Regulation of Motor Vehicles

Suggested format for filing an Affirmative Defense In Texas. Other States have the same constitutional limitations as does Texas.

Now on this ______ day of _____________ comes the accused Party in the above numbered and styled case (list of offenses) and Affirms his innocence due to the fact that the regulatory agencies of State of Texas have no authority to regulate the owning and driving of a private vehicle that is not used for hire in the carrying of passengers or property.

Please be advised that this is not a plea to the Jurisdiction of the Irving Municipal Court but rather a challenge of the authority of the State of Texas and its subdivisions to regulate ______________’s moving about in his automobile while taking care of his personal business.

Please find herein seven (7) Exhibits that will substantiate the fact that Mr. Black was not engaged in any activity that warrants any criminal charges.

In Exhibit 1, 1a and 1b, please find excerpts from The Declaration of Independence for the 13 United Colonies, Constitution of the United States of America – Analysis and Interpretation by the Congressional Research Service  and from the Constitution for the State of Texas.  All three together defines and guarantees to the citizens of Texas the right to life, liberty and the pursuit of happiness.

That includes the right to live and to have and enjoy everything that it takes for one to live a healthy life as best he/she can.  The right of liberty includes the right to move about freely unimpaired by any means so long as the rights of others are not infringed upon.  The Right to Pursue Happiness has been defined by the Courts  as Property Rights and ensures that we have the right to pull together whatsoever we  choose to make our life as enjoyable as we can afford and the right to use the property amassed as we see fit so long as that use does not infringe upon the rights of others.

Mr. _______________ contends that the regulation of his right to drive his vehicle that is not used for hire has been excepted out of the general powers of the State of Texas and the City of Irving and therefor he can not lawfully be charged with the criminal actions that he has been charged with.

Please find constitutional references to the primary and preferred use of the highways of a State and the reasons for the regulation of the use of those highways.

In Exhibit 1, 1a and 1b,

          Exhibit 1.  United States Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Please be advised that __________________ hereby reserves his constitutional and common law rights that were given to him by God.

Exhibit 1 a.  Constitution of the United States of America, Analysis and Interpretation, Amendment Fourteen – Rights Guaranteed, Page 1634

Regulation of Motor Vehicles and Carriers.—The highways of a State are public property, the primary and preferred use of which is for private purposes; their uses for purposes of gain may generally be prohibited by the legislature or conditioned as it sees fit.          United States Supreme Court – Stephenson v. Binford, 287 U.S. 251 (1932).

Exhibit 1 b. Texas Constitution – Bill of Rights             

Sec. 19.  DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW.  No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Sec. 29.  BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE.  To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

In Exhibit 2, please find excerpts from the Texas Jurisprudence 2d

Texas Jurisprudence 2d

Volume II.  The Bill of Rights

  1. Generally.

SS 85. In General

The Bill of Rights guarantees personal rights of a comprehensive character.  To carry out these guarantees, courts try to insure that constitutional provisions that relate to the inalienable rights to life, liberty, and property are firmly upheld.  These rights exist inherently in every man, and are merely reaffirmed in the Constitution, and they are restricted only to the extent that they have been voluntarily surrendered by the people to their government.

Mr. ________________ declares that he does not voluntarily surrender any of his Constitutional and Common Law Rights.

  • Individual Rights, Privileges, and Immunities

SS 86.  In General.

Whenever the constitution makes a declaration of political privileges or rights or powers to be exercised by the people or the individual, it is placed beyond legislative control or interference, as much so as if the instrument had expressly declared that the individual citizen should not be deprived of those powers, privileges, and rights, and the legislature is powerless to deprive him of them.

    Mr. __________________hereby reserves his rights to life, liberty and property.  The right to life and everything requisite for the preservation of it, the right to move about freely unrestricted in any manner so long as he does not interfere with the rights of others, and the right to own property and the use of it as he sees fit so long as he does not infringe upon the rights of others.

In Exhibit 3, please find excerpts from “An Overview of Railroad Commission Records at the State Archives” informing us that the Texas Railroad Commission was the first regulatory Agency in the State of Texas that dealt primarily with Railroad Companies as well as other things.  

Please note that SB 3, 74th Legislature, Regular Session, is mentioned below and is hereby made a part of this Challenge as if it were incorporated herein.

       Exhibit 3 a. 

