Extraconstitutional #3 – Are Texans Compelled to be Inspected for Emissions?

[Download a PDF of this article]

“The streets of the cities of this country belong to the public. Primarily, every member of the public has the natural right to the free use of such streets in the normal pursuit of his private or personal business or pleasures. In his errands of pleasure, he may use these highways to his heart’s content…[t]hese rights, being inherent to him as an American citizen, cannot be taken away from him, or unreasonably restricted or regulated. Subject to this freedom of personal conduct inherent in the individual, however, the control of the streets and the cities rests in the Legislature, acting as trustee for the public. The right of the public at large to the free use of the streets is paramount to the natural right of the individual, and the Legislature, in its capacity as trustee, has the power to reasonably regulate this use, to the end that the public shall enjoy the maximum benefits thereof. If in its free use the right of the individual citizen conflicts with the paramount rights of the public at large, then the rights of the one must yield to those of the many.”

City of San Antonio v. Fetzer, No. 6806 (1922)

 

questioning-the-texas-inspection-sticker

 

Years ago, I was issued a ticket for allegedly violating Texas Transportation Code § 548.602(a) on the grounds of NO VALID INSPECTION CERTIFICATE [FAILURE TO DISPLAY/EXPIRED INSPECTION CERTIFICATE]. Lower on down the ticket, it said the following:

 

IMPORTANT MESSAGE

Annually traffic law violations are recorded as a factor in about 85% of the rural traffic accidents in Texas. Approximately 60% of the traffic deaths in Texas occur on rural highways. The enforcement actions taken against you and any subsequent court actions are intended to secure compliance with the traffic laws by you and all other users of the highways. Failure to comply with your written promise to appear in court as made on this citation will constitute a separate offense with which you may be charged and result in warrants being issued for your arrest. The issuance of arrest warrants will make you subject to entry into the wanted persons files of this Department. Failure to appear in court or failure to satisfy a judgement ordering the payment of a fine and cost in the manner ordered by the court may result in the denial or renewal of your driver’s license.

 

Those first two sentences are wonderfully rich, given that the issuing officer initiated the traffic stop within the Greater Austin metro area. In truth, this “important message” is anything but, since it appears to be a standard boilerplate that had nothing at all to do with the charge I was being prosecuted under.

As to the written promise to appear, the officer told me that I must sign the ticket, and upon questioning him as to what he would do if I chose not to, he told me that he would arrest me, impound my car, and bring me before a magistrate. The only honest sentences in this “important message” are that the enforcement actions are intended to secure compliance with the TTC, as well as the issuance of an arrest warrant would necessarily entail being entered into their wanted persons database.

Thankfully, there was a statutory remedy in TTC § 548.605 that said the court shall dismiss the charge provided that the “defect” was “remedied” quickly enough. Once I had obtained a Texas Vehicle Inspection Report for $30, I proceeded to the Williamson County Cedar Park Annex in order to see the justice of the peace who was assigned to my case, yet I never saw her. Instead, I only dealt with a bureaucrat, and upon sliding the report underneath the bullet-proof glass, I was handed a one-page case summary that indicated my case had been promptly dismissed because I had produced “proof of compliance” – no additional fees or fines were extorted from me.

What was so gosh darn important that placed me in real danger of being arrested for not signing the ticket? After all, TTC § 548.602(a)(1) says:

 

“After the fifth day after the date of expiration of the period designated for inspection, a person may not operate…a motor vehicle registered in this state unless a current and appropriate inspection certificate is displayed on the vehicle…Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1069, Sec. 15, eff. June 19, 1997; Acts 1999, 76th Leg., ch. 1189, Sec. 37, eff. Sept. 1, 1999.”

 

Let’s now look at the history of the legislative act. According to the Acts of the 74th Legislature Ch. 165 § 1 (aka, SB 971), the phrasing for § 548.602 is exactly the same, yet it refers to Vernon’s Annotated Civil Statutes Article 6701d §§ 140(e) & 140A(c). The 1948 edition of the V.A.C.S. only has an Art. 6701d § 140, which says:

 

“No person shall drive or move on any highway any motor vehicle, trailer, semitrailer, or pole trailer, or any combination thereof unless the equipment upon any and every said vehicle is in good working order and adjustment as required in this Act and said vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.”

