TO ALL CITIZENS OF THE STATE OF TEXASHere's a link to the CCA page on his case, though no documents are posted online yet. I don't know Mr. Montes, but he apparently brought this action pro se and deserves a lot of credit for making it this far. (He gave his contact information in the original comment(s), if you like, though I won't republish it.) This is separate litigation, of course, from the federal suit out of Fort Worth, discussed on Grits previously, which also seeks to declare the Driver Responsibility surcharge unconstitutional.
Court of Criminal Appeals of Texas has accepted the case and will consider my motion to declare Ch 708 of TX Trans Code "Surcharge Program" unconstitutional. Writ No. WR-76,215-01. I ask all interested licensed Texas attorneys, law professors, civil rights groups, etc to file their friend of the court briefs in support of relators motion to declare ch 708 of the Texas Transportation Code unconstitutional. We got the Texas high court's attention now. Help me shut this Ch. 708 down, make the state refund every dollar with interest and reinstate all DLs suspended under ch 708. We don't need congress to repeal and wait for any federal court to intervene. This [is a] motion before a Texas high court to review a Texas statute. It's perfect.
Any questions?
Daniel Montes
The Texas Court of Criminal Appeals would be about the last place I'd look to get rid of this wretched civil surcharge, but you never know. The Driver Responsibility surcharge, I've found, is disliked across the political spectrum for a variety of different reasons, including among many self-styled conservative, law-and-order types who've watched in horror as it has helped drive DWI conviction rights steadily downward since its inception. (Judges have testified at legislative hearings that charges are routinely being reduced in some jurisdictions to avoid applying many thousands in additional surcharge costs.)
I'm not a lawyer, but this is certainly an opportunity for any groups, firms, or individual attorneys with sufficient resources and motivation to file amici briefs on behalf of a motion pending before the Texas Court of Criminal Appeals that could, conceivably, get rid of this abject and contemptible program once and for all. Maybe it's futile, some will say, with the likes of Judges Keller and Hervey on the bench. But as my late grandmother was fond of reminding me, "Can't never could."
I know everybody's busy, but this surcharge is a true source of dysfunction in the justice system, affecting literally millions of people. Opportunities arise in this world, then windows close, and pro se or not, this is an opportunity for Texas' high criminal court to solve a big problem for state criminal courts, if five of them can muster the gumption and if critics of the surcharge can muster the arguments to let them do so. Mr. Montes got his writ this far. Give him some help, if you can, with amici briefs explaining to the court why the Driver Responsibility Surcharge is unconstitutional. (And if you do, be sure to forward copies of whatever you file with the court to Grits, at shenson[at]austin.rr.com.)
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28 comments:
The CCA has not granted anything. The filing is meaningless and will shortly be rejected. Waste of time.
And the simple answer is to not break the law in the first place. I have absolutely no sympathy for any of the scofflaws affected by this. They chose to break the law, and deserve everything they are getting. The surcharge ought to be raised, not done away with.
The State does not dispute that the surcharge program is a revenue generating statute. In Ex parte Drake, the 3rd Court of Appeals declared the surcharges not a fine or penalty, but a tax. The surcharge program is facially unconstitutional, because congress is prohibited from delegating its taxing authority to the DPS or MSB. The program has nothing to do with scofflaws. Its an unlawful tax. The author of the bill admitted that the program was a mistake. Yes, the Court of Criminal Appeals has yet to request briefs. This court has in the past has declared other criminal stautes unconstitutional, a few not many. I hope the court reviews the challenge. I have four distinct novel legal theories of its unconstitutionality never presented to the Texas high court. My name is Daniel Montes.
It discriminates against texas residents as out of state residents dont have to pay
Violates equal protection and is discriminatory. Will add this as point #5. What other legal reasons that the statute is unconstitutional. Keep them coming. Daniel Montes.
Any direction you look at the program from, it is wrong! Call it a tax, a fee, whatever. I call it a second punishment for the same crime. A "money grab" plain and simple. The program, for years now, has been proven to be a collosal disaster that has bled an untold number of people into bankruptcy. And now the amnesty, indigency and incentive programs do not address a huge percentage of the people that have been hit with this failed program. For instance, if you don't want to pay at all, it's ok, we'll let you off. But if you actually do play by the rules and pay into it, you can go ahead and keep paying without even an attaboy. And, if it drives you into bankruptcy, well that's ok too because we as a state government don't care. I fully support stopping this program once and for all, and reimbursement of every penny paid into it plus interest. To our legislators: If it bankrupts the state coffers paying back what was illegally drained from so many people, oh well, that's the price you pay for screwing the people that you are supposed to represent.