Railroad Commission of Texas:

An Overview of Railroad Commission Records at the Texas State Archives,

The Motor Bus Law of 1927, House Bill 50, 40th Legislature, Regular Session, and the Motor Carrier Law of 1929, House Bill 654, 41st Legislature, Regular Session, extended the Commission’s regulatory powers to commercial transportation of persons and property on state highways. In 1995, following federal deregulation of motor carriers, the 74th Legislature eliminated the agency’s authority to regulate commercial carriers involved in intrastate transport and transferred the remaining responsibilities related to commercial carriers (motor carrier registration, insurance verification, and safety) to the Texas Department of Transportation (Senate Bill 971, Regular Session), and the Department of Public Safety (Senate Bill 3, Regular Session).

     Exhibit 3 b.

Senate Bill 3, 74th Legislature, Regular Session

     Please find below the conclusion of the research performed by the House of Representatives Transportation Committee regarding Senate Bill 3 showing their findings regarding the contents of the Bill.

HOUSE SB 3 RESEARCH – Bivins

ORGANIZATION bill analysis 5/18/95 (Seidlits)

SUBJECT: Trucking deregulation; repeal of the Texas Motor Carrier Act

COMMITTEE: Transportation — favorable, without amendment

VOTE: 7 ayes — Alexander, Bosse, Alonzo, Clemons, Edwards, Siebert, Uher

             0 nays 2 absent — Moreno, Price

SENATE VOTE: On final passage, March 9 — 29-0

WITNESSES:

For — Larry Cernosek, Texas Towing and Storage Association; Mike Craddock, Southwest Warehouse and Transfer Association; Bill Haley, Texas Motor Transportation Association; Mark Foster, Texas Association of Business and Chambers of Commerce.

Against — None

BACKGROUND: Under the Texas Motor Carrier Act, the Texas Railroad Commission (TRC) regulates both rates and authority, determining who may offer trucking services, what commodities they may haul, where they may operate, and what rates they may charge. Additionally, the act allows the TRC to regulate the trucking industry for safety and insurance coverage.

The Texas Department of Public Safety (DPS) is primarily responsible for the enforcement of motor carrier safety regulation. Interstate regulation of motor carriers has decreased significantly since the passage of the federal Motor Carrier Act of 1980 and the broad interpretation of the act by the Interstate Commerce Commission (ICC). Entry into the market and trucking rates at the interstate level are based primarily on market needs, rather than government regulation. In August 1994 Congress preempted states’ authority to regulate motor carrier prices, routes or service, effectively ending economic regulation of intrastate trucking.

The state now has regulatory authority only in the areas of safety enforcement, registration of commercial vehicles and processing and maintenance of insurance filings. For additional background on trucking regulation in Texas, please see House Research Organization Session Focus No. 74-11, Transition to Deregulated Trucking Detailed, April 19, 1995.

DIGEST: CSSB 3 would repeal the Texas Motor Carrier Act and transfer regulatory authority over registration and safety of intrastate motor carriers from the Texas Railroad Commission to the Texas Department of Transportation and the Department of Public Safety (DPS).

Registration. A motor carrier would be prohibited from operating a motor vehicle or a tow truck on a road or highway of the state unless the carrier registered with TxDOT. Along with an application fee of $100 plus a $10 fee for each vehicle requiring registration, the applicant would have to file proof of insurance or financial responsibility.

Insurance. Motor carriers would have to maintain liability insurance at an amount that does not exceed the amount required for a motor carrier under federal regulations. Household goods carriers would be required to maintain cargo insurance in the same amount required for a motor carrier transporting household goods under federal law. A motor carrier would be able to meet the insurance requirements through self-insurance if the carrier demonstrated to TxDOT that it could satisfy its obligations for bodily injury and property damage liability. TxDOT could not require a motor carrier to carry workers’ compensation or similar insurance coverage.

Administrative penalties by TxDOT. The legislation would authorize TxDOT to impose an administrative penalty against a motor carrier for a violation of this act. The penalty for a violation could be up to $5,000 per violation or up to $30,000 for multiple violations. Each day of the violation could be a separate offense. Suspension and revocation of registration. TxDOT would be allowed to suspend or revoke a registration issued under this legislation for failing to maintain insurance and not registering all vehicles. DPS could request that SB 3 House Research Organization page 3 TxDOT suspend or revoke a registration if the motor carrier has an unsatisfactory safety rating. Economic regulation. TxDOT could not regulate the prices, routes or services provided by a motor carrier. TxDOT could establish voluntary standards for uniform cargo liability, uniform bills of lading or receipts for cargo being transported and uniform cargo credit. TxDOT would be required to adopt rules at least as stringent as corresponding federal provisions to protect consumers who contract with motor carriers that transport household goods. Household good carriers would be required to file a tariff with the department that establishes maximum charges for moving services. In no event could the department adopt rules regulating the rates, with the exception of the filing of the tariff, or routes of household goods carriers.

