Can a Texas court make me pay a fee to dismiss a no-insurance ticket after I prove I actually had coverage?

Texas AG Opinion JM-917: A $10 Fee to Dismiss a No-Insurance Charge

Plain-English summary

Texas requires drivers to carry proof of financial responsibility, which for most people means auto liability insurance, and it is a crime to drive without maintaining that coverage. There is a sensible safety valve built into the law: if you actually had valid coverage but could not show the officer your paperwork at the roadside, you can bring that proof to court, and when you do, the statute says the charge "shall be dismissed." At that point the law itself treats you as innocent, because producing the proof knocks out the assumption that you were uninsured.

Then the legislature added a wrinkle in 1987. It said that even when the charge gets dismissed this way, the driver has to pay a $10 fee first. A state senator asked the Attorney General whether that fee could stand. The answer was no. The problem is stark once you lay it out: the same statute that declares the defendant innocent and orders the charge dismissed also demands a payment to make that dismissal happen. You are being charged money to be let off a charge you were never guilty of.

The Attorney General grounded this in due process, which both the Texas and U.S. Constitutions guarantee. State action has to line up with basic principles of liberty and justice, and making an innocent person pay to clear an unfounded charge does not. The opinion drew a sharp comparison to the ban on ex post facto laws: if a constitution will not let the state punish conduct that was not a crime when it happened, it certainly will not let the state punish conduct that is not a crime at all. And it reached back to Magna Carta for the oldest version of the principle, the promise that the state will sell to no one either justice or right. Charging a fee for a dismissal the defendant is entitled to is exactly that kind of sale of justice, so the fee is unconstitutional.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

The Motor Vehicle Safety-Responsibility Act discussed here, former article 6701h, V.T.C.S., has since been recodified into the Transportation Code, where the financial-responsibility requirements and the defense of producing valid proof of insurance now live under different section numbers. The particular $10 dismissal fee this opinion found unconstitutional is a product of the 1987 amendment, and the current statutes handle dismissal, proof-of-insurance defenses, and any associated fees differently. The constitutional principle at the core of the opinion, that an innocent defendant cannot be made to pay a fee to obtain a dismissal to which the law entitles them, remains sound, but anyone facing a no-insurance charge today should look to the current Transportation Code provisions and the applicable court rules rather than the article 6701h sections cited here.

Who this opinion affected (as of 1988)

Drivers charged with no proof of insurance: The opinion meant that a driver who brought valid proof of coverage to court and had the charge dismissed could not be forced to pay the $10 fee to get that dismissal.

Courts and clerks: The opinion told them the fee provision in section 1C(e) was unconstitutional and could not be collected as a condition of dismissing these charges.

The legislature: The opinion flagged that conditioning the dismissal of a charge against an innocent defendant on payment of a fee cannot survive due process review.

Common questions

If I really had insurance but forgot my proof, is that a crime?
No. The opinion explains that failing to furnish documentary proof on request is not itself a crime. The crime is failing to maintain financial responsibility, and producing valid proof in court is a defense that requires the charge to be dismissed.

Why was the $10 fee unconstitutional?
Because it required a defendant the statute treats as innocent to pay money in order to get the dismissal the statute promises. Making an innocent person pay to clear an unfounded charge violates due process.

Does this mean I can never be charged court costs?
This opinion is narrower than that. It addresses a fee demanded as the price of dismissing a charge against someone the statute itself declares innocent. That specific setup is what offends due process.

What older principle did the Attorney General rely on?
He pointed to the ban on ex post facto laws and, going further back, to Magna Carta's promise that the state will not sell justice or right to anyone.

Background and statutory framework

The Motor Vehicle Safety-Responsibility Act requires, as a condition of operating a motor vehicle, that automobile liability insurance in a specified amount be available to cover potential losses, unless the vehicle is exempt or other acceptable financial-responsibility arrangements are made (V.T.C.S. article 6701h, section 1A). Section 1C(a) makes it a crime to fail to maintain financial responsibility. Section 1B(a) requires every owner or operator to furnish evidence of financial responsibility on request and specifies the appropriate evidence, but failing to furnish that documentary proof is not itself a crime; the statute does not create an offense merely because a driver lacks documentary proof while driving (Attorney General Opinions MW-577 (1983) and JM-439 (1986)). The legislature remains free to make failure to carry proof a crime, but it had not.

