Several members of our department are saying that the revised DWLI statute does *not* apply to someone's license if the only reason it is "still" suspended is the failure to pay an administrative fee. They claim that DPS told them this (which is my next email), but I can find no such language. The statute seems clear - if the license is invalid for any reason, it's DWLI (different from expired, or no DL). I can't find a crafted exception that says "if it's just a fee, it's not DWLI. My stance is that if the DL doesn't come back "CLEAR", then it's not, in fact, clear. Seems easy enough...

Anyway, aside from the arguement of "Does everyone who's DWLI need to be arrested" (no), is there case law somewhere since the new combined DWLI statute went into effect that says "It's not DWLI if they're only suspended for non-payment of an administrative fee?"

Mike

I'm not sure about "DWLI" but DPS may be relying upon Allen v. State, 48 S.W.3d 775 (Tex.Crim.App. 2001) which held that a Driving While License Suspended conviction cannot be based upon a driver's failure to pay a reinstatement fee once the suspension period has ended.

I think Barry's right. I remember we got a letter from the DPS to that effect.

The Texas Court of Criminal Appeals found in the Allencase that a DL with an ALR suspension is suspended only for the duration of the assessed suspension. The fact that the driver fails to pay the reinstatement fee of $125 does not cause, according to the court, the DL to remain suspended. So once the driver's statutory suspension period expires, driver's DL is valid--fee or no fee--at least until it expires. Then if the driver does not pay the fee owned, he can't get the DL renewed. So he is driving without a license.

If you have questions, contact Becky Blewett at DPS (512-424-200 x5231). She is an expert at this stuff. Note that the Allen case only applies to ALR suspensions.

Janette Ansolabehere
Senior Assistant General Counsel
DPS

Was not the express purpose of legislatively changing DWLS to DWLI to avoid the application of the Allen case? I may have been asleep at the wheel here, but someone on this list may be able to put my mind at ease.

The failure to pay the $125 sec. 724.046 fee is subject to prosecution for DWLI under (a)(3) of 521.457 once the license has expired if the license expired during the period of suspension (as that term was delineated in Allen). Thus, where it is reported that the reinstatement fee has not been paid it is important for an officer to inquire about the date of expiration too. But, if the license expired after the 180 day (or two year) suspension, then presumably the driver would have had to apply for renewal and had it denied in order to be prosecuted under (a)(4). But, even if the driver never applies for renewal, maybe he is still considered to be the subject of an order that prohibits him from obtaining a license and thus subject to prosecution under 521.457 (b)?

It does not appear to me that a person whose suspension has ended, but whose license has not expired falls within the DWLI statute (even as amended) because (a)(2) still refers to "during a period that the license is suspended" and the meaning of that phrase was established in Allen. In other words, I do not think SB582 necessarily changed the result in Allen and the bill analysis does not specifically refer to Allen or any need to change "during the period that the license is suspended". Instead, there remain two classes of drivers, those who were unfortunate enough to have their expiration date fall during the suspension period, and those who are smart enough not to make themselves subject to prosecution under (a)(4) (by actually having renewal denied). One issue might be whether the orders being issued by DPS must (or do) state that the person is prohibited from obtaining a license (even after expiration of the suspension) and whether an order prohibiting renewal is the in fact an order prohibiting from obtaining. There do not appear to be any cases addressing these issues.

My question is this. You stop a guy, his license was suspended,, but the suspension has expired. He has yet to pay the reinstatement fee. I know you cant arrest for DWLI, but isnt he driving without a license?. I have been writing them no D/L tickets, but was recently told im wrong, that they arent commiting an offense. Doesnt seem right to me thought, if they arent required to pay the reinstatement fee before they can drive again, whats the incentive to pay it before it expires?

Ah, Allen again. By its own terms, Allen only applies to ALR suspensions. There are other suspensions for failure to pay a fee, such as the surcharge fees under Transportation Code ch. 708, that remain in place until the fee or penalty is paid. For example, Section 708.152 (Failure to Pay Surcharge) states that "a license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs." So a person who has a surcharge-related suspension would be committing DWLI if he is driving.

Our understanding of Allen is that if the driver has had an ALR suspension which has been served but who had not paid his reinstatement fee, he is not considered "suspended" for purposes of the DWLI statute. If he fails to display his driver license, then the officer can cite him for"Failure to Display Driver License" which is what the Court was referring to in the Allen case. She didn't have her actual DL with her and she hadn't changed the address as required by Chapter 521, so she could be charged with those offenses, but not DWLI. I believe that this must be what the previous poster was referring to when he mentioned a DPS interpretation. Contact me at DPS HQ if you have questions.

Janette Ansolabehere
Texas Department of Public Safety
Office of General Counsel