Antitrust Exemption.

The bill would exempt household goods motor carriers or any collective association of carriers or agents from prohibitions against collectively setting rates. Agreements would be submitted to TxDOT for approval. Tow truck regulation by municipality. The legislation would allow, in addition to registration requirements, municipalities to regulate the operation of tow trucks to the extent allowed by federal law. A municipality would be prohibited from requiring the registration of a tow truck that performs consent tows unless the owner of the tow truck had a place of business in the municipality. The bill would allow the municipality to require the registration of a tow truck that performs a non-consent tow, regardless of whether the owner of the tow truck has a place of business in the municipality. TxDOT would be required to appoint a rules advisory committee to advise the department on the application of this legislation to the operation of tow trucks. Conflicts of laws. A federal motor carrier safety regulation would prevail over a conflicting provision of the bill or a rule adopted by the director.

Motor transportation brokers. The bill would prohibit a person from acting as a motor transportation broker unless the person provides a bond to TxDOT. Bonds. VACS art. 6701a would be amended to exempt motor carriers from bonding requirements pertaining to the driving or transporting of farm equipment being used for agricultural purposes. CSSB 3 would also amend VACS art. 6701d-11 to exempt motor carriers from the bonding requirements pertaining to permits issued for the operation of overweight trucks. Appropriation. Any appropriation made to the TRC for the biennium ending August 31, 1997, for the administration of a law repealed by this legislation would be transferred to: • TxDOT, if the appropriation was for an activity previously administered by the TRC that would now be administered by TxDOT; • DPS, if the appropriation was for an activity previously administered by the TRC that would now be administered by DPS Administration. CSSB 3 would require TRC, TxDOT, and DPS to adopt a memorandum of understanding regarding the transfer of administrative duties that would occur as a result of this legislation. Notwithstanding any other law, the memorandum could provide for the lateral transfer of one or more of the employees whose positions would be eliminated by this legislation and whose current duties and functions approximate those required by TxDOT or DPS to implement this legislation. By January 1, 1996, TxDOT and DPS would be required to review all rules adopted to enforce this legislation; not later than January 1, 1996, all state agencies would be required to review existing regulations that affect motor carriers. This review would include efforts to eliminate duplicative regulations. All certificates of public convenience and necessity and permits issued to contract carriers would be canceled. Motor carrier would be defined as an individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a road or highway in this state. The bill would take effect September 1, 1995.

SUPPORTERS SAY: Federal preemption of state regulated trucking effectively ended economic regulation of intrastate trucking. After enactment of the federal preemption consumer and industry meetings were held to discuss how best to implement safety and consumer protections in the new era of deregulated trucking in Texas. This legislation is a result of those meetings and would bring state law into compliance with the new federal deregulation standards. For 65 years elected railroad commissioners strictly regulated Texas’ trucking industry. CSSB 3 would promote competition and encourage the motor carrier industry by requiring every state agency to review existing regulations that affect the trucking industry. The bill would promote administrative efficiency, while keeping Texas’ roads safe and the economy sound. SB 3 CSSB 3 would repeal the Texas Motor Carrier Act and transfer regulatory authority over registration and safety of intrastate motor carriers from the Texas Railroad Commission to the Texas Department of Transportation and the Department of Public Safety.

The current railroad commissioners support the transfer of authority over trucking from TRC as it would allow the agency to focus exclusively on energy issues. It makes administrative sense to shift control over licensing and registration to TxDOT and safety compliance to DPS. This legislation provides uniform and consistent registration and insurance filing procedures for motor carriers operating in Texas and retain all enforcement and rulemaking authority needed to ensure safety compliance. CSSB 3 would maintain insurance, registration and safety regulation as stringent as they are now and offers TxDOT and DPS wide latitude in issuing administrative penalties up to $30,000 for violations of these provisions. The legislation would allow TxDOT to establish necessary safety regulations for drug screening, driver qualifications prior to hiring, commercial driver license compliance, logging hours of driver service and many other safety regulations. The bill also provides an exemption to antitrust law for discussions between household goods movers and their agents regarding rates and require TxDOT to adopt rules that are at least as stringent as federal regulations to protect consumers. These measures are designed to protect consumers from fly by night household goods moving operations, while opening the industry to more competition. The legislation would allow, in addition to registration requirements, municipalities to regulate the operation of tow trucks to the extent allowed by federal law. In addition, TxDOT would be required to appoint a rules advisory committee to advise the department on the application of this legislation to the operation of tow trucks. The legislation would eliminate or exempt motor carriers from unnecessary bonding requirements. Overweight trucks could still be prosecuted for violations of the weight limits on trucks traveling on Texas roads. The bill would establish a transitional arrangement for employees at TRC by encouraging TxDOT and DPS to accept as part of a lateral transfer anyone who could work to implement this legislation.

