Petition — Sanchez v. Texas

Supreme Court, U, &;

EILED

SEP 1 (979

iotaae ROBAK, JR., CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-355

JULIO CABRERA SANCHEZ,

Petitioner,

versus

THE STATE OF TEXAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

RICHARD D. WOODS

126 Villita

San Antonio, Texas 78205

DAVID K. CHAPMAN

504 W. 8th Street

Austin, Texas 78701

GERALD H. GOLDSTEIN

2900 Tower Life Building

San Antonio, Texas 78205

Counsel for Petitioner

September 4, 1979

SCOFIELDS' QUALITY PRINYERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

INDEX

Page

aks cnx nscceccccces 1

TE 2

ee 2

Statutory Provisions Involved ................... 3

i 6

Reasons for Granting the Writ ................. 11

1. The Decision Below Conflicts With

This Court’s Opinions in United States v.

Chadwick, 433 U.S. 1 (1977), and Arkan-

sas v. Sanders, 99 S.Ct. 2586 (1979) ....... 11

2. The Case Before the Court Presents

an Important Exception to the Court’s

Holding in Cady v. Dombrowski, 413 U.S.

EN et 12

3. The Initial Detention of Petitioner by

The Border Patrol Agents Was

Without Probable Cause ............... 14

4. The Arrest Which Led Directly to the

Search of Petitioner’s Trunk Com-

partment Was Illegal Under Texas

OE 16

5. Both the Fourth and Fourteenth

Amendments Are Violated When a

State Appellate Court Justifies a

Search By Holding That It Was the

Fruit of an Arrest That Was Not Made

But Which Could Have Been Made ...... 17

Ter

li

INDEX (Continued)

Page

RENIN os vin dn svn con caeebvey cous ielulln 19

Certificate of Service .......................... 20

isha ET Te OTT PCT Te a nae la

CASES:

Almeida-Sanchez v. United States, 413 U.S. 266

TOY etait eave cenetaree ie tT 15

Arkansas v. Sanders, 99 S.Ct. 2586 (1979) ieecete 2,11,14

Bayona v. State, 544S.W.2d 155 (Tex.Crim.App.

BUWNE Sak 6s € dictaenWakndad kala ce. 19

Cady v. Dombrowski, 413 U.S. 433 (1973) .... 12,13,14

Chambers pv. Maroney, 399 U.S. 42 (1970) .... ¥2,13,14

Cook v. State, 155 Tex. Crim. R. 580, 238 S.W.2d

Winidlnkiiesde eT Tee 17

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....14

Davis v. Mississippi, 394 U.S. 721 (1969)

reer ee 16

Dickey v. State, 552 S.W.2d 467 (Tex.Crim.App.

aided Metre eer ee LS 19

Ex parte Ross, 522 S.W.2d 214 (Tex.Crim.App.

siege eee Tey Orr st 19

Garcia v. State, 571 S.W.2d 896 (Tex.Crim.App.

MOM crhtsi9e: 6 Saws aed Lahig fg 2st oc 19

Ker v. California, 374 U.S. i er es 18

ili

CITATIONS (Continued)

Page

Lasker v. State, 573 S.W.2d 539 (Tex.Crim.App.

DON el avk rue sken ce Mckee ua eae eer Oe. 19

Legall v. State, 463 S.W.2d 731 (Tex.Crim.App

OPER cect erase Gass ee er hee ae ene c ihc 15

Luera v. State, 561 S.W.2d 497 (Tex.Crim.App

a SAT ee Pr eae ROLE Pin 16

Riojas v. State, 530 S.W. 298 (Tex.Crim.App

cM ari parE HE avn USS Nr ahd nea ho aie 10

Sanchez v. State, 582 S.W.2d 813 (Tex.Crim.App

TCL a a ne eee ie he a i cat 1,10

South Dakota v. Opperman, 428 U.S. 364 (1976) ..... 13

Taylor v. State, 4221 S.W.2d 403 (Tex.Crim.App.