 

Wait, isn’t that awfully different from what § 548.602 said? How did they go from encouraging “good working order,” assuming that a determination could be made after an accident, to demanding inspection certificates? According to the infamous 1995 Revisor’s Report, it corroborates with the Texas legislature’s SB 971 with regard to the V.A.C.S. “source law” citation, but then the Revisor claims that Art. 6701d §§ 140(e) & 140A(c) both say instead, respectively, that:

 

“After the fifth (5th) day following the expiration of the period designated for the inspection, no person shall operate on the highways of this State any motor vehicle registered in this State unless a valid certificate of inspection is displayed thereon as required by this Section. Any peace officer who shall exhibit his badge or other signs of authority may stop any vehicle not displaying this inspection certificate on the windshield and require the owner or operator to produce an official inspection certificate for the Vehicle being operated. It is a defense to a prosecution under this section that a valid inspection certificate for the vehicle is in effect at the time of the arrest.”

“After the fifth day following the expiration of the period designated for the inspection, a person may not operate a commercial motor vehicle registered in this state unless it is equipped as required by the federal safety regulations and displays a valid certificate of inspection issued under the program established under this section.” [emphasis added]

 

Okay, at this point, even I have to ask, is there a more current edition of the V.A.C.S.? I ask this question because the sections quoted as the “source law” in the Revisor’s reports are noticeably different from the 1948 V.A.C.S. edition. The sheer gap between 1948 – 1995 is quite uncomfortable, to say the least.

Now, it would seem to be the case that the statutory code I was charged with violating has been repealed, sometime after I received the citation. According to the current version of the TTC’s Chapter 548, § 548.602 is completely absent. So, what would cause that section to go missing? On the Two Steps, One Sticker’s About page, it says:

 

“As a result of House Bill 2305 passed during the 83rd legislative session (2013), the State of Texas no longer issues inspection stickers and has transitioned to a ‘Two Steps, One Sticker’ vehicle inspection and registration program. Your registration sticker serves as combined proof of registration and inspection. Beginning March 1, 2016, you will have 90 days to complete the Two Steps. In order to renew on time, your vehicle must pass inspection no earlier than 90 days before your registration expires.” [emphasis added]

 

Governor Perry signed HB 2305 three months after my case had been dismissed. From what I can tell, the most significant change that was made was that the mode of enforcement for the emissions inspection had been altered, namely, from an inspection sticker-based enforcement (what my ticket was about) to a registration-based enforcement (the current statutory law). This change was a noticeable reform to TTC § 502.047, which is the legal requirement for emissions inspections; prior to the passage of HB 2305, § 502.047(a) said:

 

“The Department of Public Safety shall ensure compliance with the motor vehicle emissions inspection and maintenance program through a vehicle inspection sticker-based enforcement system except as provided by this section or Section 548.3011. Subsections (b) – (e) apply only if the United States Environmental Protection Agency determines that the state has not demonstrated, as required by 40 C.F.R. Section 51.361, that sticker-based enforcement of the program is more effective that registration-based enforcement and gives the Texas Commission on Environmental Quality or the governor written notification that the reregistration-based enforcement of the program, as described by those subsections, will be required. If Subsections (b) – (e) are made applicable as provided by this subsection, the department shall terminate reregistration-based enforcement of the program under those subsections on the date the United States Environmental Protection Agency gives the Texas Commission on Environmental Quality or a person the commission designates written notification that reregistration-based enforcement is not required for the state implementation plan.” [emphasis added]

 

Presently, § 502.047(a) now says:

 

“Except as provided by Chapter 548, the department and the Department of Public Safety shall ensure compliance with the motor vehicle inspection requirements under Chapter 548, including compliance with the motor vehicle emissions inspections and maintenance program under Subchapter F of that chapter, through a vehicle registration-based enforcement system.”