OPPONENTS SAY: The regulations on household goods movers would apply only to trucks with a weight rating more than 26,000 pounds. All for-hire household goods carriers, regardless of vehicle weight, should be incorporated into the proposed new regulatory scheme. Every company, no matter how small, should be required to conduct its business according to the highest and strictest standards of safety. This bill would exempt all motor carriers from the bonding requirements that protect counties from overweight trucks, costing counties millions of dollars in extra expenses related to fixing roads damaged by heavy trucks. The bonding requirements for overweight trucks should remain a mandatory provision.

NOTES: The committee substitute would: • require that a filing fee accompany every application; • ensure that TxDOT is the sole administrator of registration suspensions and revocations; • allow TxDOT to adopt rules to authorize the use of electronic funds transfer or credit card transactions to pay fees; • provide TxDOT administrative penalty power to enforce the Single State Registration; • provide that interstate motor vehicles, trailers, and semitrailers are exempt from the sales and use tax, effective September 1, 2000; • provide that all motor carriers are exempt from posting bonds with TxDOT; • authorize the lateral transfer of employees from TRC to TxDOT; and • declare all certificates of public convenience and necessity, and permits issued to contract carriers are canceled.

     Please take note:

     There were no regulatory powers given to the Department of Transportation or to the Texas Department of Public Safety regarding the regulation of private vehicles not used for hire.  Please be advised that Mr. Black was not using his vehicle for hire or compensation.

     MR. ____________________ is of the opinion that the State of Texas’s and the City of Irving’s authority to regulate vehicles used on the highways and roadways originates from SB 3, 74th Legislature, Regular Session. If the State of Texas and the City of Irving contends that Mr. Black’s opinion is incorrect, please furnish the Legislative Act that provides that authority.

In Exhibit 4, please find an excerpt from the Texas Transportation Code that plainly reveals that the extent of the Department’s authority to regulate vehicular use on the Highways of this state only applies to commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses).  The same vehicles that are required to abide by the posted speed limit signage are those required to have motor carrier registration, insurance verification, and safety inspections

Exhibit 4.  Texas Transportation Code.

          Sec. 201.904. SPEED SIGNS. The department shall erect and maintain on the highways and roads of this state appropriate signs that show the maximum lawful speed for commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses). Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

     Please note that there is nothing mentioned regarding private vehicles not used for hire.

Also note that Section 201.904 is part of the Code that was enacted by the 74th Legislature in 1995, the same Legislature that enacted SB 3, 74th Legislature, Regular Session.

In Exhibit 5, please find four Texas Appeals Court cases that plainly reveals that there is no such license as a “Driver’s License” known to Texas law.  There are only three types of licenses mentioned in the Texas Driver’s licensing Statutes.  Operator’s License, Commercial Operator’s License and a Chauffeur’s License.

     Exhibit 5

Texas Appeals Court Rulings Regarding a “Driver’s License”. Page – Tex. 401

Claude D.CAMPBELL, Appellant,
v.
The STATE of Texas, Appellee.

No. 27245.

Court of Criminal Appeals of Texas.

Jan. 12,1985

Defendant was convicted of unlawfully operating a motor vehicle upon a public highway while his operator’s license was suspended.  The County Court, Panola County, Clifford S. Roe, J., rendered judgment, and an appeal was taken.  The Court of Criminal Appeals, Belcher, C., held that proof that defendant had driven an automobile while his driver’s license was suspended did not sustain allegations of charge that he had driven while his operator’s license was suspended.

Judgment reversed and cause remanded.

1. Automobiles Key 353

Upon a charge of operating- a motor vehicle upon a public highway while operator’s license is suspended, the state has burden of showing that defendant had been issued an operator’s license to drive a motor vehicle upon a public highway, that such license has been suspended, and that, while such license was suspended, defendant drove a motor vehicle upon a public highway.