1967), cert. den. 393 U.S. 916 (1968) ........... 18

United States v. Brignoni-Ponce, 422 U.S. 873

ct ROR EE Ee eT eaten SE ee 15

United States v. Chadwick, 433 U.S. 1 (1977) ..... 2,32,

12,14,18

United States v. Di Re, 332 U.S. 581 (1948) ......... 18

Wong Sun v. United States, 371 U.S. 471 (1963) .... 16

OTHER AUTHORITIES:

BP ce Oe BPO oo. a Sk ohn oko vicedetaconcs 2

Texas Civ. Stat. Ann., Art. 6701d, Secs. 140-

ee ed eee ote ee en 5,6,12,8a-22a

Texas Civ. Stat. Ann., Art. 6701I-1 ............. 16

EE=SS ~~

iv

CITATIONS (Continued)

Page

Texas Code of Crim. Proc. Ann., Art.

O58 .issscteeetagee le eee 4,16,7a,8a

Texas Code of Crim. Proc. Ann., Art. 14.01 . .4,5,16

Texas Code of Crim. Proc. Ann., Art. 37.09 ... 5,19

Texas Penal Code, Ann., Sec. 42.08

Yet recor Toes 4

United States Const., Amendment IV ....... 2,3,12,

14,16,17,18

United States Const., Amendment XIV,

a ETE TO 3,16,17,18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

JULIO CABRERA SANCHEZ,

Petitioner,

versus

THE STATE OF TEXAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

The petitioner Julio Cabrera Sanchez respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the Court of Criminal Appeals of

the State of Texas; that opinion was rendered on

February 12, 1979.

OPINION BELOW

The opinion of the Texas Court of Criminal Appeals,

reported in 582 S.W.2d 813, appears in the Appendix to

this petition. The motion for rehearing was denied

without written opinion.

2

JURISDICTION

The judgment of the Texas Court of Criminal

Appeals was entered on February 12, 1979. A timely

petition for rehearing en banc was denied on June 6,

1979, and this petition for certiorari was filed within

ninety days of that date. This Court’s jurisdiction is in-

voked under 28 U.S.C. Sec. 1257(3).

QUESTIONS PRESENTED

1. Whether a peace officer may, under the Fourth

Amendment to the Constitution of the United States,

search, without warrant, the locked trunk compart-

ment of an automobile which has been taken into police

custody and secured at the station house, when the

search was not pursuant to any standard police

procedure of the law enforcement agency.

2. Whether the principles enunciated in United States

v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 99

S.Ct. 2586 (1979), extend to protect the Fourth

Amendment privacy interests in the locked trunk

compartment of an automobile which has been taken

into police custody and searched by a peace officer in

the absence of a standard policy or procedure for doing

sO.

3. Whether the initial detention and arrest of

petitioner were based on less than the probable cause

required by the Fourth Amendment to the Constitu-

tion of the United States.

3

4. Whether a state appellate court may justify a

detention by providing, for the first time on appeal, an

ex post facto reason for the arrest, when that reason was

not articulated by the arresting officer.

STATUTORY PROVISIONS INVOLVED

United States Const., Amend. IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or af-

firmation, and _ particularly describing the

place to be searched, and the persons or things

to be seized.

United States Const., Amend. XIV, Sec. 1:

All persons born or naturalized in the Unit-

ed States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

4

Texas Penal Code, Ann., Sec. 42.08:

(a) An_ individual commits an offense

if he appears in a public place under the in-

fluence of alcohol or any other substance, to

the degree that he may endanger himself or

another.

(b) A peace officer or magistrate may

release from custody an individual arrested

under this section if he believes imprison-

ment is unnecessary for the protection of the

individual or others.

(c) It is a defense to prosecution under this

section that the alcohol or other substance

was administered for therapeutic purposes by

a licensed physician.

(d) An offense under this section isa Class

C misdemeanor.

Tesas Code of Crim. Proc. Ann., Art. 2.12:

See Appendix

Texas Code of Crim. Proc. Ann., Art. 14.01:

(a) A peace officer or any other person,

may, without a warrant, arrest an offender

when the offense is committed in his presence

or within his view, if the offense is one classed

5

as a felony or as an offense against the public

peace,

(b) A peace officer may arrest an offender

without a warrant for any offense committed

in his presence or within his view.

Texas Code of Crim. Proc. Ann., Art. 37.09:

An offense is a lesser included offense if:

(1) it is established by proof of the same or

less than all the facts required to establish the

commission of the offense charged;

(2) it differs from the offense charged only

in the respect that a less serious injury or risk

of injury to the same person, property, or

public interest suffices to establish its com-

mission.

