Prove it! Financial Responsibility
Pleading and Proving Insurance Cases in a Post-Arias world
I.
II.
Introduction
a. Learning Objectives
i. Understand the statutory basis for the crime of failing to maintain financial
responsibility and its exceptions;
ii. Describe the differences between exceptions and affirmative defenses as well as
how each effects the State’s burden of proof; and
iii. Draft and prosecute complaints for failure to maintain financial responsibility
charges properly in light of recent precedent.
The Statutory Basis for Failing to Maintain Financial Responsibility and its Exceptions
a. Texas Transportation Code § 601.051 – The Requirement of Financial Responsibility
i. A person can’t drive unless financial responsibility is established for that vehicle
through:
1. An insurance policy
2. A surety bond filed under § 601.121
a. A bond filed with The Department of Transportation with:
i. two sureties each owning property in the state
ii. Conditions for payment in amounts and under the same
circumstances as required under an insurance policy
iii. Can’t be cancelable before the sixth day after the date
the department receives written notice of cancellation
iv. Including a fee and approved by the department
b. If filed correctly – the Department of Transportation will issue
the holder a certificate of compliance.
c. Notice of the bond is filed in the office of the county clerk of the
county in which the real property is located.
3. A deposit under § 601.122 or § 601.123
a. Section 601.122 –
i. A person can just file $55,000 with the Comptroller in
cash or securities
ii. Comptroller will issue a certificate of compliance
b. Section 601.123
i. Filing a $55,000 deposit with the County Judge of the
county in which the car is registered in cash or cashier’s
check.
ii. The County Judge shall issue the person a certificate of
compliance
4. Self-insurance under § 601.124
a. A person who owns more than 25 vehicles can qualify as a selfinsurer if:
i. The person applies; and
ii. The Department of Transportation is satisfied that the
person has and will continue to have the ability to pay
judgments against them
b. If qualifies – the Department will issue a certificate of selfinsurance
i. Person must supplement the certificate with an
agreement to pay judgments in the same amount as an
insurer
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III.
IV.
c. Department of Transportation can cancel the certificate of selfinsurance after notice and hearing.
b. Texas Transportation Code § 601.052 – Exceptions to Financial Responsibility
Requirement
i. You don’t have to have insurance for a car that:
1. Is a former military vehicle at least 25 years old
2. Is used ONLY for exhibitions, club activities, parades and other public
interest functions and NOT for regular transportation
3. If the owner files an affidavit with the Department of Transportation
stating the vehicle is a collector’s item and only used as above
4. Is a neighborhood electric vehicle or golf cart
5. Has a title in the name of a volunteer fire department
a. This only exempts the fire department – not the individuals
driving the vehicle.
Arias v. State, 477 S.W.3d 925 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
a. Facts and Procedural History:
i. An officer observed Arias speeding and executed a traffic stop.
ii. The officer asked Arias for proof of financial responsibility. Arias had none.
iii. Arias was charged with failure to establish financial responsibility and the case
was tried before a jury in municipal court.
iv. Arias moved for directed verdict at the close of the State’s case on the basis that
the State had not negated the statutory exceptions to the requirement of financial
responsibility found in § 601.052 of the Transportation Code.
1. The motion was denied.
v. Arias was found guilty and assessed a fine of $175 plus court costs.
vi. Arias appealed to county court. The judgment was affirmed.
b. Arias presented three issues on appeal - all revolving around whether the State was
required to negate the exceptions to the financial responsibility requirement:
i. The trial court erred in denying his motion for directed verdict
ii. The court erred in overruling his objection to the jury charge and request to
include the exception
iii. The evidence was legally insufficient to support the verdict because the State did
not present evidence negating the exceptions.
c. The question on appeal boils down to: Are the exceptions to the requirement for Financial
Responsibility truly exceptions or instead are they affirmative defenses?
Exceptions vs. Affirmative Defenses
a. Why it Matters: The State’s Burden
i. Exceptions
1. Proving that exceptions do not apply is an ELEMENT of the offense.
a. See Texas Penal Code § 2.02(b):
i. The prosecuting attorney must negate the existence of an
exception in the accusation charging commission of the
offense and prove beyond a reasonable doubt that the
defendant’s conduct does not fall within the exception.
b. Reference cases:
i. McElroy v. State, 720 S.W.2d 490, 493 (Tex. Crim. App.
