Texas Register
(29 TexReg 10467). These rules will
be republished.
Chapter 708 of the Texas Transportation Code grants the department the
authority to adopt rules to implement the Driver Responsibility Program. This
program was created during the 78th Legislative Session and requires the department
to assess fees based on an individual's driver history. The program has two
major components, a point system and a conviction surcharge system. Individuals
are required to pay the assessed fee, which ranges from $100 to $2000, every
year for three years.
The statute specifically requires the department to establish rules regarding
the acceptance of installment payments. The department has contracted with
a vendor to process the surcharge payments. As such, the vendor, acting on
behalf of the department, will accept installment agreements to the extent
outlined in this rule. This rule will provide necessary information to the
general public regarding the use of a vendor and the acceptance of installment
agreements under the Driver Responsibility Program.
The department accepted written comments on the proposed rules through
March 10, 2005. Written comments were submitted by Marc Fellman, a student
attorney with the University of Texas School of Law Criminal Defense Clinic.
The department also received correspondence from Rick Habecker of Cedar Park,
supporting the Driver Responsibility Program and encouraging the department
to offer installments agreements. During the comment period, the department
also received input from the State Auditor's Office pertaining to the text
of the proposed rules.
At the request of the Texas Criminal Defense Lawyers Association, a public
hearing was conducted on March 10, 2005. Comments were received from Richard
Segura, an Austin area attorney, and Marc Fellman.
The substantive comments, as well as the department's responses thereto,
are summarized below:
Comment: The Notice published on November 12, 2004 states that the points
surcharge is based on Class C traffic offenses. However, the moving violations
adopted by the department include Class C offenses plus other more serious
offenses. This is not explained.
Response: The preamble to the proposed rule contains a brief and generalized
synopsis of the Driver Responsibility Program. The department is confident
that the information contained in the original publication provided sufficient
notice to the public regarding the nature and content of the proposed rules.
Comment: The Notice indicates no fiscal implications to the State as a
result of these rules. It is difficult to understand how this can be so since
the Fiscal Note explaining HB 3588 explains considerable revenue is expected
to be generated as a result of the surcharge fees for the State.
Response: The purpose of the proposed rules is to provide general information
to the public regarding the use of a vendor and the acceptance of installment
agreements. No fiscal impact with regard to the revenue generated by the Driver
Responsibility Program is anticipated as a result of the adoption of the proposed
rules.
Comment: The Notice indicates no fiscal implications to local economies
and local government as a result of these rules. This statement does not take
into account the direct costs of enforcement that will be passed onto local
economies as a result of enforcing the rules, in particular the acceleration
for a missed payment and licensure suspension. The predictable result of suspending
licenses will be an increase in arrests for Driving While License Suspended
which will in turn increase costs to local jails and County and Municipal
Courts.
Response: The department disagrees with this comment. Proposed §15.162
provides general information regarding installment agreements and advises
the public what steps must be taken to enter into an installment agreement,
when payments are due and what constitutes a minimum payment. Whether or not
an individual enters into an installment agreement has no direct fiscal impact
on local economies or local governments. The overall effect of enforcing the
provisions of the Driver Responsibility Program, including the potential increase
in the number of arrests for Driving While License Invalid, was considered
by the Texas Legislature prior to the enactment of HB 3588.
Comment: The failure to properly notify the public as to impact of these
rules affects the quality of the comments received and the public's ability
to participate. The department should analyze the true costs and republish
the rules with the same publicity it advertised the program in its Press Releases.
Response: The department disagrees with this comment. The agency has complied
with all statutory requirements related to this rulemaking process and is
confident that the information contained in the original publication provided
sufficient notice to the public regarding the nature and content of the proposed
rules.
Comment: The fiscal impact to individuals is not specified. The Notice
should state the precise percentage or range of percentage that the vendor
may charge individuals for installments. In other words, the additional cost
to individuals for entering into an installment payment as opposed to paying
in full should be specified in the rules.
Response: The department disagrees with this comment. The purpose of proposed §15.162
is to provide general information to the public regarding installment agreements.
The Surcharge Notice mailed to every individual subject to a surcharge requirement
provides specific information pertaining to the actual amount of the surcharge
and the additional fees associated with an installment agreement.
Comment: §15.161(a) indicates that a vendor will be sending notices
to individuals. Texas Transportation Code, §708.151 requires that the
department and not the vendor send the notice. This is an important distinction
because the department is a government body that does not have any pecuniary
conflict of interest and will not directly profit from the enforcement or
non-enforcement of any particular provision.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.155 provides that the department may contract with a private
vendor
for the provision of services
for the
collection of surcharges receivable and related costs. The department has
construed this provision to permit the agency to contract with a vendor to
perform all necessary tasks to ensure the efficient implementation of the
Driver Responsibility Program, including sending notices, collecting fees
and other related administrative functions. The department's objective is
to enforce the law and the vendor, as an agent of the department, is held
to the same standard.