(3) it differs from the offense charged only

in the respect that a less culpable mental state

suffices to establish its commission; or

(4) it consists of an attempt to commit the

offense charged or an otherwise included

offense.

Texas Civil Stat. Ann., Art. 6701d, Secs. 140-142:

See Appendix

6

Texas Civil Stat. Ann., Art. 6701/-1:

Any person who drives or operates an

automobile or any other motor vehicle upon

any public road or highway in this State, or

upon any street or alley within the limits of an

incorporated city, town or village, while such

person is intoxicated or under the influence of

intoxicating liquor, shall be guilty of a mis-

demeanor and upon conviction shall be pun-

ished by confinement in the county jail for not

less than three (3) days nor more than two (2)

years, and by a fine of not less than Fifty

($50.00) Dollars nor more than Five Hundred

($500.00) Dollars. Provided, however, that

the presiding judge in such cases at his discre-

tion may commute said jail sentence to a

probation period of not less than six (6)

months.

STATEMENT OF THE CASE

On October 20, 1975, Border Patrol Agents Melton

and Weinbrenner were on routine patrol on Highway

57 in Frio County, Texas. (Record of Motion to Sup-

press, pages 3-5, hereinafter abbreviated as, e.g., RMS

3-5.) At approximately 1:30 A.M., they were parked ad-

jacent to the intersection of Highway 57 and Highway

140! in an attempt to intercept the possible smuggling

of aliens. (RMS 5-6) Their attention was attracted toa

1_ This is approximately ninety highway miles from the border of

Texas and Mexico.

ea a a a ee

7

vehicle travelling away from the border on Highway 57

at a high rate of speed. (RMS 7) The agents were unable

to see the driver clearly or determine the make or

model of the vehicle; however, the rear of the vehicle

appeared to be heavily loaded, which led the agents to

believe that the car might contain illegal aliens. (RMS

7-8, 17; Record, page 54, hereinafter abbreviated, e.g.,

as R 54.)

As a result, the agents pursued the vehicle at speeds

in excess of eighty miles an hour but could not catch it.

(RMS 8) They then came upon the petitioner, who was

standing beside a vehicle and looking under its up-

raised hood. (RMS 9, 17)

Agent Melton parked his car behind petitioner's

vehicle and approached the petitioner, who appeared to

be adjusting the carburetor of his car. (RMS 9) Melton

smelled alcohol on petitioner’s breath but did not at

that point attempt to detain or arrest the petitioner.

(RMS 9) He did later testify that petitioner was not free

to leave at that time. (RMS 20) Melton identified

himself and ascertained that petitioner was a citizen of

the United States. (RMS 9, 19)

Melton then looked in the back seat of the car and

determined that, although beer cans were visible, there

was no one in the car. (RMS 9, 11) Next, Melton asked

if he could look in the trunk of petitioner’s car and was

told he could not. (RMS 9-10, 19-20)

8

Petitioner then “started” to drive away, but before he

could do so, Melton asked him to step out of his car; this

petitioner did. (RMS 10) Petitioner became visibly

angry, to which Melton responded by saying that he

“just wanted to check in his trunk.” (RMS 10) Melton

also informed petitioner that Melton believed he had

been drinking heavily and should not be driving. (RMS

10) Melton testified that he believed petitioner was in-

toxicated. (RMS 10-11)

The agents then called the Frio County sheriff, who

agreed to come out and assist the agents in making “a

determination as to whether or not the subject actually

had been drinking.” (RMS 11) At this time Melton told

petitioner that he was being arrested for driving under

the influence of alcohol. (RMS 11)

Petitioner asked to sit in his car. (RMS 11) Before

allowing him to do so, Meltor: looked in the car for

weapons; as he did, he noticed a sweet odor which he

could not identify. (RMS 12) At that time he found

nothing to persuade him that a crime was being com-

mitted. (RMS 21)

The sheriff and a deputy then arrived and placed

petitioner under arrest for driving while intoxicated.