2. Automobiles Key 352

Proof that defendant had driven an automobile while his driver’s license was suspended did not sustain allegations of charge that he had driven while his operator’s license was suspended.

3. Automobiles Key 136

There is in Texas no such license as a “driver’s license.”—- —-

No attorney on appeal for appellant.

Wesley Dice, State’s Atty., Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted, in the County Court Panola County, for unlawfully operating- a motor vehicle upon a public highway while his operator’s license was suspended, and his punishment was assessed at a fine of $25.

[1]Under such a charge, the state was under the burden of showing that there had been issued an operator’s license to appellant to drive a motor vehicle upon a public highway; that such license had been suspended; and that, while such license was at suspended, appellant drove a motor vehicle upon a public highway.

To meet this requirement, the state here relies upon testimony that appellant drove his pick-up truck upon a public highway in Panola County, on the date alleged, and that he drove said motor vehicle while his license was suspended

Page – Tex. 402

[2, 3]”This proof is insufficient to ‘sustain the allegations of the offense charged in the information because a driver’s license is not an operator’s license.  We have held that there is no such license as a driver’s license known to our law.  Hassell v. State, 149 Tex.Cr.R. 333, 194 S.W.2d 400; Holloway v. State, 155 Tex.Cr.R. 484, 237 S.W. 2d 303; and Brooks v. State, Tex.Cr.App., 258 S.W.2d 317.

Proof of the driving of an automobile while the driver’s license was suspended does not sustain the allegations of the information.  The evidence being insufficient to support the conviction, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

Page – 360 Tex.

Frank John CALLAS, Appellant,
v.
STATE of Texas, Appellee.

No. 30094.

Court of Criminal Appeals of Texas.

Jan. 7.1959.

Prosecution for driving motor vehicle on public road after operator’s license had been suspended. The County Court at Law, Potter County, Mary Lou Robinson, J., entered judgment of conviction and defendant appealed.  The Court of Criminal Appeals, Woodley, J., held that where testimony showed that only two persons were in or around truck at time defendant was apprehended and patrolman testified that the other person was not the driver of truck, and largely upon this testimony jury found defendant guilty, and after jury retired police officer filed complaint charging other person with driving motor vehicle with violation of restrictions imposed on his operator’s license and such other person was convicted upon his plea of guilty, defendant’s motion for new trial setting forth conviction of such other person should have been granted in order that defendant might have the benefit of evidence regarding conviction of other party in another trial.

Reversed and remanded.

Criminal Law Key 938(1)

In prosecution for driving after operator’s license had been suspended where testimony showed that there were only two persons including defendant in or around truck at time patrolman reached it and patrolman testified that other person was not driving panel truck, and after jury retired patrolman filed complaint charging other party with driving motor vehicle and he was convicted upon his plea of guilty, defendant’s motion for new trial should have been granted in order that he might, in another trial, have the benefit of evidence regarding conviction of other party.  Vernon’s Ann.Civ.St. art. 6687b, § 1(n).

McCarthy, Rose & Haynes, Amarillo, for appellant.

Lon Moser, County Atty., E. S. Carter, Jr., Asst. County Atty., Amarillo, State’s Atty., Austin, for the State.

WOODLEY, Judge.

The complaint and information allege that appellant drove a motor vehicle upon a public road “after the Texas Operator’s License of the said Frank John Callas had ***been suspended” and further alleged that appellant had received an extended period, of suspension “of said Texas Operator’s License*** “and that said suspension had not expired.

We have searched the record carefully and find no evidence that the license which had been suspended was a Texas Operator’s License, as alleged in the information.

If appellant was driving a motor vehicle, it was a panel truck used as a commercial vehicle in appellant’s business, the appropriate license for its operation being a Commercial Operator’s License, and not an Operator’s License.  See Art. 6687b. Sec. I (n), Vernon’s Ann.Civ.St.

This Court has held that there is no such license known to Texas law as a “driver’s license”.  See Hassell v. State, 149 Tex. Cr.R. 333, 194S.W.2d400; Brooks v. State, 158 Tex.Cr.R. 546, 258 S.W.2d 317.

There were but two persons in or around the panel truck.  One was Walter Schaff, who was seated in the driver’s seat when the patrolmen reached it.  Patrolman Kirkwood testified that Schaff was not driving the panel truck, and largely upon his testimony the jury found that appellant was the driver.