Section 1D sets out a defense: producing documentary proof of financial responsibility valid at the time the offense is alleged to have occurred, in which case "the charge shall be dismissed." Producing that evidence in court negates any presumption that an offense was committed, so a defendant charged based on the presumption arising from a failure to furnish proof, who then furnishes sufficient proof, is innocent. (A footnote noted a per curiam decision, Coit v. State, 728 S.W.2d 105 (Tex. App. - Austin 1987, pet. ref'd, n.r.e.), sanctioning use of the failure-to-produce presumption as the sole basis for a conviction, but the questions presented did not require the Attorney General to address it.)

The 70th Legislature amended the statute to require persons found innocent in these circumstances to nevertheless pay a $10 fee when the charge is dismissed (Acts 1987, 70th Leg., ch. 579, section 1, effective September 1, 1987, adding section 1C(e)). The Attorney General concluded that imposing such a fee violates due process. Both the Texas and United States Constitutions require due process in administering the criminal laws (Tex. Const. article I, sections 13 and 19; U.S. Const. amendments V and XIV), and state action must be consistent with the fundamental principles of liberty and justice (Dixon v. McMullen, 527 F. Supp. 711 (N.D. Tex. 1981)). Collecting a fee from a defendant pronounced innocent by the same statute that requires the fee departs from the principles of ordered liberty. A constitution that does not permit ex post facto laws surely does not permit punishment of an act that is not made unlawful (Tex. Const. article I, section 16). Requiring an innocent defendant to pay a fee to obtain dismissal of an unfounded criminal charge has been contrary to due process and the law of the land since Magna Carta ("We will sell to no man . . . either justice or right." Magna Carta, ch. 40).

Citations

Statutory and constitutional authority:

• Motor Vehicle Safety-Responsibility Act, V.T.C.S. article 6701h, section 1A (financial responsibility required to operate a vehicle)
• V.T.C.S. article 6701h, section 1B(a) (must furnish evidence of financial responsibility on request; failure to furnish is not itself a crime)
• V.T.C.S. article 6701h, section 1C(a) (crime to fail to maintain financial responsibility); section 1C(e) ($10 dismissal fee, added by Acts 1987, 70th Leg., ch. 579, section 1)
• V.T.C.S. article 6701h, section 1D (defense: producing valid proof requires the charge to be dismissed)
• Tex. Const. article I, sections 13, 16 (no ex post facto laws), 19 (due course of law); U.S. Const. amendments V and XIV (due process)
• Magna Carta, ch. 40

Cases:

• Dixon v. McMullen, 527 F. Supp. 711 (N.D. Tex. 1981) (U.S. District Court for the Northern District of Texas; state action must be consistent with fundamental principles of liberty and justice)
• Coit v. State, 728 S.W.2d 105 (Tex. App. - Austin 1987, pet. ref'd, n.r.e.) (Texas Court of Appeals; noted in a footnote, not addressed)

Prior Attorney General materials referenced: MW-577 (1983); JM-439 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-917
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0917.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The scan garbled the section number in the header as "E(e)"; the provision at issue, used throughout, is section 1C(e).

THE ATTORNEY GENERAL OF TEXAS

June 16, 1988

Honorable Hugh Parmer
Chairman, Intergovernmental Relations Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-917

Re: Constitutionality of section 1C(e) of article 6701h, V.T.C.S., requiring payment of a $10 fee to dismiss proceedings for failure to maintain proof of financial responsibility (RQ-1427)

Dear Senator Parmer:

The 70th legislature amended the Motor Vehicle Safety-Responsibility Act to permit courts to charge a ten dollar fee before dismissing a criminal charge for failure to maintain proof of financial responsibility, when the charge is based solely on a failure to produce suitable documentary proof of financial responsibility when requested by a police officer and when adequate proof is produced at a subsequent hearing on the charge. The fee is unconstitutional.