(RMS 12-13, 32) Petitioner was taken to jail, and his car

was driven to the jail by the deputy sheriff. (RMS 13,

14)

After the car had been taken to the jail, Melton asked

the deputy if he had noticed the odor in the car; the

9

deputy replied that he had not. (RMS 13) Melton again

entered the car and again detected the odor, which he

decided, as he approached the rear window of the car,

was marihuana. (RMS 13) Melton then shined a flash-

light through a “speaker hole” near the back window of

the car and “saw a burlap bag of the type used to

transport marihuana.” (RMS 13, 24-25) Melton con-

cluded at this time that marihuana was in the trunk.

(RMS 13) However, because the petitioner had told

Melton that he did not have a key to the trunk, Melton

was not able to get into the trunk by ordinary means.

(RMS 13)

As a consequence, Melton and the deputy sheriff

removed the back seat of the car, reached into the trunk

area as best they could, and removed a small amount of

what the Border Patrol agents concluded was

marihuana. (RMS 13, 26) Agent Weinbrenner and the

deputy sheriff then opened the trunk with a wrecking

bar; inside they found approximately ninety-two

pounds of marihuana. (RMS 14)

On cross-examination, Melton stated that he never

saw petitioner behind the wheel of the vehicle; he also

testified that he never saw petitioner drive the car ona

public highway. (RMS 17-18) Agent Weinbrenner

testified to like effect at the trial on the merits. (R 25)

Sheriff Benny Sanders testified that he arrested peti-

tioner for driving while intoxicated because of the

statements of the Border Patrol agents. (RMS 37) He

10

also testified that after Melton detected the smell of

marihuana in the car, Melton and Weinbrenner and the

deputy sheriff informed him of their apparent dis-

covery; to this, the sheriff responded, “go ahead and

see” — an indication of his assent to the search of

retitioner’s trunk compartment. (RMS 32-33)

Petitioner was subsequently indicted for possession

of more than four ounces of marihuana, a felony. (R 2)

He filed a timely motion to suppress the evidence ob-

tained as a consequence of the allegedly illegal arrest

and search, and evidence was heard on the motion prior

to trial. (R 4-5, RMS 1-50) The court overruled the mo-

tion to suppress as well as petitioner’s timely trial ob-

jection, thus preserving the alleged error for review. (R

41, 43, 48) See, Riojas v. State, 530 S.W.2d 298, 301 (Tex.

Crim. App. 1975). After a trial before the court,

petitioner was found guilty and sentenced to serve four

years in the Texas Department of Corrections. (R 19,

22) His appeal to the Texas Court of Criminal Appeals

followed, in which the only disputed issue was the

validity of petitioner’s detention and arrest, and the

search of the trunk compartment of his vehicle. Sanchez

v. State, 582 S.W.2d 813 (Tex. Crim. App. 1979).

On appeal the Texas court held that the detention of

petitioner by the Border Patrol agents was valid — even

though they were not peace officers under Texas law

— because, In Texas, private citizens may arrest others

for the offense of public intoxication. The court also

held that under the circumstances of this case, the

11

various officers had probable cause to search

petitioner's automobile; therefore, even though the

trunk compartment was locked and secured in their

custody at the county jail, no search warrant was

necessary. Finally, the appellate court held that defen-

sive testimony as to the presence of speakers in the

“speaker holes” of petitioner’s automobile was not con-

clusive as to the validity of the search.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts With This

Court’s Opinions In UNITED STATES ov.

CHADWICK, 433 U.S. 1 (1977), And

ARKANSAS v. SANDERS, 99 S.Ct. 2586

(1979).

In United States v. Chadwick, 433 U.S. 1 (1977), the

Court held that a warrant must be obtained — even

though probable cause be present — when a locked

footlocker is taken from the open trunk compartment

of a suspect’s automobile and placed securely in police

custody. In Arkansas v. Sanders, 99 S.Ct. 2586 (1979),

Chadwick was cited as the Court invalidated a similar

search of an unlocked suitcase. Petitioner contends

that the Fourth Amendment principles which invali-

dated the searches of the closed containers in Chadwick

and Sanders should also provide protection for those

who place personal effects in the locked trunk com-

partments of their automobiles.

The trunk of an automobile, when compared to the

other parts of the vehicle, does not share in the

12

“diminished expectation of privacy which surrounds

the automobile.” United States v. Chadwick, supra, at 12. It

is in the main designed to be the temporary repository

of one’s personal effects, as is the suitcase. Its interior is

not ordinarily in plain view. And, in one state at least,

the annual inspection of vehicles does not extend to the

interior of the trunk compartment. VERNON’S TEX-

AS CIVIL STATUTES, ART. 6701d, Secs. 140-142.