After the jury retired, Officer Kirkwood filed complaint charging Schaff with driving [Page – Tex 361] a motor vehicle in violation of restrictions imposed in his operator’s license.  Information was presented by the County Attorney and Schaff was convicted upon his plea of guilty.

Appellant’s motion for new trial setting forth the conviction of Schaff after the close of the evidence on appellant’s trial should have been granted in order that upon another trial appellant might have the benefit of the evidence regarding the conviction of Schaff.  Appellant’s motion for rehearing is granted; our former opinion herein affirming the judgment is withdrawn, and the judgment is now reversed and the cause remanded

Page – Tex. 317

BROOKS v. STATE. No. 26458.

Court of Criminal Appeals of Texas.

May 27, 1953

From a judgment rendered by the County Court, Culberson County, defendant appealed.  The Court of Criminal Appeals, Belcher, C. held that information, charging defendant with driving a motor vehicle upon a public highway while his “driver’s license” was suspended, charged no offense.

Reversed with directions.

Automobiles Key 351

Information, charging defendant with driving a motor vehicle upon a public highway while his “driver’s license” was suspended, charged no offense. Vernon’s Ann. Civ. St. art. 6687b, § 27.

—- —-

George W. Walker, Van Horn, for appellant.

Wesley Dice, State’s Atty., of Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted for the violation of Art. 6687b, § 27, V.A.R.C.S.; and his punishment was assessed at a fine of $50.

The information upon which this conviction was predicated alleged that appellant “did then and there unlawfully drive and operate a motor vehicle upon a public [Page – Tex. 318] highway, to-wit: U. S. Highway Number 80, situated within said county and state, while his, the said Keith Brook’s, driver’s license was suspended.”

In Hassell v. State, 149 Tex.Cr.R. 333, 194 S.W.2d 400, 401, we said:

“There being no such license as a ‘driver’s’ license known to the law, it follows that the information, in charging the driving of a motor vehicle upon a public highway without such a license, charges no offense.” See also Holloway v. State, Tex.Cr.App., 237 S.W.2d 303.

Because the information fails to charge an offense, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

Page Tex. 400

HASSELL v. STATE.

No. 23353.

Court of Criminal Appeals of Texas.

May 15,

1. Automobiles Key l37

Under Drivers’ License Act it is unlawful for any person to drive or operate a motor vehicle over a highway of Texas without having a license, either as an operator, a commercial operator or a chauffeur, but one holding a license as a commercial operator or chauffeur is not required to have an operator’s license.  Vernon’s Ann.Civ. St. art. 6687b, §§2,3,44.

2. Automobiles Key 351

Information alleging that defendant operated a motor vehicle upon public highway without a “driver’s license” charged no offense under Drivers’ License Act, since a driver’s license is not known to the law because the act only authorizes issuance of operators’ commercial operators’ and chauffeurs’ license and use of term “driver” interchangeably with term “operator” would not be authorized in view of definition in the act of term driver as meaning every person who drives or is in actual physical possession of a vehicle. Vernon’s Ann.Civ. St. art. 6687b, §§ 2, 3, 44.

Comissioners’ Decision.

Appeal from Hunt County Court; Wm. C. Parker, Judge.

W. Lee Hassell was convicted of operating a motor vehicle upon a highway without a license, and he appeals.

Reversed and prosecution ordered dismissed.

G. C. Harris, of Greenville, for appellant.

Ernest S. Goens, State’s Atty., of Austin, for the State.

DAVIDSON, Judge.

The conviction is for operating a motor vehicle upon a highway without a license; the punishment, a fine of $50.

By what is commonly referred to as the Drivers’ License Act, and appearing as Art. 6687b of Vernon’s Annotated Civil Statutes, the Legislature of this State provided for the licensing of operators of motor vehicles over the public highways of this State. Sec. 2 of Article II of the Act reads as follows:

“Drivers must have license.

“(a) No person, except those hereinafter expressly exempted, shall drive any motor vehicle upon a highway in this State unless such person has a valid license as an operator, a commercial operator, or a chauffeur under the provisions of this Act.

“(b) Any person holding a valid chauffeur’s or commercial operator’s license hereunder need not procure an operator’s license.

“(c) No person holding an operator’s, commercial operator’s, or chauffeur’s license duly issued under the provisions of this Act shall be required to obtain any license for the operation of a motor vehicle from any other State authority or department.  Subsection (c) of Section 4 of Article 911A and Subsection (b) of Section 4 of Article 911B, Revised Civil Statutes, is hereby repealed.”