The Safety-Responsibility Act requires as a condition for the operation of a motor vehicle that a policy of automobile liability insurance be available in a specified amount to insure against potential losses which may arise out of the operation of the vehicle, unless the vehicle is exempt, or unless other acceptable arrangements to demonstrate financial responsibility have been made. V.T.C.S. art. 6701h, § 1A. Section 1C of the act makes it a crime to fail to maintain financial responsibility. V.T.C.S. art. 6701h, § 1C(a).

Section 1B of the statute mandates that "every owner and/or operator in the State of Texas shall be required, as a condition of driving, to furnish, upon request, evidence of financial responsibility. . . ." V.T.C.S. art. 6701h, § 1B(a). While this section of the statute specifies the appropriate evidence of financial responsibility that must be furnished to a police officer who requests it, failure to furnish the evidence is not a crime. In other words, section 1B of the statute does not create an offense where the operator of a motor vehicle does not carry documentary proof of financial responsibility while operating a motor vehicle. Attorney General Opinion MW-577 (1983). See also Attorney General Opinion JM-439 (1986). The legislature remains free to make the failure to carry proof of financial responsibility when operating a motor vehicle a crime.

The statute sets out as a "defense" to a prosecution for failure to maintain financial responsibility the production of documentary proof of financial responsibility that was valid at the time that the "offense is alleged to have occurred." In such a case, "the charge shall be dismissed." V.T.C.S. art. 6701h, § 1D. In other words, evidence of financial responsibility produced in court negates any presumption that an offense has been committed. Thus, if a charge is brought for failure to maintain financial responsibility based on the presumption that a failure to furnish documentary proof of financial responsibility is evidence of a failure to maintain the requisite financial responsibility, and sufficient proof of financial responsibility is furnished, then the defendant is innocent.

The 70th legislature amended the statute to require that persons found innocent in these circumstances nevertheless must pay a ten dollar fee when the charge is dismissed. Acts 1987, 70th Leg., ch. 579, § 1 (eff. Sept. 1, 1987) (amending section 1C, article 6701h, V.T.C.S.). Imposition of such a fee violates due process.

The constitutions of both Texas and the United States contain provisions requiring that the state provide due process in administering the criminal laws. Tex. Const. art. I, §§ 13, 19; U.S. Const., amendments V and XIV. Action by the state must be consistent with the fundamental principles of liberty and justice. Dixon v. McMullen, 527 F. Supp. 711 (N.D. Tex. 1981).[1] Collecting a fee from a defendant pronounced innocent by the same statute which requires the fee departs from the principles of ordered liberty. A constitution that does not permit ex post facto laws surely does not permit punishment of an act that is not made unlawful. See Tex. Const. art. I, § 16. The law may not require a defendant to pay a fee in order to obtain the dismissal of a criminal charge of which the defendant is innocent.

[1] We are aware of a per curiam decision by a single court of appeals that sanctions the use of a presumption based on a failure to produce documentary evidence of financial responsibility as the sole basis for a conviction for failure to maintain financial responsibility. Coit v. State, 728 S.W.2d 105 (Tex. App. - Austin 1987, pet. ref'd, n.r.e.). Your questions do not require us to address the opinion in this case.

The requirement that an innocent defendant pay a ten dollar fee before obtaining the dismissal of an unfounded criminal charge has been contrary to our notions of due process and the law of the land since Magna Carta. ("We will sell to no man . . . either justice or right." Magna Carta, ch. 40, reprinted in 11 Guide to American Law 252). See also Tex. Const. art. I, §§ 13, 19.

SUMMARY

Article 6701h, section 1C(e) of the Motor Vehicle Safety-Responsibility Act is unconstitutional. Criminal defendants innocent of a charge may not be required to pay a fee in order to have the charge dismissed.

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 Don Bustion
Assistant Attorney General