Comment: §15.161(b) requires the public to make payments through the
vendor. This does not serve a public purpose but only ensures the vendor collects
its fee. It is in the public interest for individuals to the extent possible
to directly pay DPS. The rules should make an allowance for individuals to
pay DPS.
Response: The department disagrees with this comment. As previously indicated,
the efficient administration of the Driver Responsibility Program requires
that the vendor handle general administrative aspects of the program, including
the collection process. As such, the suggested amendment is not required.
Comment: §15.161(c) does not define "additional cost" and the term
is not defined in the statute. Is this the same as "related cost" in Chapter
708.155 of the Transportation Code? The ambiguity inherent in failing to define
this term would permit the vendor and/or DPS to later change or add to the
amounts or nature of the charges defined as "additional costs" without notifying
the public. The statutory authority to do this is not present in the statute
unless the term is strictly related to costs of either: (1) a credit card
transaction in which the vendor or DPS incurs a fee; or (2) attorneys fees
to collect on a surcharge.
Response: The department used the term "additional costs" to mean "related
costs." However, based on this comment, the proposed rule has been amended
to reference the term "related costs" as utilized in Texas Transportation
Code, §708.155. For purposes of clarification, "related costs" are optional
service fees charged in addition to the vendor's fee, including credit card
transaction fees, electronic check service fees and partial payment fees associated
with installment agreements. General information regarding these costs is
contained in the Surcharge Notice mailed to every individual subject to a
surcharge requirement.
Comment: §15.161(c) does not define "fails to pay the... any additional
cost." This does not specify what procedure is due to an individual if the
failure to pay occurs because of an error of the Department of Public Safety
or an error of the vendor. This does not specify whether any conditions justify,
mitigate, or excuse the payment of the installment fee, such as the preemptive
effect of federal law or a judicial order.
Response: The department is committed to maintaining accurate and complete
driver records. The agency's standard business practice is to fully investigate
any claim regarding a potential error, regardless of whether or not it pertains
to a surcharge or cost associated with the Driver Responsibility Program.
It is not necessary to create an administrative rule to further define the
agency's error resolution process. In addition, the governing statute does
not provide for any conditions that justify, mitigate or excuse the payment
of any fee associated with the Driver Responsibility Program.
Comment: §15.161 states that an individual that fails to pay any installment
fee or related cost will be subject to a revocation action. However, Chapter
708 does not authorize revocation actions, only suspensions. The term "revocation
action" should be defined if used and the time period should be specified.
Response: The department agrees with this comment and has amended the proposed
rules to change all references from "revocation" to "suspension."
Comment: §15.162 is entitled "Installment Agreements" yet the installment
agreements are never defined or explained. The term "installment agreement"
clearly contemplates a written agreement and the failure to provide one will
allow for the abuse of Texas citizens by the vendor or its agents. The vendor
or its agents could state anything over the telephone to a citizen in order
to facilitate a payment. Without a written agreement, Texas citizens do not
know what limits have been placed on the vendor and do not know when their
rights have been violated.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.153 does not require the agreement to be formally documented
and grants the department the authority to adopt rules governing the payment
of surcharges in installments. Proposed §15.162 clearly states what steps
must be taken to enter into an installment agreement, when payments are due
and what constitutes a minimum payment. The Surcharge Notice mailed to every
individual subject to a surcharge requirement provides further information
regarding installment agreements.
Comment: §15.162(b) "additional processing fee" would require additional
statutory authority that has not been provided for in the statute. This is
not a fee that the department can impose to the surcharge by legislative rule.
The clear language of the statute defines surcharge amounts and the rules
should do in accordance with the text of statute.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.155 provides that the total amount of compensation received
by the vendor may not exceed 30% of the amount of the surcharge and related
costs collected. The current contract provides that the vendor will be compensated
in an amount equal to 4% of the surcharge assessed. If a person subject to
a surcharge requirement elects to pay the surcharge in installments, the contract
permits the vendor to charge an additional $2.50 installment payment fee per
payment. The vendor contract specifically states that the total compensation
cannot exceed the 30% authorized by the governing statute. As such, the department
is within its statutory authority to adopt this rule.
Comment: §15.162(c) allows for an installment agreement to be formed
by an individual paying the "minimum amount due." However, the department
does not define the minimum amount due precisely. The department does not
specify the "minimum amount due" and reference it to the various surcharged
offenses.