Sec. 44 of Art. VI of the Act provides the penalty .for the violation.

Page Tex. 401

[1]It is by these statutes made unlawful for any person to drive or operate a motor vehicle over a highway of this State without having a license, either as an “operator,” a “commercial operator,” or a “chauffeur.  “One holding a license as a “commercial operator” or “chauffeur” is not required to have an “operator’s” license.

Certain exemptions and exceptions from the operation of the Act are provided in Sec. 3 of Art. II thereof.

The information upon which this conviction was predicated alleged that appellant “did then and there unlawfully operate a motor vehicle upon a public highway, to wit. State Highway No. 24, without a Driver’s License.”

It is insisted that the information charges no offense, because a “driver’s license” is neither recognized nor authorized to be issued under the Act and, by reason thereof, it constitutes no offense to drive a motor vehicle without such a license.

[2]Only three types of licenses are authorized or required under the Act. These are “operators,” “commercial operators,” and “chauffeurs,” and they are specially defined in the Act.  The term “driver”—-as used in the Act—is defined to be: “Every person who drives or is in actual physical control of a vehicle.  “In view of this particular definition of the term “driver,” it cannot be said that such term may be used interchangeably with or given the same meaning as the term “operator.”

There being no such license as a “driver’s” license known to the law, it follows that the information, in charging the driving of a motor vehicle upon a public highway without such a license, charges no offense.

Because of the defect in the information, the judgment is reversed and prosecution ordered dismissed.                                    

PER CURIAM.  The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

     Please be advised that Mr. Black does not now have nor has he ever had an Operator’s, a Commercial Operator’s License or a Chauffer’s License and demands that the City of Irving prove up the fact that he now has or has had in the past either of those licenses.

In Exhibit 6, please find excerpts from Texas Administrative Code that sheds more light regarding the responsibilities of the Texas Department of Public Safety

          Exhibit 6

  1. In regard to transportation, individuals and organizations affected by the Law must follow the Regulations found in the Texas Administrative Code that are written by the Department of Transportation and the Department of Public Safety.  (Austin Public Library Research Guides, Primary Sources.)

2.  Regarding the responsibilities of the Texas Department of 

     Transportation pertaining to the regulation of individuals, only

     those individuals who are Motor Carriers and those involved in the

     distribution and sale of motor vehicles comes under its authority. 

     (Texas Administrative Code, Title 43, Part 1, chapter 1, Rule 1.1)

  • Regarding the registration of motor vehicles, the only place in the

Texas Administrative Code where the registration requirements are

are in Title 37, Part 1, Chapter 4 – Commercial Vehicle

Regulations and Enforcement Procedures.  (Texas Administrative Code, Title 37, Part 1, Chapter 4) 

          4.  The Department of Public Safety is charged with the responsibility of enforcing registration requirements of commercial vehicles based on the Statutory provisions of the Texas Transportation Code, Chapter 502.  (Texas Administrative Code, Title 37, Part 1, Chapter 4, Subchapter C, Rule 4.31) 

  • The mission of the Texas Department of Public Safety regarding
  • traffic is to supervise traffic and regulate commercial and “for hire”  vehicles.  (Texas Administrative Code, Title 37, Part 1, Chapter 1, Subchapter A, Rule 1.2 (2). 

There is no mention of the regulation of non-commercial or “not for hire” vehicles mentioned in the Texas Administrative Code.  Mr. Black was not driving a commercial vehicle.

In Exhibit 7, Attached, please find Discovery items found while researching the offenses charged against Mr. Black.

Please see the Discovery Items Attached and made a part of this challenge.

If, after a close analysis of the Exhibits, the State of Texas proposes to proceed in the prosecution of these matters, MR. __________________ demands that he be informed regarding the Legislative Act, the Legislature and the Session that it was enacted that authorizes the Department of Transportation, the Department of Public Safety and the City of Irving to regulate the driving of vehicles that are not used for hire upon the roadways of Texas so long as that driving does not interfere with the rights or wellbeing of others or their property. 

Respectfully submitted,

Mr. ____________________ Date _________________

_______________________________________________ 

                                        Discovery

Made in the evaluation and clarification of the violation listed as:

JA051621    LP – NO LICENSE PLATE – MC, TRACTOR, TRA

Searched for “TEXAS – NO LICENSE PLATE – MC, TRACTOR, TRA” and found:

                       TEXAS TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE A. CERTIFICATES OF TITLE AND REGISTRATION OF VEHICLES

CHAPTER 504. LICENSE PLATES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 504.010.  ISSUANCE AND PLACEMENT OF LICENSE PLATE.  (a)  On payment of the prescribed fee, an applicant for motor vehicle registration shall be issued a license plate or set of plates.

