April 11, 2009
Court issues injunction against DPS over drivers license rules

A district court judge has suspended the new drivers license rules implemented by the Department of Public Safety pending a civil trial on the grounds that DPS didn't have the authority to do what it did.

The rules prevent thousands from getting standard-issue licenses even though they're legally in the country, said the Mexican American Legal Defense and Educational Fund, which is suing over the policy.

District Judge Orlinda L. Naranjo said the rules -- which specify that people who aren't U.S. citizens or lawful permanent residents must prove they're legally here before getting a license -- go beyond DPS authority.

"This case is not about illegal immigrants obtaining driver licenses, it is about legal residents who have been denied or have been threatened a denial of a driver license," Naranjo wrote to lawyers, saying she was granting a temporary injunction. After a formal order, such an injunction would block the rules pending a trial.


"DPS has created havoc by attempting to inject its political agenda into the lawmaking process and improperly giving second-class status to individuals who in every way have complied with the laws of the land regarding their presence in the United States and Texas," said David Hinojosa, MALDEF lead attorney in the case.

Rep. Ruth Jones McClendon, D-San Antonio, said the rule changes "had no legislative backing. State agencies do not have the power to pass rules that contradict or fail to comply with state laws."

Before the rules were changed, an unexpired visa was accepted as proof of identify for someone seeking a driver's license, Naranjo noted. The change required the visa to have been issued for at least a year and have at least six months remaining on it when presented to DPS.


Naranjo wrote: "State agencies possess only those powers granted to them by the Legislature ... The Court finds that the Legislature did not give DPS the authority to create a new category of ineligible persons to receive a driver license."

Apparently, what Judge Naranjo said isn't good enough for DPS.

The state said it has filed notice that it will appeal the decision by State District Judge Orlinda Naranjo of Travis County, who said DPS acted outside the scope of its authority in its changes to driver's license rules last year.

DPS said the appeal means those rules -- touted last year as a crackdown on unauthorized immigrants -- will remain in effect until the merits of the appeal are decided.

"Noncitizens or temporary visitors to the United States who appear at DPS driver license offices will not be issued driver licenses if they do not meet current identification rules," the agency said.

Not so fast, said the Mexican American Legal Defense and Educational Fund, which sued over the rules and persuaded Naranjo to agree to the temporary injunction.

The group will oppose the state's effort to keep the current rules in place while the appeal is pending, said staff attorney David Hinojosa: "We would fight that."

If filing an appeal means you can ignore a judge's order, then what's the point of having the district courts? I don't know why DPS thinks this order doesn't apply to it until the 3rd Court of Appeals says so, but I hope that should the 3rd Court uphold the district court's ruling that DPS will abide by it. And I hope that the 3rd Court will clarify what should have happened here. This strikes me as a potentially dangerous precedent.

Anyway. Just to review the history, DPS implemented this rule change in October. Stories about the difficulties that legal immigrants faced getting licenses soon followed, as did two different lawsuits to force DPS to rescind that rule. I'm not sure if they were combined into one or if the other case is still pending. There's also been legislation filed to prevent DPS from doing this, though I doubt it will pass; as of today, both HB1278 and its companion SB2261 are in committee. If it is the courts that ultimately decide this, we're a long way off from a resolution.

Posted by Charles Kuffner on April 11, 2009 to The great state of Texas
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