Response: The department disagrees with this comment. The minimum amount
due is determined by the total surcharge owed. Proposed §15.162(k) advises
the public how to determine the minimum payment given a general range of surcharge
requirements. Furthermore, the Surcharge Notice mailed to every individual
subject to a surcharge requirement provides examples (in dollars) of the minimum
amount due.
Comment: §15.162(c) does not specify whether an individual can enter
into an installment agreement without being told by the vendor or the department.
This is a problem because installment agreements that are created without
the knowledge of the individual are void because it is unfair to bind someone
to a contract without their knowledge.
Response: The department disagrees with this comment. The decision to enter
into an installment agreement rests entirely with the person against whom
the surcharge was assessed. As previously stated, proposed §15.162 clearly
states what steps must be taken to enter into an installment agreement, when
payments are due and what constitutes a minimum payment.
Comment: §15.162(c) states "The individual is not required to provide
written declaration of the installment agreement." However, it does not clarify
whether the individual has a right to receive an installment agreement from
the department or the vendor. A copy of the installment agreement should be
sent with the notice letter.
Response: The department disagrees with this comment. Proposed §15.162(c)
is intended to simplify the process in that it does not require an official
declaration of the intent to enter into an installment agreement. Payment
of the minimum amount due automatically establishes an installment agreement.
The department does not intend to create a document formalizing the agreement.
Comment: §15.162(c) allows the vendor's acceptance of a payment to
determine whether an individual is aware of the consequences of entering into
an installment agreement. This is counterintuitive and violates fundamental
principles of fairness and contract law. Whether an individual is aware of
the consequences of any action cannot be defined by whether the vendor accepts
a payment from that person.
Response: The department agrees that the language contained in proposed §15.162(c)
may be confusing to the public. Based on this comment, the department has
amended proposed §15.162(c) by deleting the phrase "and denotes that
the individual is aware of the agreement as well as the consequences for failing
to uphold the agreement."
Comment: §15.162(d) requires payment in 30 days or implies revocation
will occur. There is no statutory authority for revocation. This should be
excised from the rules as an ultra vires action of the agency and also as
an action that does not benefit the public interest.
Response: As previously stated, the department has amended the proposed
rules to change all references from "revocation" to "suspension."
Comment: The department should not suspend any licenses if the person cannot
pay because the person is indigent. Texas law has long recognized that if
a person lacks financial resources and can make a showing to that effect,
the Excessive Fines Clause of the Texas Constitution requires that the individual
be accommodated. The department should develop rules allowing for an individual
to show proof of indigent status.
Response: The department disagrees with this comment. The Texas Legislature,
in enacting HB 3588, could have provided a mechanism by which the department
was required to consider a person's ability to pay a surcharge assessed under
the Driver Responsibility Program. However, absent statutory language to that
effect in Texas Transportation Code, Chapter 708, the department does not
have the authority to adopt a rule that waives a surcharge for certain individuals
based on indigent status.
Comment: §15.162(e) allows for a revocation to be lifted if an individual
has made no payments but does not provide for the lifting of a revocation
if payments have in fact been made after an installment agreement is made
but have been late. This situation is counterintuitive and in fact provides
a reverse incentive for individuals NOT to make any payments for as long as
possible. The department should provide rules and mechanism for all revocations/suspensions
to be lifted.
Response: The department disagrees with this comment. A person who has
not yet entered into an installment agreement may do so at any time. Proposed §15.162(e)
is designed to encourage individuals who have been suspended to comply with
the law. However, individuals who have demonstrated that they will not comply
with the terms of an installment agreement will not be permitted to enter
into another agreement for the same surcharge requirement. The plain language
of Texas Transportation Code, §708.153(b)(2) clearly contemplates this
situation and authorizes the department to adopt a rule that ensures the orderly
collection of surcharge payments.
Comment: §15.162(f) is arbitrary and capricious. It does not define
"attempt to enter into an installment agreement." It is unclear what behavior
or conduct the department is attempting to penalize with a revocation action
by virtue of creating this rule. The definition of entering into an installment
agreement is to make the minimum payment. How then can one attempt to enter
into an installment agreement without in fact making that minimum payment?
The rule fails to provide sufficient notice as to what conduct is prohibited.
The department should specify what specifically it considers an "attempt to
enter into" and also not include a good faith mistake or inability to pay
as grounds for revocation.