(b)  Subject to Section 504.901, the department shall issue only one license plate or set of plates for a vehicle during the registration period set by rule.

(c)  The board may adopt rules regarding the placement of license plates for a motor vehicle, road tractor, motorcycle, trailer, or semitrailer.

Motor vehicle

49 CFR § 390.5T      Also mentioned below.

Motor vehicle means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Federal Motor Carrier Safety Administration, but does not include any vehicle, locomotive, or car operated exclusively on a rail or rails, or a trolley bus operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service.

Please be advised that MR._________________ was not driving a vehicle under the supervision of the Federal Motor Carrier Safety Administration and he is not a Motor Carrier.

Texas Transportation Code § 201.904

(In a nut-shell please find below the vehicles that are subject to regulation by the State of Texas Department of Transportation, the Texas Department of Public Safety, and or the City of Irving.)

“The department shall erect and maintain on the highways and roads of this state appropriate signs that show the maximum lawful speed for commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses).”

Please be advised that Mr. ____________________was not driving any of these types of vehicles.

Is Uber considered commercial driving?

Even though they’re personally owned, cars used to provide rides for UberLyft or one or the other rideshare companies are commercial vehicles when they’re in service. Google it up.

Searched for “Texas – compulsory safety standards for vehicles” and found:

TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE F. COMMERCIAL MOTOR VEHICLES

CHAPTER 644. COMMERCIAL MOTOR VEHICLE SAFETY STANDARDS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 644.001.  DEFINITIONS.  In this chapter:

(1)  “Commercial motor vehicle” means:

(A)  a commercial motor vehicle as defined by 49 C.F.R. Section 390.5, if operated interstate;  or

(B)  a commercial motor vehicle as defined by Section 548.001, if operated intrastate.

49 CFR § 390.5 – Definitions.

Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle – ………………

Motor Vehicle

49 CFR § 390.5T

Motor vehicle means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Federal Motor Carrier Safety Administration, but does not include any vehicle, locomotive, or car operated exclusively on a rail or rails, or a trolley bus operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service.

Please be advised that ___________________was not driving a vehicle under the supervision of the Federal Motor Carrier Safety Administration and he is not a Motor Carrier.

Searched for “Texas – compulsory safety standards for motor vehicles” and found:

TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE C. RULES OF THE ROAD

CHAPTER 548. COMPULSORY INSPECTION OF VEHICLES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 548.001.  DEFINITIONS.  In this chapter:

  • “Commercial motor vehicle” means a self-propelled or towed vehicle, other than a farm vehicle with a gross weight, registered weight, or gross weight rating of less than 48,000 pounds, that is used on a public highway to transport passengers or cargo if: ……………

NOTICE:  Sec. 548.001(1) is the only definition of any vehicle listed in

Chapter 548.001.  Definitions. In this chapter:

Please be advised that MR. __________________ was not driving a Commercial motor Vehicle.

Searched for “Texas – Compulsory maintenance of financial responsibility” and found:
TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE D. MOTOR VEHICLE SAFETY RESPONSIBILITY

CHAPTER 601. MOTOR VEHICLE SAFETY RESPONSIBILITY ACT

SUBCHAPTER A. GENERAL PROVISIONS

(5) “Motor vehicle” means a self-propelled vehicle designed for use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and not operated on rails.

Please be advised that Mr. ___________________was not driving a self-propelled vehicle that is designed to pull a trailer or a semitrailer nor was he driving a vehicle propelled by electric power from overhead wires and not operated on rails.

Searched for “Motor Vehicle” in the United States Codes of Law and found:

18 USC 31: Definitions

*Title 18—Crimes And Criminal Procedure;   

PART I—CRIMES

CHAPTER 2—AIRCRAFT AND MOTOR VEHICLES

(6) Motor vehicle.-The term “motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo.

(9) State.-The term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(10) Used for commercial purposes.-The term “used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.

Author: Jim Ingram

My interest in our constitutional rights was triggered by the events that happened at Ruby Ridge many moons ago. I have been wading thru all the information available from friends and associates who were want-to-be experts. Finally figured out that if I wanted to get at the roots of our problems I had to go to government sources and Supreme Court rulings relating to our problems.

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