(Appendix, pp. 8a-22a) Moreover, it is common

knowledge that automobiles are equipped with two dis-

tinguishable keys, one of which is used exclusively for

the trunk compartment. See generally, United States v.

Chadwick, supra, at 12-13.

Finally, it should be observed that the personal

effects which are placed in an automobile’s trunk com-

partment are often contained, not in sealed suitcases

and footlockers, but in open containers, such as bags

and baskets. It is respectfully contended that private

possessions placed in such containers, and then locked

in the trunk of an automobile, constitute precisely the

type of personal effects protected by the Fourth

Amendment.

2. The Case Before The Court Presents An

Important Exception To The Court's

Holding In CADY v. DOMBROWSKI, 413

U.S. 433 (1973).

In Chambers v. Maroney, 399 U.S. 42 (1970), the Court

held that the warrantless search of the interior of an

13

automobile at the police station was valid under cir-

cumstances in which probable cause existed for both

the arrest of the suspect and the search of his car at the

scene of his arrest. In Cady v. Dombrowski, 413 U.S. 43°

(1973), relying in part upon Chambers, this Court upheld

the warrantless search of the trunk compartment of

Dombrowski’s automobile even though no probable

cause existed for the search. The intrusion was

justified as part of the normal caretaking procedures of

the local police. Accord, South Dakota v. Opperman, 428 U.S.

364 (1976).

In Dombrowski, the Court emphasized two factual

considerations in determining that the search was not

unreasonable. The first, also present in petitioner's

case, was that the police had already taken custody of

the suspect’s vehicle for reasons of safety: the suspect

appeared intoxicated and the vehicle might have prov-

ed to be a nuisance along the highway. 413 U.S., at 442-

443.

However, the second important factual bastion of

Dombrowski is not present in petitioner’s case: in the

record of this case there is no testimony or other

evidence that the search of the trunk compartment was

part of any normal procedure or inventory to protect

the police and public. Cf., South Dakota v. Opperman, supra,

at 369. Instead, the search was instituted solely to

ferret out suspected criminal activity. In such a case it is

essential to have the protection of a decision made by a

14

neutral and detached magistrate, especially where — as

here — there is no evidence that the vehicle was in

danger of being taken away or in any way vandalized.

See, Coolidge v. New Hampshire, 403 U.S. 443 (1971).

It is important to distinguish between this case on

the one hand, and the Chambers/Cady line of cases on the

other. In Arkansas v. Sanders, supra, at 2589, the Court

observed that courts and law enforcement officials

often find it difficult to draw the careful distinctions

which a proper interpretation of the Fourth Amend-

ment requires. The Court then suggested that its re-

cent decision in Chadwick was an example of how such

difficulties may be intensified by the necessarily small

factual differences between cases which sometimes

make large differences in the application of the law.

Petitioner respectfully contends that this Court’s re-

cent holdings in Chadwick and Sanders suggest the need

for determining whether the warrantless search of the

locked trunk in this case was valid under the Fourth

Amendment.

3. The Initial Detention Of Petitioner By

The Border Patrol Agents Was Without

Probable Cause.

In the instant case, both Border Patrol agents

testified — Melton at the hearing on the motion to sup-

press and Weinbrenner at trial on the merits. Neither

was able to identify the make or model of the vehicle

15

which sped past them, nor was either able to see the

person who was driving; all that was noticeable was

that the vehicle seemed loaded down in the rear and

had only one person visible in it. (RMS 7-8, 17; R 54)

Neither officer testified to facts which showed that

the car they originally saw speeding past them was the

car in petitioner’s possession several miles down the

road. Nor was either officer able to say that petitioner

was the man in the passing car. It thus appears that the

agents simply stopped the first car they came upon

after their pursuit of the speeding vehicle proved

fruitless. This amounts to no probable cause at all. Com-

pare, United States v. Brignoni-Ponce, 422 U.S. 873 (1975);

Almeida-Sanchez v. United States, 413 U.S. 266 (1973).