Response: The department disagrees that proposed §15.162(f) is arbitrary
and capricious. However, based on this comment, the proposed rule has been
amended to clarify that submission of less than the minimum payment needed
to establish an installment agreement in a timely manner will result in suspension
action. As previously stated, indigent status does not excuse the obligation
to pay the surcharge. Furthermore, the department cannot excuse the failure
to pay a surcharge due to a good faith mistake absent specific statutory authority.
Comment: In §15.162(f), the term "specific surcharge requirement"
is not defined. If the department means the assessment for the entire year,
then it should state that in the rule. However, because the statute does not
require such a severe penalty, the department should allow an individual to
cure any default or inability to enter an agreement if good cause is shown.
The department should adopt rules defining good cause.
Response: The department disagrees with this comment. "Specific surcharge
requirement" refers to the total surcharge for which the individual, for whatever
reason, failed to submit the minimum payment. This reference does not require
further definition. As previously stated, individuals who have demonstrated
that they will not comply with the terms of an installment agreement will
not be permitted to enter into another agreement for the same surcharge requirement.
Comment: In §15.162(f) the term "associated fees" is not defined.
The department's authority to require payment of any "associated fees" is
not provided for in the statute. Prior to making rules that require or impose
additional financial burdens on individuals, the department must have additional
statutory authority that has not been provided for in the statute. This is
not a fee that the department can impose to the surcharge by legislative rule.
The clear language of the statute defines surcharge amounts and the rules
should do in accordance with the text of the statute.
Response: The department used the term "associated fees" to mean "related
costs." However, based on this comment, the proposed rule has been amended
to reference "related costs" as utilized in Texas Transportation Code, §708.155.
As previously indicated, "related costs" are optional service fees charged
in addition to the vendor's fee, including credit card transaction fees, electronic
check service fees and partial payment fees associated with installment agreements.
General information regarding these costs is contained in the Surcharge Notice
mailed to every individual subject to a surcharge requirement.
Comment: §15.162(g) states the surcharge is due on the same date each
month. However, this requirement does not take into account the fact that
the dates for some individuals each month will fall on Saturdays and Sundays
as well as official holidays. The rules should specify that an official holiday
or weekend provides a grace period until the next working day.
Response: The department disagrees that the rule should be amended to specifically
provide for a grace period. The vendor processes payments on Saturdays. However,
current business practice provides that payments due on a Sunday or holiday
are considered timely if received by the next business day. To further clarify
payment due dates, the department has amended the text of proposed §15.162(g)
by removing the word "received" to clarify that the payment due date is based
on the date of the Surcharge Notice, not the date that the Surcharge Notice
was received. Also, proposed §15.162(g)(1) has been amended to reflect
the current business practice of extending the payment due date to the next
business day if the payment is due on the 29th, 30th or 31st in months that
do not have those dates.
Comment: §15.162(h) uses the term "fails to provide a timely payment"
without defining that term. Is timely payment within the discretion of the
vendor to determine? If so, the vendor has a conflict of interest. May the
vendor bargain with the individual to require more frequent payments and thus
increase its overall interest rate in the form of "partial payment fees?"
This sort of conflict of interest will lead to unequal application of the
law based on factors that the Legislature neither contemplated nor desired.
The rule should specifically define "timely payment" and provide for a grace
period for good cause so as to prevent the vendor from applying its own standards
that may be unequal and self-interested.
Response: The department disagrees with this comment. Proposed §15.162(g)
specifically provides that subsequent installment payments are due each month
on the same date as the date of the Surcharge Notice. The Surcharge Notice
advises the person that the initial payment must be received within thirty
days from the date of the letter. The vendor does not select the initial payment
date, nor can the vendor change the date for future payments. Therefore, no
further clarification is required.
Comment: Insofar as §15.162(h) imposes a revocation for the failure
to make a timely payment, it exceeds the statutory authority of the department.
Chapter 708 specifically states what conduct authorizes the department to
suspend a license, and a late payment is not specified as a grounds upon which
the department may suspend a license. Therefore, the department should not
include a penalty at all.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.152(a) provides that if the person fails to pay the amount
of a surcharge or fails to enter into an installment agreement before the
30th day after the date the department sends notice, the license is suspended.
Furthermore, Texas Transportation Code, §708.153(b)(2) authorizes the
department to adopt a rule which declares the amount of the unpaid surcharge
immediately due and payable if the person fails to make a required installment
payment. As such, the department has the authority to take suspension action
if an individual fails to make a timely installment payment and is considered
in default of the agreement.