1986).
ii. Baumgart v. State, 2015 WL 3986153, *2 (Tex. App.—
Houston [14th] 2015, pet ref’d)
iii. Bell v. State, 137 S.W. 670, 671 (Tex. Crim. App. 1911)
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2. Example: Texas Transportation Code § 545.051: Driving on Right Side
of the Roadway
a. A driver on a road having four or more lanes and providing for
the two way movement of vehicles may not drive left of the
center line of the roadway except:
i. As authorized by a traffic-control device;
ii. When an obstruction necessitates moving the vehicle left
or right and the operator yields to vehicles posing an
immediate hazard that are traveling in the proper
direction on the unobstructed portion; or
iii. When turning left from or on to the highway.
ii. Defenses
1. Defendant bears the initial burden to produce some evidence supporting a
defense. Then, the burden shifts to the State to disprove the defense
beyond a reasonable doubt.
2. In other words: The Defendant bears the burden of production; the State
bears the burden of persuasion.
a. See Penal Code § 2.03:
i. The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging
commission of the offense.
ii. The issue of the existence of a defense is not submitted
to the jury unless evidence is admitted supporting the
defense
iii. If the issue of the existence of a defense is submitted to
the jury, the court shall charge that a reasonable doubt on
the issue requires that the defendant be acquitted.
b. Reference Cases:
i. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App.
1991)
ii. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
2003).
3. Example: Self Defense (Penal Code § 9.31):
a. A person is justified in using force against another when and to
the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other’s use or attempted
use of unlawful force. The actor’s belief that the force was
immediately necessary as described by this subsection is
presumed to be reasonable if the actor:
i. Knew or had reason to believe that the person against
whom the force was used:
1. Unlawfully and with force entered or attempted
to enter the actor’s habitation, vehicle, or place
of business
2. Unlawfully and with force removed or attempted
to remove the actor from the actor’s habitation,
vehicle, or place of business
3. Was committing or attempting to commit an
Agg. Kidnapping, Murder, Sex. Assault, Agg.
Sex. Assault. Robbery, or Agg. Robbery.
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ii. Did not provoke the person against whom the force was
used; and
iii. Was not otherwise engaged in criminal activity, other
than a class c misdemeanor
b. Telling the Difference:
i. Under the Penal Code §§ 2.02 & 2.03 exceptions and defenses found in the penal
code should be labeled.
1. Exceptions by the phrase: “it is an exception to the application of…”
2. Defenses by the phrase: “it is a defense to prosecution…”
a. Section 2.03 specifically states that a defense not so labeled will
still have the procedural and evidentiary consequences of a
defense.
ii. Outside the Penal Code – things get more complicated:
1. Generally when things are labeled as an exception they are treated as
such. However, when:
a. an exception is in a separate section from the provision that
states the offense; and
b. a prima facie case can be made without proof negating the
exception;
2. Then courts will not require the state to negate the exception (finding the
so-called exceptions to be defenses instead.)
3. Courts may also consider whether or not the matter is one “peculiarly
within the knowledge of the defendant”
a. Such matters support a defensive theory
iii. For Financial Responsibility: the Arias analysis
1. The penal offense for failing to have financial responsibility is in
§ 601.191 of the Texas Transportation Code; the so-called exceptions are
in § 601.052
a. The exceptions for the requirement for financial responsibility
are in a separate SUBCHAPTER
2. The violation in § 601.191 makes reference to § 601.051, but does not
reference § 601.052 or include any of the so-called exceptions found
there.
a. There is no need to negate the exceptions listed in § 601.052 to
prove the elements of the offense in § 601.191.
b. They are not a necessary part of the definition nor the description
of the offense
3. Finally, the defendant would be more likely than the State to know
whether or not the defendant falls within an exception.