Nor can it be argued that the agents stopped to assist

an apparently stricken motorist. Compare, Legall v. State,

463 S.W.2d 731 (Tex. Crim. App. 1971). There is no

evidence in the record to support such an argument.

In addition, petitioner contends that probable cause

to stop and detain is not satisfied where Border Patrol

agents, ninety miles from the Mexican border, see

nothing more than a vehicle speeding back from Mex-

ico, at the end of a long weekend,? with a loaded trunk.

See, Linited States v. Brignoni-Ponce, supra; Almeida-Sanchez

v. United States, supra.

2 As the Court may judicially notice, October 20, 1975, was a Monday.

Petitioner was detained by the agents shortly after midnight.

16

It was solely because of this unlawful detention that

petitioner was arrested for driving while intoxicated.

The record contains no evidence that the agents still

suspected petitioner of illegally transporting aliens.

Thus, the illegal detention led directly to the arrest

for driving while intoxicated. And, because the search

of petitioner’s trunk was the direct and almost im-

mediate product of the arrest, it must be concluded that

the search was the undiminished fruit of the illegal

detention. Hence, the search was illegal, in violation of

the Fourth Amendment, made applicable to the states

through the Fourteenth. Wong Sun v. United States, 371

U.S. 471 (1963); Davis v. Mississippi, 394 U.S. 721 (1969).

4. The Arrest Which Led Directly To The

Search Of Petitioner’s Trunk Compart-

ment Was Illegal Under Texas Law.

Under Texas law, Border Patrol agents are not peace

officers. TEX. CODE CRIM. PROC. ANN, Art. 2.12.

Luera v. State, 561 S.W.2d 497, 500 (Tex. Crim. App.

1978). One who is not a peace officer may arrest

another without a warrant only for a felony or an

offense against the public peace. TEX. CODE CRIM.

PROC. ANN., Art. 14.01.

The offense of driving while intoxicated is a mis-

demeanor. TEXAS CIV. STAT. ANN., Art. 6701-1.

Under the 1925 Texas Penal Code, driving while in-

toxicated could not be classified as an offense against

17

the public peace because only those offenses contained

in Title 9 (titled “Offenses Against the Public Peace”) of

that Code were such offenses. Cook v. State, 155 Tex.

Crim. R. 580, 238 S.W.2d 200 (1951). The driving while

intoxicated statute was then contained in Title 13 of

that Code.

On January 1, 1974, a new Texas Penal Code became

effective. There is no portion of the Code titled

“Offenses Against the Public Peace.” However, the

subject matter of virtually all of the statutes contained

in Title 9 of the 1925 Code is now contained in Title 9 of

the 1974 Code, which is titled “Offense Against Public

Order and Decency.” Petitioner submits that the Texas

courts would construe offenses against the public

peace to be those contained in Title 9 of the 1974 Code.

It follows that the Border Patrol agents were not

authorized to detain or arrest petitioner for driving

while intoxicated. The fruit of their unlawful detention

and arrest was the search of the trunk of petitione~’s

car.

5. Both The Fourth And Fourteenth

Amendments Are Violated When A State

Appellate Court Justifies A Search By

Holding That It Was The Fruit Of An

Arrest That Was Not Made But Which

Could Have Been Made.

The Texas court did not hold that the Border Patrol

agents were authorized to detain or arrest petitioner

18

for driving while intoxicated. Instead, the court ap-

parently held that, since the agents could have arrested

petitioner for public intoxication, the detention was

proper. 582 S.W.2d, at 814-815.

A search may not be justified by what it produces. Ker

v. California, 374 U.S. 23, 40-41 (1963). United States v. Di

Re, 332 U.S. 581, 595 (1948). As the Texas court itself

has said, a search may not be justified by “after-

acquired facts.” Taylor v. State, 4221 S.W.2d 403, 406 (Tex.

Crim. App. 1967), cert den. 393 U.S. 916 (1968).

There is no evidence that the agents, or any other of-

ficer, ever arrested petitioner for public intoxication,

formerly an “offense against the public peace” and now

— since January 1, 1974, an “offense against public

order and decency.” This is an after-acquired fact used

to justify the search, in violation of the Fourth Amend-

ment, and also in violation of the Fourteenth

Amendment’s guarantee of due process of law. What

an officer might have done, or could have done, should

not be utilized to uphold an otherwise invalid search.