Comment: §15.162(h) insofar as it improperly delegates the administrative
responsibilities of the department to the department's vendor is not in the
public interest. Chapter 708 provides for the department to perform functions
that are essential governmental and/or police exercises such as taxing or
revoking a license. Because this rule delegates authority to a private vendor
without clear safeguards and such delegation offends the structure and provisions
of Article II and Article III of the Texas Constitution, the rule should not
be adopted.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.155 provides that the department may contract with a private
vendor
for the provision of services
for the
collection of surcharges receivable and related costs. The department has
construed this provision to permit the agency to contract with a vendor to
perform all necessary tasks to ensure the efficient implementation of the
Driver Responsibility Program, including sending notices, collecting fees
and other related administrative functions. Furthermore, proposed §15.162(h)
does not improperly delegate any administrative responsibilities of the department
to the vendor. Employees of the department, not the vendor, actually enter
the suspension information on the person's driver record.
Comment: §15.162(h) includes the term, "Defaults on the installment
agreement" however, that term is not defined. Is the decision to declare someone
in default the department's or the vendor's? If so, the vendor has a conflict
of interest. May the vendor bargain with the individual to require more frequent
payments and thus increase its overall interest rate in the form of "partial
payment fees?" This sort of conflict of interest will lead to unequal application
of the law based on factors that the Legislature neither contemplated nor
desired. The rule should specifically define "Defaults on the installment
agreement" and provide for a grace period for good cause so as to prevent
the vendor from applying its own standards that may be unequal and self-interested.
Response: The department disagrees with this comment. Failure to provide
a timely payment constitutes default on the installment agreement as described
in proposed §15.162(h). The Surcharge Notice advises the person that
payment must be received within thirty days from the date of the letter and
further states the consequences for failure to provide a timely payment. As
previously stated, the vendor does not have the authority to change the date
for future payments. No further clarification is required.
Comment: §15.162(h) "individual will not be eligible to enter into
another installment agreement." There is no statutory authority to prevent
or limit the number of installment agreements that a person may enter into
with the vendor. The Legislature intends individuals to be able to pay out
the surcharge over time and it contravenes the intent of Chapter 708 to accelerate
the entire balance of the surcharge for a single late payment. The Legislature
clearly could have but did not authorize such action in the statute.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.153(b)(2) specifically authorizes the department to adopt
a rule which declares the entire amount of the unpaid surcharge immediately
due and payable if the person fails to make a required installment payment.
Comment: §15.162(h), statement that "The revocation will remain in
effect until the surcharge and associated fees are paid in full" is beyond
the statutory authority of the department because the statute does not authorize
a revocation. Additionally, the revocation or suspension cannot be applied
to the "associated fee(s) because this is essentially a collection action
to benefit a private vendor. The state is not benefiting through the collection
of the "associated fees."
Response: As previously stated, all references to the term "revocation"
have been changed to "suspension" and all references to "associated fees"
have been changed to "related costs." Texas Transportation Code, §708.152(b)
provides that a license remains suspended until the person pays the amount
of the surcharge and any related costs. As such, the department is within
its statutory authority to adopt such a rule.
Comment: §15.162(i) insofar as it allows the vendor to continue to
receive payments despite keeping a license revoked is not in the public interest.
The rule does not explain or define when the driver's license must be restored.
The rule appears to allow the department and its vendor to receive and enforce
a contract without providing consideration to the individual making the payments.
Because this rule is unfair to members of the public and only appears to benefit
the vendor, it should be modified so as to provide as long as payments are
made, the individual's license should not be suspended.
Response: The department disagrees with this comment. Proposed §15.162(i) permits
the person to continue to make payments,
but does not require such action on the part of the individual. Following
a default, there is no longer an installment agreement between the parties
and the person is not obligated to pay the partial payment fee. Further, the
proposed rule specifically states that the license will remain revoked [suspended]
until the specific surcharge has been paid in full.
Comment: §15.162(i) insofar as it contemplates revocation of all driving
privileges is ultra vires. The department lacks statutory authority for this
action. Chapter 708 only authorizes an automatic suspension. Because this
clearly exceeds the statutory authority of the department, it should not be
adopted.
Response: As previously stated, all references to the term "revocation"
have been changed to "suspension."
Comment: §15.162(k) "partial payment fee" is not defined. The statute
does not authorize the imposition of a partial payment fee. Therefore, the
rules exceed the statutory authority of the agency and should be modified
to exclude any partial payment fees.
Response: The department disagrees with this comment. As previously described,
partial payment fees are optional service fees associated with an installment
agreement. Texas Transportation Code, §708.155 provides that the total
amount of compensation received by the vendor may not exceed 30% of the amount
of the surcharge and related costs collected. The current contract provides
that the vendor will be compensated in an amount equal to 4% of the surcharge
assessed. If a person subject to a surcharge requirement elects to pay the
surcharge in installments, the contract permits the vendor to charge an additional
$2.50 installment payment fee per payment. As such, the department is within
its statutory authority to adopt such a rule.