4. Per the court in Arias, the State is not required to negate the exceptions
listed in § 601.052 as an element of the offense –
a. They are Defenses NOT exceptions.
iv. Case References:
1. Arias v. State, 477 S.W.3d 925 (Tex. App.—Houston [14th Dist.] 2015,
no pet.).
2. Bragg v. State, 740 S.W. 2d 574 (Tex. App.―Houston [1st Dist.] 1987,
pet. ref’d).
3. Chase v. State, 448 S.W.3d 6 (Tex. Crim. App. 2014).
4. Baumgarten v. State, 2015 WL 3986153, *2 (Tex. App.―Houston [14th
Dist.], pet. ref’d).
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V.
Drafting and Proving it – Financial Responsibility
a. Complaint and Charge Language
i. Do not need to include the exceptions in the complaint at all
1. Do not need to include the exceptions in the charge unless and until one
is raised by the defendant
ii. Just need to include the statutory elements found in Texas Transportation Code
§§ 601.191 and 601.051 (incorporated by reference into § 601.191).
1. Section 601.051 –
a. A person may not operate a motor vehicle in this state unless
financial responsibility is established for that vehicle through:
i. a motor vehicle liability insurance policy that complies
with Subchapter D;1
ii. a surety bond filed under Section 601.121;
iii. a deposit under Section 601.122;
iv. a deposit under Section 601.123; or
v. self-insurance under Section 601.124.
2. Section 601.191 –
a. A person commits an offense if the person operates a motor
vehicle in violation of Section 601.051.
b. Except as provided by Subsections (c) and (d), an offense under
this section is a misdemeanor punishable by a fine of not less
than $175 or more than $350.
c. If a person has been previously convicted of an offense under
this section, an offense under this section is a misdemeanor
punishable by a fine of not less than $350 or more than $1,000.
d. If the court determines that a person who has not been previously
convicted of an offense under this section is economically unable
to pay the fine, the court may reduce the fine to less than $175.
b. Practice:
i. On the next page – fill in the lines to draft the complaint. It doesn’t have to be
fancy!
1. Don’t forget:
a. Venue facts
b. Date and identity
c. Substantive elements
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Ticket Number:
Violation Code:
17000001 Cause Number: 123456789
04920 FAILED TO MAINTIAN FINANCIAL REPONSIBILITY
§
§
§
THE STATE OF TEXAS
VS.
JOE FAKE FAKERTON
IN THE MUNICIPAL COURT
CITY OF IMAGINATION, TEXAS
COMPLAINT
THE STATE OF TEXAS
CITY OF IMAGINATION
§
§
§
IN THE NAME AND BY
THE AUTHORITY OF
THE STATE OF TEXAS:
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do
believe that
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________
Against the Peace and Dignity of the State.
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c. Example:
Ticket Number:
Violation Code:
17000001 Cause Number: 123456789
04920 FAILED TO MAINTIAN FINANCIAL REPONSIBILITY
§
§
§
THE STATE OF TEXAS
VS.
JOE FAKE FAKERTON
IN THE MUNICIPAL COURT
CITY OF IMAGINATION, TEXAS
COMPLAINT
THE STATE OF TEXAS
CITY OF IMAGINATION
§
§
§
IN THE NAME AND BY
THE AUTHORITY OF
THE STATE OF TEXAS:
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one
Joe Fake Fakerton on or about Thursday, March 23, 2017 and before the making and filing of this
complaint, within the territorial limits of the City of Imagination, Texas,
Did operate a motor vehicle without maintaining financial responsibility in the minimum amount
required by law and did not produce evidence of financial responsibility when asked to do so by a
peace officer or a person involved in an accident with said defendant.1
Against the Peace and Dignity of the State.
1
Section 601.053 states that a person must provide evidence of financial responsibility to a peace officer or to a
person involved in an accident with them upon request. This section also states that if you don’t show financial
responsibility upon such a request and one of the listed exceptions does not apply, then you are presumed to be in
violation of the law requiring financial responsibility. Since the law requires dismissal if the defendant can provide
proof that they were in fact covered at the time of the citation or accident, this presumption rarely is needed. Tex.
Transp. Code § 601.193.
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