Compare, United States v. Chadwick, supra, at 15-16 (what a

magistrate probably would have done not available to

uphold search).

Nor can it be argued that the hypothetical arrest for

public intoxication was valid because that offense is a

lesser included offense of the offense of driving while

intoxicated. The Texas court has held that an offense is

not a lesser included offense of another if it contains a

19

necessary element not required as part of the proof of

the allegedly greater offense. TEX. CODE CRIM.

PROC. ANN., Art. 37.09; Lasker v. State, 573 S.W.2d 539

(Tex. Crim. App. 1978); Garcia v. State, 571 S.W.2d 896

(Tex. Crim. App. 1978); Bayona v. State, 544S.W.2d 155

(Tex. Crim. App. 1976).

The Texas court has held that anecessary element of

public intoxication is the requirement that the actor

may be a danger to himself or another. Dickey v. State,

552 S.W.2d 467 (Tex. Crim. App. 1977). This is not an

element of driving while intoxicated. Ex parte Ross, 522

S.W.2d 214 (Tex. Crim. App. 1975). Public intoxi-

cation may not therefore be a lesser included offense of

driving while intoxicated.

Petitioner therefore contends that his right to due

process and to be free of unreasonable searches and

seizures has been violated.

CONCLUSION

For the reasons stated, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Criminal Appeals of Texas.

Respectfully submitted,

RICHARD D. WOODS

126 Villita

San Antonio, Texas 78205

20

DAVID K. CHAPMAN

504 W. 8th Street

Austin, Texas 78701

GERALD H. GOLDSTEIN

2900 Tower Life Building

San Antonio, Texas 78205

Counsel for Petitioner

September 4, 1979

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of August, 1979,

three copies of the Petition for Writ of Certiorari were

mailed, postage prepaid to Mark White, Esq., Attorney

General of Texas, Box 12548, Capitol Station, Austin,

Texas 78711, and to Alger Kendall, Jr., District At-

torney, 81st Judicial District, 3rd Floor, Karnes County

Courthouse, Karnes City, Texas 78118, as Counsel for

Respondent. I further certify that all parties required to

be served have been served.

Gerald H. Goldstein

2900 Tower Life Building

San Antonio, Texas 78205

Counsel for Petitioner

la

APPENDIX

Julio Cabrera Sanchez,

Appellant,

versus

The State of Texas,

Appellee.

No. 55657

Court of Criminal Appeals of Texas,

Panel No. 3.

Feb. 21, 1979.

Rehearing En Banc Denied June 6, 1979.

Before DOUGLAS and TOM G. DAVIS, JjJ., and

WILLIAM J. CORNELIUS, Commissioner.

OPINION

WILLIAM J. CORNELIUS, Commissioner.

In a jury trial, Julio Sanchez was convicted of the

offense of possession of more than four ounces of

marihuana, a third degree felony. Punishment was set

at four years confinement.

The sufficiency of the evidence is not challenged.

Sanchez’s sole ground of error is that the trial court

2a

should have granted his motion to suppress evidence of

the contraband because it was obtained by an illegal

search.

At about 1:30 a. m. on the day in question, United

States Border Patrol Agents Melton and Weinbrenner

observed a vehicle traveling on Highway 35 at a high

rate of speed. Only one person was in the automobile.

The officers gave chase but were unable to overtake

the vehicle. A few minutes later they came upon the

same car stopped on the highway. Sanchez was at the

front of the automobile looking under the hood. The

officers asked what was wrong and he answered that

he was having carburetor trouble. The officers smelled

a strong odor of alcohol and decided that Sanchez was

intoxicated. They had also noticed that his automobile

trunk appeared to be heavily loaded, and they asked if

he would allow them to look in the trunk. He refused.

The officers then detained him and called the sheriff's

department. Shortly thereafter, Sheriff Deputies

Sanders and Martinez arrived. They arrested Sanchez

and took him to the sheriff's office. Agent Melton testi-

fied that, while waiting for the deputies to arrive, he

allowed Sanchez to sit in the back seat of the automo-

bile in order to keep warm, and that as he opened the

door to let Sanchez in the automobile he smelled a

sweet, musty odor which he could not smell in the front

seat. When they arrived at the sheriff's department

headquarters, Sanchez was charged with the offense of

driving while intoxicated. Agent Melton told Deputy

Martinez of the smell which he had noticed, and they

examined the back seat of the car with the aid of a

flashlight. Through two stereo speaker holes in the

3a

back of the car, they could see something behind the

seat in the trunk which looked like large burlap bags

which are commonly used to transport marihuana.