Comment: §15.162(j) is flawed because it does not clarify whether
individuals who received a single reference number for more than one surcharge
may direct their surcharge payments to be divided up between the assessed
surcharges.
Response: The department disagrees with this comment. According to current
business practices, each surcharge requirement is identified by a unique reference
number. This number is contained in the Surcharge Notice mailed to each individual
subject to surcharge a requirement. Individuals who owe more than one surcharge
requirement may establish an installment agreement for each surcharge owed.
Proposed §15.162(j) merely establishes guidelines for how multiple surcharge
requirements will be processed by the vendor.
Comment: §15.162(k) is vague and confusing because it is not clear
whether the "total amount due" refers to the total amount due for an annual
assessment or the total amount due for a projected three year period. It does
not make sense to allow multiple small payments more often than once a month
as this will result in individuals paying more in charges to the vendor than
in payments directed towards principal amounts. Such a rule is not in the
public interest.
Response: The department disagrees with this comment. The "total amount
due" only refers to the assessment for the current year since the surcharge
is not yet due for future years. Installment payments are only due once per
month as provided in proposed §15.162(g). Further, proposed §15.162(l)
provides that the balance may be paid in fewer payments, which allows the
person to avoid additional partial payment fees.
Comment: The rules provide no mechanism for an individual to dispute a
surcharge, cost or fee that has been assessed in error. Such a provision should
be developed and proposed prior to the adoption of any rules regarding installment
contracts.
Response: The department disagrees with this comment. As previously stated,
the agency's standard business practice is to fully investigate any claim
regarding a potential error, regardless of whether or not it pertains to a
surcharge or fee associated with the Driver Responsibility Program. It is
not necessary to create an administrative rule to further define the agency's
error resolution process.
Comment: The rules provide no mechanism for an individual to dispute whether
the department or its vendor properly sent notice. Such a provision should
be developed and proposed prior to the adoption of any rules regarding installment
contracts.
Response: The department disagrees with this comment. As previously stated,
the agency's standard business practice is to fully investigate any claim
regarding a potential error, regardless of whether or not it pertains to a
surcharge or fee associated with the Driver Responsibility Program. It is
not necessary to create an administrative rule to further define the agency's
error resolution process.
Comment: The rules do not make clear how individual's protected and confidential
criminal history information has been protected from disclosure to the vendor
and/or the general public. For example, what restrictions exist on the ability
of the vendor to use information gained from individuals for pecuniary gain.
May the vendor develop a database of information that it can resell to other
information brokers based upon information provided in the course of entering
installment agreement and making payment collections.
Response: The department disagrees with this comment. The purpose of the
proposed rules is to provide general information to the public regarding the
use of a vendor and the acceptance of installment agreements. This comment
pertains to matters addressed in the contract between the department and the
vendor and is outside the scope of the proposed rules.
Comment: The rules do not explain whether the vendor may disclose information
about an individual's surcharge to another person to allow the other person
to make a payment on behalf of an individual. May another person make a payment
on behalf of someone who has received a surcharge and if so, to what information
about the underlying reason for the surcharge is the person entitled. Considering
that the significant privacy interests may be implicated for large numbers
of the population, the rules should address this issue.
Response: The department disagrees that the proposed rules should address
this situation. A person may make a payment on behalf of another person. However,
the person making the payment must provide the vendor with the appropriate
information in order for the vendor to credit the payment to the correct surcharge.
The vendor does not provide any information to third parties to facilitate
the payment.
Comment: The rules do not explain the nature of the Driver Responsibility
Program surcharge. Are the surcharges considered criminal fines, civil fines,
taxes, or criminal penalties or punishment. The department's interpretation
may determine the extent to which a variance exists between the enforcement
of the statute for particular individuals, especially debtors, and an inconsistency
with federal law, such as order of a United Stated Federal Bankruptcy Court.
Response: The department disagrees that the proposed rules should address
this issue. The purpose of the proposed rules is to provide general information
to the public regarding the use of a vendor and the acceptance of installment
agreements. This comment addresses issues which are outside the scope of the
proposed rules.
Comment: The department's statutory authority to use a vendor is limited
to the collection of "surcharges receivable." The rules as proposed contemplate
the use of a vendor to provide notice, assess the surcharge, monitor compliance
payments, initiate installment agreements, and declare defaults. The department
lacks the statutory authority to use a vendor as contemplated in the proposed
rules. The rules should be rewritten to limit the ability of the vendor to
collect delinquent surcharges.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.155 provides that the department may contract with a private
vendor
for the provision of services
for the
collection of surcharges receivable and related costs. The department has
construed this provision to permit the agency to contract with a vendor to
perform all necessary tasks to ensure the efficient implementation of the
Driver Responsibility Program, including sending notices, collecting fees
and other related functions. As such, the department is within its statutory
authority to adopt the rule as written.
