Can A Judge Deny A Request For An Occupational Driver License In Texas?

One of the more troubling trends we are seeing in smaller counties in Texas is the denial of occupational driver license requests due to the judge considering a “bad driving record” or other reasons.  The troubling issue is that, if a person’s request for an occupational driver license is denied based on a bad driving record, then it basically stops that person’s ability to become gainfully employed and stops them from legally driving to and from work to support themselves and their families.  This article takes a deeper look at a judge’s discretion when it comes to denying and accepting occupational driver license requests.  The hope is that if you or a loved one has made an occupational driver license request and it has been denied, this article will help defend you against the arbitrary denial and what you can do to resolve it.  If you would like to discuss your occupational driver license requests with an experienced attorney after reading this article, feel free to contact our office today at 214-321-4105.

The Purpose of Occupational Driver License Laws

In order to understand the limitations of a judge and prosecutor’s objections when denying an occupational driver license request, you must first understand the policy behind the occupational driver license laws.  What is the purpose of allowing a person the ability to drive on an occupational driver license if their driver license has been suspended?  After all, they have already been deemed by The Texas Department of Public Safety to be such a bad driver that their driving privileges have been suspended or revoked.  Why let a person drive on the roadways at all?  These are the arguments that you are going to be up against when dealing with a prosecutor that objects to a person obtaining an occupational driver license.  You may also hear a judge make similar statements.  When you hear these arguments being made, you have to understand that they are improper for multiple reasons.  Some of the counter arguments to these sentiments are listed below for you to review and be ready to respond if the need arises.

Bad Driving Record

This is the most common reason we see used when judges and prosecutors are claiming that they have the ability to deny an occupational driver license request.  What the court needs to understand in very clear terms is that the person seeking the occupational driver license has already been punished for the bad driving record.  The fact that the person’s driving privileges have been suspended is evidence of that punishment.  In the United States and Texas, if this were a criminal proceeding we would refer to punishing a person twice for the same mistake as double jeopardy.  Occupational driver license requests and their hearings are not criminal proceedings, but the principles of punishing a person twice for the same thing is deeply engrained in our laws and jurisprudence.  Second, the statute that affords the court and prosecutor’s jurisdiction does not allow for the driving history to be a consideration.  This will be talked about more later in the article, but for the purpose of organizing the argument, a person’s criminal history can only be considered and used against a person requesting an occupational driver license when the license has been suspended due to 3 main categories of charges.  Those charges are as follows:

• • Drug Related Cases
  • Alcohol Related Cases
  • Manslaughter Related Cases

These categories will be fleshed out further in the statutes section below.

Public Safety Element – SR-22 Insurance Requirement

Another finer point to make with judges that are considering the public safety element of granting an occupational driver license is the insurance requirement.  If a judge continues to try to state that they are concerned about granting an occupational driver license due to a bad driving record, you must point out that the legislature has already considered the public safety concerns and addressed them by requiring each petitioner to obtain and maintain proof of insurance in the form of an SR-22 policy.  SR-22 insurance is a high-risk policy that has to be attached to the petition and verified prior to a judge granting an occupational driver license request.

The legislature understood the public safety concerns and balanced those concerns with the occupational driver license user’s need to support themselves.  The occupational driver license allows a person to financially support themselves during the suspension and the insurance requirement makes sure that if an accident does occur, it will be paid for by the insurance policy.  So the argument that is made is that the judge should not take into consideration the public safety issue related to a bad driving record because the statute already provides for the protection of the public safety concerns.  The legislature made it mandatory for a person applying for an occupational driver license to keep and maintain SR-22 Insurance throughout the entire period where they are using an occupational driver license.  If they fail to keep and maintain insurance, then the occupational driver license can be revoked.  By making the insurance requirement mandatory for the person using the occupational driver license as well as allowing the court to revoke the occupational driver license if it is not maintained, the public safety concerns have been met to the satisfaction of the Texas legislature.  To place any other public safety concerns on the person requesting an occupational driver license are outside of the jurisdiction of the court and should not be used as a reason for denial of the occupational driver license request.  For more information on SR-22 insurance, click here.

Essential Need

There is much confusion among judges and prosecutors about the requirement of essential need.  This is where it is important to understand why the legislature allows for occupational driver licenses in the first place.  That begins with the question, “what does the Texas legislature cares about most?”  Texas prides itself in having a robust and thriving economy.  Texas does not want able bodied people sitting at home that are capable of contributing to the economy and their communities.  Texas does not want people hindered by the government telling them that they can’t work when they are able to work.  Imagine for a second, a judge telling a person, that even though they are able bodied and capable of working that they cannot do it.  Is that judge going to pay your bills then?  Is that judge going to take your children to school or do your shopping for you?  It is completely contrary to Texas values.

This is why it is important to understand the requirement of essential need in an occupational driver license hearing.  Because once you establish essential need, the judge cannot deny your request for an occupational driver license.  The law states that the judge “shall” grant the request once essential need is established.  The word “shall” in the law means that the judge has no discretion.  It must be done.  Whether they like it or not.  So, what is essential need then?  Basically, to establish essential need, you need only prove one of four things.