The DPS does assess the surcharge to out of state licensees. Probably to avoid an equal protection challenge. Several years ago there was a successful challenge to the analogous statute in Virginia, I believe, on equal protection grounds.
I had over fourteen thousand dollars in surcharges removed with the amnesty. That accumulated from one no insurance ticket. when i could not pay my drivers license was suspended and I was stopped and ticked by the police over 20 time building the 14 thousand dollar debt. Now all those surcharges are removed, Three thousand dollars of more resent surcharges are due! I paid over 500 dollars to the court to get an occupational license. I will never pay these "money grab" tax charges. I no longer believe i am free and no longer care for America! or the police state we live in today. I've lost hope in all humanity . Were a sick self-destructive waste of space. Anything for profit! I myself have learned a great lesson. I take pride knowing i work for a company that Destroys life everyday and is slowly killing the human race!
Great job!! Keep up the good work and effort Daniel Montes. This failed program must be dealt with. It does not just affect "scofflaws" totally legit drivers are affected. Funding is not being provided as planned to trauma care centers because people are not paying these surcharges (apporx. 1.8 billion billed & 600 million paid)This has been going on since the inception of this bill in 2003. Does that affect you? The est. 1.2 million without a drivers license are also uninsured drivers who are driving on the same roads as totally legit drivers. What do you think happens in a collision with one of these drivers? The extra you pay for uninsured motorist protection on your insurance policy...does that affect you? These are only 2 examples of the many I have of how this flawed law affects all drivers in Texas, not just the violators. Do some research Transportation Code 708 is a mistake and it is time for Texas to do something about it!!!
Daniel, fwiw, Ex Parte Drake didn't exactly conclude that the surcharge is a tax. Rather it said that "Monetary penalties have long been recognized as enforceable in civil proceedings and are not historically viewed as punishment. ... We conclude that the surcharges imposed by the driver responsibility program were intended by the legislature to be civil penalties." A "civil penalty" is not a synonym for "tax."
In Drake, the relator attempted to challenge the statute via the double jeaopardy route. The court deemed the surcharge not a penalty, but a civil one. Thus the relator failed in his attempt. If its not a criminal penalty then its a civil tax or fee. Congress is prohibited from delegating its taxing authority to the DPS or MSB. Daniel.
So how much did you have to pay?
I got three tickets 2 months ago. At the bottom of the ticket in big bold letters was a notice about my DL being liable to surcharges. I looked up the surcharge program online and did not like what I found. I asked around and several friends and co-workers have ill feelings and owed the program. I did some legal research and concluded that the statute is an unlawful tax and unconstitutional. I file a motion and brief to declare the statute unconstitutional. The court refused to rule on my motion. I gave written notice to the judge and prosecutor my application of writ of mandamus to the Court of Criminal Appeals of Texas. The judge then dismissed my cases over my objection. We are now before the Texas high court to obtain a ruling on my motion that has merit. I showed the high court four legal reasons that the statute is facially unconstitutional. The major point is that congress is prohibited from delegating their taxing authority to the DPS and MSB. I decided that I was not going to be liable now or later to this unlawful tax. I do this on behalf of myself and every person who drives on Texas roads. To answer your question. Zero now and ever to this surcharge program. Daniel.
We have movement today 8-18-2011 at the CCA of Texas. The writ was submitted to the Court. Daniel.
The CCA is all republican. Even though the writ has merit that the court might decline taking the case to insulate Gov Perry in his bid for the presidency. If the CCA refuses ruling on my motion that I will petition the US SCt to rule the statute unconstitutional. Daniel.
In response to a supporter.
Hopefully when the Court of Criminal Appeals of Texas requests briefs then any licensed atty can file a amici brief (friend of the court) in support of my motion. If you happen to know of any attys to ask if they could file a supporting brief. Thats the best direct way to help convince the high court to declare the surcharge unconstitutional. I'm able to write my brief.
I know in "Drake" the appellant took a shot at the statute before the 3rd Court of Appeals. They attempted the double jeapardy angle of attack which it seems what the statute looks like. The court declared the surcharges not a criminal penalty, but a civil tax. That opens a big can of worms for the statute. Congress is prohibited from delegating its taxing authority to the DPS or MSB, plus five other points so far.
Also, if you can think of any other legal reasons the statute is unconstitional to send them my way so I can include them.
Hey, how about some rain?
Daniel Montes
Every driver that has been wronged by this statute can participate in our case before the high court. Write a good letter stating how this law has affected you and why you think its an unlawful tax, etc. On top put #WR-76,215-01, In The Court of Criminal Appeals of Texas. On the bottom make a note that you swear under oath and sign before a notary. Mail the original and 11 copies to Court of Criminal Appeals of Texas, PO Box 12308, Austin Texas 78711, now. The nine judges are considering the motion now, so get to writing and into the mail first thing.