Comment: It does not appear that the proposed rules provide for proper
and effective notice which is a prerequisite to collecting payment. For example,
commingling credit card fees, processing fees, related fees, contract fees,
partial payment fees, and other "fees" into a single amount asserted to be
the surcharge amount implies to the individuals receiving the notice that
the entire amount is owed to the State of Texas as an assessed surcharge.
The rules should provide for a clear and unambiguous notice of the assessment
of the surcharge amount which consists of only the statutorily authorized
figure as set on in the offense categories contained in Chapter 708.
Response: The department disagrees with this comment. The proposed rules
are designed to provide basic information to the public pertaining to the
Driver Responsibility Program and installment agreements. The Surcharge Notice
mailed to every individual subject to a surcharge requirement provides specific
information regarding the total amount due, which includes the statutory surcharge
assessment and the vendor's fee. In addition, the correspondence provides
general information regarding optional service fees such as credit card fees,
check by phone services and partial payment fees. A person is not obligated
to pay the respective optional service fee unless an optional service is utilized.
Comment: The rules fail to provide for the vendor to utilize creditor cards
for payments. If the department intends to allow individuals to make payments
with credit cards or to establish an installment agreement through the use
of a credit card, the department's current rules are not effective.
Response: The department disagrees with this comment. The proposed rules
were not intended to address the various methods of payment. The Surcharge
Notice mailed to every individual subject to a surcharge requirement provides
specific information on how to contact the vendor to facilitate payment by
credit card.
Comment: The rules are fundamentally flawed in that they fail to protect
members of the public from the fundamental conflict of interest created by
having a for-profit vendor notify and collect the surcharges instead of the
Department of Public Safety which is a governmental agency and is not a profit-making
entity. The rules should clearly inform individuals of their rights and limit
the discretion of the vendor or should provide an alternative to the individuals
having to utilize a for profit vendor.
Response: The department disagrees with this comment. Texas Transportation
Code, §708.155 provides that the department may contract with a private
vendor
for the provision of services
for the
collection of surcharges receivable and related costs. As such, the proposed
rules are within the department's statutory authority to adopt. The department
does not intend to establish an alternate mechanism for notification and collection
processes related to the Driver Responsibility Program.
Comment: In order to understand fully the nature of the installment rules
as proposed, the department should make available by publication in the Texas Register
or on the department's website, the
contract between it and its vendor along with any amendments or modifications
that have been made to the contract and other binding agreements between it
and the vendor. Because the vendor's conduct towards member of the public
will be governed in such an agreement, it is impossible to fully analyze the
extent to which these rules may or may not conflict with the written agreement
between the Department of Public Safety and its vendor and/or any other vendors
or subcontractors utilized.
Response: The department disagrees with this comment. The department has
complied with all statutory requirements with regard to this rulemaking process.
A person interested in reviewing specific documentation related to the implementation
of the Driver Responsibility Program may make an official request for information
in accordance with state law and agency policy.
Comment: Proposed §15.162(k)(3) and (4) authorize installment agreements
which extend beyond the time period authorized by the governing statute.
Response: Based on this comment, the department has corrected this oversight
by amending proposed §15.162(k)(3) and (4) to reflect the specific amounts
and time periods referenced in Texas Transportation Code, §708.153(b).
Comment: The proposed rules do not address how the department will determine
an alcohol concentration of 0.16 or greater in order to assess a higher surcharge
or how the department will assess the surcharge on an individual who receives
a second/subsequent DWI before the first offense is adjudicated.
Response: The department disagrees that the proposed rules should address
this issue as they do not concern the mechanism by which the department actually
assesses the surcharge. The rules are limited in scope and are designed to
advise the public regarding the use of a vendor and installment agreements.
As previously indicated, the department has a business process by which a
person subject to a surcharge requirement may verify the accuracy of the information
contained on the driver history. It is not necessary to create an administrative
rule to further define the agency's error resolution process.
Comment: The proposed rules do not clarify when the assessment is made
or if the assessment is made by the vendor or the department. Further, the
rules do not specify how the department intends to differentiate between those
individuals who received surcharges during the backlog period.