1. Do you have a job?
2. If you don’t have a job, are you looking for employment?
3. Are you a student in school?
4. Do you need to travel to perform essential household duties?

If you can establish any of the four criterion above, then you have proven essential need.  This means your occupational driver license should be granted.  The judge does not have the discretion to deny the request based on a bad driving record, or they don’t like your job or whatever other reason they tender.  A prosecutor cannot object to your occupational driver license based on a bad driving record if essential need is established.  Remember why the Texas legislature created the laws that allow for occupational driver license requests.  We want people to work that can work.  We don’t want them on government services if they can support themselves.

What If You Don’t Have A Job, But Are Looking For One?

Now the most blowback you could receive is if you don’t currently have a job, but are looking for one.  Some judges will state that looking for a job isn’t good enough.  They will state that you need to have a job first.  This is not true and the statute does not support a judge’s belief that a job must be had before an occupational driver license can be granted.  You have to clearly state to the judge or prosecutor that you are “in the pursuit” of obtaining a job.  Why use the phrase, “in the pursuit?”  Because it tracks the language of the statute.  How do you establish being in the pursuit of obtaining a job?  Show the judge that you have job interviews lined up.  Show them that you have a profile on Indeed or other job websites and that you may need to travel to job interviews regularly.  If you establish that you are in the pursuit of employment, then you have established essential need and your occupational driver license request cannot be denied.  The actual essential need statute is listed in the statutes section below so you can take it to any hearing you may have to argue that you have established essential need in your request.

What If You Don’t Have a Job, But Are In Charge of The Household Duties?

Even if you are not going to obtain a job, you can still be entitled to an occupational driver license if you have essential household duties that need to be done.  For example, if you are a stay at home mother and responsible for taking the children to and from school.  Or if you are in charge of the grocery shopping.  Any other household duties that are considered essential must be considered by the judge.  And if they are deemed essential, then an occupational driver license has to be granted.

After Establishing Essential Need – Geography & Time Restrictions

Again, once you have established essential need, the judge must approve your occupational driver license.  But that does not mean that you are done with the process of obtaining an occupational driver license.  Next the judge has to establish reasonable limitations on your driving habits.  Remember that your driving privileges are still technically suspended.  An occupational driver license is only a limited use license that allows you to travel only for essential need. So the judge needs to determine two remaining elements to finalize their order allowing you to drive.

• GEOGRAPHY RESTRICTIONS:  Where do you need to travel in relation to your job or essential household duties?  In most courts that our attorneys file occupational driver license petitions, courts will limit the geography by counties.  For example, if you live in Dallas County and your job is in Rockwall County, then the judge will limit the geography to both counties.  This means you are restricted from driving in all other counties in Texas.  Each person is unique in their need for different geographical areas.  Make sure you have a list of counties ready for the judge to consider and why those counties are crucial to perform your job or to complete necessary household duties.
• TIME RESTRICTIONS:  Again, occupational driver licenses are to be used only for essential needs.  You cannot drive for any other purpose.  So it stands to reason that time limitations will apply to your use of the license.  This can be a bit of a complex issue for some judges to understand.  But it shouldn’t be.  Just make sure you are clear on how much drive time you need daily by outlining it on a weekly schedule.  Once this is done, you can advocate for either a log book or set drive time times based on your essential needs.  The log book and set drive times options will be outlined below.

Log Book Requests

Each person’s job and household duties vary.  So will their time need to travel.  In most courts, depending on the variations of drive time, an open time of no more than 4 hours will usually be permitted.  In order to establish that a person does not go over this amount of time, they will be required to keep a log book.  The log book will require the driver to keep track of when they start driving and when the end their trip.  The log book must also state the reason for the drive.  If a log book is not kept, then the occupational driver license can be revoked.  There are countless ways a judge can make the drive times complicated.  For example, we have seen judges set drive times between certain hours of the day and require a log book.  This is completely unnecessary.  If a judge sets specific drive times then there is no need for the log book.  If a judge states that  a person can only travel between 8am and 6pm, then it is understood that the person has 10 hours of drive time a day and should not be driving anytime outside of the window.

However, not all professions are that clean with their job schedules.  Imagine a home healthcare nurse that may be called in the middle of the night to assist with a terminally ill patient.  Nurses, real estate agents, Uber drivers, pizza delivery drivers, sales jobs, and many others are on the roadways at varying times throughout the day.  It is impossible to pin down the exact times they will need to travel to perform their work duties.  This is when log books should be requested.  The only issue to hash out is exactly how much time per day is needed.  The maximum time that will normally be given under a log book scenario is four hours unless it can be established that more time is needed during the hearing.  However, under no circumstances will a person be allowed more than twelve hours in a twenty four hour period.