 

This indicates that HB 2305 did indeed change the mode of enforcing inspections for emissions, from inspection sticker-based to registration-based. Much like how the coercive medical insurance is tied to the hip of the federal income tax, emissions inspections are tied to the hip of vehicle registration; in other words, if you are not required to register a vehicle, then you are not required to be inspected for emissions.

Even the statutory remedy of § 548.605 has now been altered to reflect this new situation; as further evidence demonstrating the wonderful beneficence of reformism, § 548.605(b) now says:

 

“A person commits an offense if: (1) the person operates in this state a vehicle for which the certification was provided under Section 548.256(b); and (2) the vehicle is not in compliance with the applicable inspection requirements under this chapter, Chapter 382, Health and Safety Code, or the department’s administrative rules regarding inspection requirements.”

 

So, the “offense” has now been transferred from § 548.602 (now abolished) to § 548.605, the entirety of chapter 382 from the Health & Safety Code (the 1989 Texas Clean Air Act), as well as Title 37 of the Texas Administrative Code (the Texan equivalent to the Code of Federal Regulations; in other words, the regulatory “laws” for the fourth branch of government). This is rather enlightening when you consider that 40 C.F.R. § 51.361 and the federal Environmental Protection Agency used to be a deciding factor when it came to Texas emissions inspections, which are now co-enforced by the Department of Public Safety, the Department of Motor Vehicles, and the Texas Commission on Environmental Quality.

To recap, emissions inspections are now built into vehicle registration in terms of the mode of enforcement. They used to be conducted under the auspices of a federal administrative agency, but now they are done by three Texas administrative agencies. Granted, the only real upshot here is that the likelihood of anyone being ticketed regarding a missing or “defective” inspection sticker on their windshield is now zero, simply due to the fact that the vehicle registration sticker is prima facie evidence of the vehicle passing its emission inspection.

Yet, § 548.605(c) does empower officers to see a vehicle inspection report on demand; briefly put, instead of having to update an emissions inspection sticker annually, now licensed drivers are required by the TTC to produce a vehicle inspection report at the drop of a hat for their registered vehicles. Can you say, “Papers, please? May I see your papers?

Constitutionally speaking, an argument favoring an individual right to travel unencumbered by legislative enactments could be based upon Article I  §§ 19 and 29 of the Texas Constitution as well as the Comity Clause (Art. IV § 2 cl. 1) of the United States Constitution. Each of them say, respectively, that:

 

“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.”

“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.”

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

 

In essence, the crux of this argument is that emissions inspections are at least a form of disenfranchisement against the privileges and immunities of the Citizens in the several States, which includes Texas. If, indeed, emissions inspections disenfranchises Texans (or even deprives them of their lives, liberties, property, privileges, or immunities), then TTC §§ 548.605 & 502.047, as well as all of their relevant enforcement and penalty sections, are void. To better understand the applicability of the Comity Clause and the Texas Bill of Rights here, feel free to read my primer on state citizenship.

Whether any right to travel may have been respected by the Texas government, if not also explicitly recognized by its constitution, this much is certain – travelling on the public roads has now been fundamentally regulated to the point where it has effectively become a legal privilege that is bestowed upon Texans by the State. More revealed evidence in the future will either confirm or deny this conclusion of mine, but in the meantime, I think it is relatively safe to say that your right to travel has been infringed upon by emissions inspections.


Postscript: Be sure to visit the Right to Travel Bibliography, which will be updated as original documentation becomes available throughout the course of this open-source investigation.

3 thoughts on “Extraconstitutional #3 – Are Texans Compelled to be Inspected for Emissions?

  1. Pingback: Extraconstitutional #4: Are Texans Obliged to Insure Their Automobiles? - The Last Bastille Blog

  2. Pingback: Extraconstitutional #4: Are Texans Obliged to Insure Their Automobiles? • FPRN Radio

  3. Pingback: Extraconstitutional #6: Who Pays to Build the Roads? - The Last Bastille Blog

Leave a Reply

Your email address will not be published. Required fields are marked *