Response: The department disagrees that the proposed rules should address
this issue as they do not concern the mechanism by which the department actually
assesses the surcharge. The Surcharge Notification mailed to every individual
subject to a surcharge requirement provides information regarding when the
department will assess a surcharge and describes the point system and intoxication
offense surcharges. The proposed rules apply to all individuals, regardless
of whether or not the surcharges were assessed during the backlog period.
Comment: The proposed rule is unclear as to whether the installment agreement
is between the department and the person or the vendor and the person.
Response: The department disagrees with this comment. The vendor serves
as an agent of the department. Proposed §15.162(a) provides that the
department, through the vendor, will accept installment payments.
Comment: The rule does not address what safeguards are in place with respect
to fair debt collections and how an individual may report a complaint against
the vendor.
Response: The department disagrees that the proposed rules should address
this issue. As previously stated, the agency's standard business practice
is to fully investigate any claim regarding a potential error, regardless
of whether or not it pertains to a surcharge or fee associated with the Driver
Responsibility Program. Likewise, the department would fully investigate any
complaint against the vendor. It is not necessary to create an administrative
rule to further define this process.
The new sections are adopted pursuant to Texas Government Code, §411.004(3),
which authorizes the Public Safety Commission to adopt rules considered necessary
for carrying out the Department's work; and Texas Transportation Code, §708.002
and §708.153.
§15.161.General Information.
(a)
The department has contracted with a vendor to process
payments under the Driver Responsibility Program. The vendor will produce
and send all surcharge notices, accept all payments and report all transactions
to the department.
(b)
All payments must be submitted to the vendor. The department
will not accept payments for surcharges under the Driver Responsibility Program
at Department of Public Safety (DPS) facilities.
(c)
An individual who fails to pay the surcharge, including
any related costs or fails to enter an installment agreement within 30 days
from the date of the Surcharge Notice will be subject to suspension action.
§15.162.Installment Agreements.
(a)
The department, through the vendor, will accept installment
payments for surcharges required under the Driver Responsibility Program.
(b)
There is an additional processing fee required per each
payment submitted in accordance with an installment agreement. The fee is
set by the department and is provided on all original notifications.
(c)
To enter into an installment agreement, the individual
must submit the minimum amount due. The vendor's acceptance of the minimum
amount due constitutes an installment agreement. The individual is not required
to provide written declaration of the installment agreement.
(d)
To prevent suspension, the minimum amount due must be received
within 30 days of the original Surcharge Notification.
(e)
If a suspension action has occurred, an individual who
has not submitted any partial payments can enter into an installment agreement
to lift the suspension.
(f)
The driver license and/or driving privileges of an individual
who submits less than the minimum payment needed to establish an installment
agreement will be suspended. This individual will not be eligible to enter
into an installment agreement for that specific surcharge requirement. The
suspension will remain in effect until the surcharge and related costs are
paid in full.
(g)
Subsequent payments are due each month on the same date
as the date of the Surcharge Notification for that particular surcharge.
(1)
If the installment payment is due on the 29th, 30th or
31st, payments are due on next business day in months that do not have those
dates.
(2)
Payment due dates return to the same date as the Notification
for following months that have the corresponding date.
(h)
If an individual fails to provide a timely payment and
defaults on the installment agreement, the license and/or driving privileges
will be suspended. The individual will not be eligible to enter into another
installment agreement for that specific surcharge requirement. The suspension
will remain in effect until the surcharge and related costs are paid in full.
(i)
If suspended, an individual may continue to make partial
payments; however, the license will remain suspended until the specific surcharge
has been paid in full.
(j)
To submit an installment payment, the individual must include
the full name, driver license/identification number and the surcharge reference
number with all payments.
(1)
If an individual has multiple surcharge notifications and
does not provide the reference number, the payment will be applied to the
oldest outstanding surcharge requirement.
(2)
If the individual submits a payment and provides a reference
number, the payment will be applied as requested even if this results in a
default or suspension on another surcharge owed by the same individual.
(k)
Minimum payments are determined by dividing the total amount
due by the maximum payments allowed and adding the partial payment fee. The
maximum number of payments is determined by the amount of the surcharge required.
(1)
For surcharge requirements of $100 - $259 an individual
may make a maximum of four (4) payments.
(2)
For surcharge requirements of $260 - $999 an individual
may make a maximum of ten (10) payments.
(3)
For surcharge requirements of $1000 - $2300 an individual
may make a maximum of twelve (12) payments.
(4)
For surcharge requirements of $2301 and over an individual
may make a maximum of twenty-four (24) payments.
(l)
An individual may pay the balance in fewer payments, but
a payment of less than the minimum required will result in the suspension
of the license and/or driving privileges.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 20, 2005.
TRD-200501648
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Effective date: May 10, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 424-2135