If you have any questions to call me at my new cell 214-536-8797. Daniel.
I don't know too much about the law etc. But what does this new lawsuit mean for the average everyday person who had to pay surcharges? My husband had many for no insurance, and one for driving while lisc. suspended (due to being unable to pay for his surcharge, and the same he was unable to pay for insurance just trying to keep food on his family's table).
Just curious what this means for any of us out there that have paid And what I should do to hop on board or just wait it out and see what happens!
Like everyone stop waiting. This motion affects every driver on Texas roads. Write a letter on your feelings of this surcharge program and how it has affected your life and family, have it notarized, mail the original and 11 copies to the Court of Criminal Appeals #WR-76,215-01, PO Box 12308, Austin Texas 78711, like TODAY.
My first legal point based on the following (be advised that I have four separate ones before the Court):
Article II, Section 1 and Article III, Section 1 of the Texas Constitution divide the powers of the State of Texas into the three branches of government. The three branches are precluded from exercising "any power properly attached to either of the others." Tex. Const. art. II, § 1. Article III, Section 1 precludes the Legislature from delegating governmental power to private entities. See Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) ("the proper constitutional source for a prohibition of delegations to private entities or another government’s entities is Article III, Section 1 of the Constitution").
Like I said, Texas Congress prohibited from delagating its taxing authority to the DPD and or MSB.
Daniel...
Delegating, DPS. Sorry, typos...
How is it legally possible to claim that a surcharge is unconstitutional when you have not been subjected to the surcharge and, apparently, have no conviction or live case? How could a court declare something unconstitutional when there is no active case?
I'm not an attorney, but you are make a good point. My motion was properly filed and the court abused its discretion by failing to rule on it. I have no other legal remedy because the court dismissed the criminal charges. The elements are fulfilled satisfying mandamus jursidiction by the high court. Statute is facially unconstitutional. The state needs to prepare to refund over a billion dollars.
I will petition the US SCT if the TX CCA drops the ball. Call my bluff.
Who's side are you on? You sound like you are with the State. I'm on the side of the constitution. Don't tread on me.
Daniel.
OMG. CCA denied writ. Going to US Supreme Court now.
Daniel.
Daniel - - Coloradoans are with you! I have taken in a young couple from Texas - - both their jobs ended and they could not find work - - no DLs because of this horrible statute. Now, they have job opps here in CO and cannot land them because CO cooperates wiht Texas re: records and DLs!! Good Kids trying to survive and make life worth living.......
You go for it brother. Our prayers are with you
How about a class action suit with all the people who have paid the fees? If they were to be refunded I'd think that would be a large enough sum, to support legal fees to attract a high zoot legal firm to take the case.
I am affected by this due to a no insurance ticket in 2004, due to an automatic payment failure, then Geico being a pain in the butt. It has been extremely difficult to keep up with this due to my wife loosing her job and me being in school full time while working full time myself. We're just trying to get ahead and keep our kids clothed. Luckily, I haven't had a moving violation in over 12 years, so I don't get stopped much. I'm caught up on my payments, but still have one more year to pay. I think it's definitely double jeopardy, and hitting a man when he's already down. Typical dumass Texas policy.
A suspended license due to surcharges only exacerbates the problem of the citizen by heaping on additional burdens which make it almost impossible to obtain reliable transportation to get to and from work in order to pay them. It is a malicious scheme that places our young workers in slavery to the State. Worse, the revenue exchange between the MSB, DPS and State originating from this program are overtly corrupt and ethically deplorable. Enough is enough. Young and working Texas do not deserve additional, residual penalties when they are already faced with rising education and living costs. These burdens only further the financial slavery our youth are currently under. Down with Chapter 708.
The only dwi was my first and last in 2005 in houston. I learned my lesson not to drink and drive. However, the surcharges I could not afford so I went without a license still today and drive without insurance because you can't be insured with a suspended license. I eventually had to fly so I had to get a state photo id to board planes since TX took my license, and my photo id for some reason didn't cross reference my license, and because of that, when I was pulled over several times between now and then, I was given a no driver's license ticket many times. I was lucky it wasn't a suspended charge because they carry a higher surcharge than a no dl charge. None the less, I have ended up with 4 more surcharges for driving with no dl and I definitely can't afford to get my license back. I can't get a promotion at my job because of not having a valid dl and they won't make me full time because of it and I really need fulltime status with the company so I can get medical benefits which the temporary service doesn't offer. I'm backed in a corner just hoping that I may get a second chance before it's too late. Arthur A.
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