Most counties that our occupational driver license attorneys file petitions in are auto log book counties.  Unless requested otherwise, the judges in these counties will grant four to twelve hours a day within the territorial limits of the county that the court is located.  Again, each case is different, but these general parameters can be relied for just about every county in North Texas.

Set Drive Times

Set drive times are a much easier prospect.  If a person has a set schedule it makes the process a bit more streamlined for judges that require hearings.  For example, if you drive to work at 7:00am and arrive at 8:00am.  You then get off work at 5:00pm and drive an hour home, then you can normally see a set drive time of 8:00am to to 10:00am in the morning and 5:00pm to 7:00pm in the evenings.  No log book would be needed.  So long as the person is driving within those drive times, they are in compliance with the limitations of the of occupational driver license.

Overview – Establishing The Big Four

Again, you have to establish the big three issues.  Number one being the most important.  After you establish number one, an occupational driver license has to be granted.  Those three issues are as follows:

1. Essential Need
2. Geography
3. Time
4.  Proof of Insurance (SR-22)

The Statutes – Texas Transportation Code Section 52 Subchapter L

The statutes used to support the opinions and arguments made in this article are listed below for your review.  If having a hearing on an occupational driver license where you are concerned the request will be denied, we suggest you print out this article with the statutes to prepare for the hearing.

Sec. 521.241.  DEFINITIONS.

In this subchapter:

(1)  “Essential need” means a need of a person to operate a motor vehicle:

(A)  in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person’s occupation or trade;

(B)  in the pursuit of an occupation or trade;

(C)  for transportation to and from an educational facility in which the person is enrolled; or

(D)  in the performance of essential household duties.

Sec. 521.244.  DETERMINATION OF ESSENTIAL NEED; HEARING AND ORDER.

(a) The judge shall hold a hearing on the petition if the petitioner’s license was suspended, revoked, or canceled following a conviction for:

(1)  an offense under Section 19.05 or Sections 49.04-49.08, Penal Code; or

(2)  an offense to which Section 521.342 applies.

(a-1)  If the petitioner’s license was suspended, revoked, or canceled for a reason other than a reason described by Subsection(a), the judge may hold a hearing on the petition or may make a determination of essential need based on the petition.

(d)  Except as provided by Section 521.243(c), the hearing on the petition may be ex parte.  The hearing may be held using electronic or telephonic means.

(e)  Subject to Subsection (f), if the judge determines the person is eligible for an occupational driver’s license and has an essential need, the judge shall enter an order granting the petition.  If the judge determines the person is ineligible for an occupational driver’s license or does not have an essential need, the judge shall enter an order denying the petition.

(f)  The judge may enter an order denying the petition based on evidence presented at a hearing by the attorney representing the state.  The judge may also enter an order denying the petition if the petitioner:

(1)  is unable to present evidence of financial responsibility under Chapter 601;  [NO INSURANCE]

(2)  has been convicted more than once in the 10years preceding the date of the petition of an offense to which Sections49.04-49.08, Penal Code, apply; [ALCOHOL OFFENSES] or

(3)  is subject to a revocation order under Section 521.252 or 521.253.  [DRUG OFFENSES].

(g)  An order granting or denying an application for an occupational driver’s license may not be appealed.

Sec. 521.248.  ORDER GRANTING LICENSE.

(a)  An order granting an occupational driver’s license must specify:

(1)  the hours of the day and days of the week during which the person may operate a motor vehicle;

(2)  the reasons for which the person may operate a motor vehicle;

(3)  areas or routes of travel permitted;

(4)  that the person may not operate a commercial motor vehicle;

(5)  that the person is restricted to the operation of a motor vehicle equipped with an ignition interlock device, if applicable;

(6)  that the person must submit to periodic testing for alcohol or controlled substances, if applicable;

(7)  that the person is required to attend alcohol dependence counseling, if applicable; and

(8)  that the person is required to submit to supervision to ensure compliance with conditions of the order, if applicable.

(b)  The person may not operate a motor vehicle for more than four hours in any 24-hour period, except that on a showing of necessity the court may allow the person to drive for any period determined by the court that does not exceed 12 hours in any 24-hour period.

(c)  An order granting an occupational driver’s license remains valid until the end of the period of suspension, revocation, or cancellation of the person’s regular driver’s license.

(d)  A person who is restricted to the operation of a motor vehicle equipped with an ignition interlock device may not be subject to any time of travel, reason for travel, or location of travel restrictions described by Subsection (a)(1), (2), or (3) or (b).

(e)  An order granting an occupational driver’s license may require the person to keep a travel log showing the date, time, and location of travel.  The court may require the person to show the travel log to demonstrate compliance with the conditions of the order.

(f)  The court shall give a copy of the order to the person and inform the person that they must comply with any requirements of the department for the issuance of an occupational driver’s license.

(g)  An order issued under this section may be modified at any time by the court without a hearing or payment of a filing fee.  The issuance date of the order is not changed by a modification.  If the order is modified, the court shall deliver a certified copy to the person and to the department.