §§ 126, 136, at 719, 747 (statutory construction; in pari materia and specific-over-general)

Cases:

• Davidson v. State, 313 S.W.2d 883 (Tex. Crim. App. 1958) (automatic consequence of conviction)
• Gaddy v. Texas Dep't of Pub. Safety, 380 S.W.2d 783 (Tex. Civ. App. - Eastland 1964, no writ) (automatic suspension operative upon conviction regardless of the judgment's terms)
• Bullock v. Bingo King Co., 714 S.W.2d 320 (Tex. App. - Austin 1986, writ ref'd n.r.e.) (plain meaning; abuse of discretion to find otherwise)
• Morris v. Short, 151 S.W. 633 (Tex. Civ. App. - Texarkana 1912, writ ref'd) (statutory construction)

Attorney General materials referenced:

• Open Records Decision No. 516 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1126
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1126.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

December 28, 1989

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-1126

Re: Duty of a county clerk to notify the Department of Public Safety about the mental competence of a person holding a driver's license (RQ-1842)

Dear Mr. Driscoll:

You ask four questions concerning the duty of a county clerk to notify the Department of Public Safety when a person holding a driver's license is found to be mentally incompetent. They are:

1. Is the County Clerk required to notify the Department of Public Safety of court findings that a person holding a driver's license is mentally incompetent?

2. Is the County Clerk required to notify the Department of Public Safety of court findings that a person holding a driver's license is mentally incompetent regardless of the nature of the proceeding?

3. Is the County Clerk required to notify the Department of Public Safety of court findings that a person is mentally incompetent, but are silent as to whether the person holds a driver's license?

4. Is it the duty of the County Clerk to determine whether a person found to be mentally incompetent holds a driver's license when the court findings are silent on this issue?

Article 6687b, section 4, V.T.C.S., specifies that drivers' licenses are not to be issued to certain persons. Among them are persons "shown to be addicted to the use of alcohol or a controlled substance," or persons who have been "adjudged mentally incompetent" by a court of competent jurisdiction and not restored to competency. Id. subsecs. (4), (5). Section 30 of article 6687b provides:

It shall be unlawful for any person to act as a driver of a motor vehicle who is addicted to the use of alcohol or a controlled substance, or who has been adjudged mentally incompetent and has not been restored to competency by judicial decree or released from a hospital for the mentally incompetent upon a certificate of the superintendent that such person is competent. A finding that a person is addicted to the use of alcohol or a controlled substance must be based on a determination by the court that the person is psychologically or physiologically dependent on alcohol or a controlled substance. Any finding by any court of competent jurisdiction that any person holding a driver's license is mentally incompetent or addicted to the use of alcohol or a controlled substance shall carry with it a revocation of the driver's license. It shall be the duty of the clerk of any court in which such findings are made, to certify same to the Department within ten (10) days. (Emphasis added.)

In our opinion, the driver's license of a person adjudged (found) mentally incompetent is automatically revoked by operation of section 30, whether or not the adjudicating court makes a specific finding that the person holds a driver's license.

The initial sentence of section 30 declares that it is unlawful for any person who has been adjudged mentally incompetent to act as the driver of a motor vehicle in this state. Clearly, the criminality of that act is not dependent upon an additional prior adjudication that the actor held a revoked driver's license, and it is incongruous to suppose that the legislature intended automatic revocation for only licenses of adjudicated incompetents who are also shown by evidence produced in court (found) to possess licenses. The object of section 30 is to protect the public from mentally incompetent drivers.

We think that the only "finding" section 30 of article 6687b contemplates as a prerequisite to automatic revocation of any driver's license held by the subject of the proceedings is a finding of mental incompetence. From that finding, ipso facto, other consequences flow by operation of law, just as they do, pursuant to section 24 of article 6687b, when a person is finally convicted of driving while intoxicated in violation of article 6701l-1, V.T.C.S. Cf. Davidson v. State, 313 S.W.2d 883 (Tex. Crim. App. 1958); Gaddy v. Texas Dep't of Pub. Safety, 380 S.W.2d 783 (Tex. Civ. App. - Eastland 1964, no writ) (automatic suspension operative upon conviction without regard to whether specific provision therefor is in judgment).

Unless some other law intervenes, inasmuch as section 30 of article 6687b expressly requires the clerks of court to certify to the Department of Public Safety any findings of any court of competent jurisdiction that persons holding drivers' licenses are mentally incompetent, it follows -- in answer to your first two questions -- that the county clerk is required to notify the department of such findings regardless of the nature of the proceedings.

Our attention has been directed to article 5547-12, V.T.C.S., which reads:

Each and every writing, including but not limited to docket books, indices, judgment books, etc., in a mentally ill docket in the office of the county clerk is hereby declared to be a public record of a private nature which may be used, inspected, or copied only by a written order of the county judge, a judge of a court having probate jurisdiction, or a district judge of the county in which the docket is located. No such order shall issue until the issuing judge has entered findings that said use, inspection, or copying is justified and in the public interest or that such release is to a patient, former patient, or to a person designated by the patient upon signed and written consent for the release of such information by the allegedly mentally ill person; and that the reasons for such use, inspection, or copying fall within the statutory exemptions to confidentiality of mental health information or physician/patient privilege where the disclosure of such information is in issue. Such records shall be released to any attorney representing the proposed patient in a proceeding held under this code. Nothing herein shall prevent access by law enforcement personnel to necessary information in execution of a writ or warrant. (Emphasis added.)

Article 5547-12 must be read in pari materia with section 30 of article 6687b, V.T.C.S. See 67 Tex. Jur. 3d Statutes § 136, at 747. Since the legislature has determined, by enacting section 30 of article 6687b, that certification by the clerk to the Department of Public Safety of findings of mental incompetence is in the public interest, it would be contrary to the plain meaning of the statute and an abuse of discretion for a court to find otherwise. See Bullock v. Bingo King Co., 714 S.W.2d 320 (Tex. App. - Austin 1986, writ ref'd n.r.e.).

There is no necessity of a separate "finding" by the court, pursuant to article 5547-12, that furnishing such information to the Department of Public Safety is in the public interest because a finding of mental incompetency, by reason of article 6687b, section 30, necessarily includes a finding that it is in the public interest to supply the information to the Department of Public Safety. See Morris v. Short, 151 S.W. 633 (Tex. Civ. App. - Texarkana 1912, writ ref'd). Nor, in our opinion, is an order by the judge necessary to authorize transmission of the information by the clerk to the Department of Public Safety. The special provisions of article 6687b, section 30, are to be regarded as furnishing an exception to the general requirements of article 5547-12 insofar as they concern the use, inspection, and copying of such records. See 67 Tex. Jur. 3d Statutes §§ 126, 136, at 719, 747.

We therefore advise that the county clerk is required to notify the Department of Public Safety of any finding by any court of competent jurisdiction that a person is mentally incompetent, whether or not the court's findings or judgment recite that the person does (or does not) hold a driver's license. The clerk has no duty to determine whether the person adjudged mentally incompetent holds a driver's license when court findings are silent about the matter; the clerk's duty is to notify the Department of Public Safety in any event. See generally Open Records Decision No. 516 (1989) (inter-agency transfers of confidential information not violative of the Open Records Act).

SUMMARY

The county clerk is required to notify the Department of Public Safety of any finding by any court of competent jurisdiction that a person is mentally incompetent, whether or not the court's findings or judgment recite that the person does (or does not) hold a driver's license. The clerk has no duty to determine that a person so adjudged holds a driver's license.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General