They forcibly opened the trunk and discovered that the

bags contained approximately five kilo bricks of mari-

huana. The trial court overruled the motion to sup-

press.

Sanchez attacks the validity of the search on several

grounds. First, He asserts that his detention was illegal

because the United States Border Patrol agents, not be-

ing Texas peace officers,1 did not have the authority to

arrest or detain him except for an offense against the

immigration laws. We overrule this contention. The

border patrolmen did not stop Sanchez. They did,

however, detain him after they encountered him

stopped on the highway. They testified that, based

upon the smell of alcohol and the suspect’s actions, it

was their opinion that he was intoxicated. Public

drunkenness, to the extent that one may endanger

himself or another, is an offense against the public

peace. V.T.C.A., Penal Code, Sec. 42.08; Heck v. State,

507 S.W.2d 737 (Tex. Cr. App. 1974); McEathron v. State,

163 Tex.Cr.R. 619, 294 S.W.2d 822 (1956). A private

citizen may, without warrant, arrest a person found

drunk in a public place. Art. 14.01, V.A.C.C.P.; Heck v.

State, supra; McEathron v. State, supra. Sanchez’s deten-

tion by the border patrolmen until they could deliver

him tothe duly constituted police officers of Frio Coun-

ty was proper.

1 Art. 212, V.A.C.C.P. The statute was amended by the 65th

Legislature to provide that U.S. Border Patrolmen, although not

peace officers of the State, shall have the power of arrest, search

and seizure as to felony offenses only.

4a

Officer Melton had observed that the trunk of

Sanchez’s automobile appeared to be heavily loaded.

Before going to the sheriff's office he noticed, in the

vehicle’s rear, an odor of a substance which he later

decided was marihuana. When the officers arrived only

a few minutes later at the sheriff's department,

Patrolman Melton advised Deputy Martinez of the

odor. Together they !5oked into the back seat and saw,

through the speaker holes, burlap bags of the typecom-

monly used to transport marihuana. Those cir-

cumstances were sufficient to constitute probable

cause to search the trunk of the automobile. It was not

necessary that exigent circumstances exist. The fact

that the automobile was being held at the sheriff's

department and could have been held there long

enough to secure a warrant before conducting the

search does not make the search unlawful or unreason-

able. Texas v. White, 4228 U.S. 67, 96S.Ct. 304, 46 L.Ed.2d

209, reh. den., 423 U.S. 1081, 96 S.Ct. 869, 47 L.Ed.2d

91 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419, reh. den., 400 U.S. 856, 915S.Ct.

23, 27 L.Ed.2d 94 (1970). For constitutional purposes,

there is no difference between seizing and holding an

automobile while securing a search warrant and incon-

ducting an immediate search without a warrant. If

probable cause to search exists, either course is reason-

able under the Fourth Amendment. Chambers. v.

Maroney, supra.

Lastly, it is argued that the motion to suppress

should have been granted because defense testimony

5a

proved that the speakers in the rear of the automobile

were in place, both before and after the search, thus

casting doubt upon the officers’ testimony that they

saw the burlap bags through the speaker holes. We can-

not agree. There was no conclusive proof that the

speakers were in place at all times, or at the very time of

the search. The conflicts in the testimony were for the

resolution of the trial judge, and his findings of the

facts will not be overturned if they are supported by

sufficient evidence. Furthermore, it was not necessary

that the officers be able to see into the trunk for the

search to be justified. The smell of marihuana in the

rear of the automobile, coupled with an absence of any

contraband in view in the back seat, would have been

sufficient probable cause, under all of _the cir-

cumstances here, to justify a search of the trunk.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

CLERK’S OFFICE

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

I, THOMAS LOWE, Clerk of the Court of Criminal

Appeals of Texas, do hereby certify that in Cause No.

55,657 styled:

6a

JULIO CABRERA SANCHEZ,

Appellant,

versus

THE STATE OF TEXAS,

Appellee.

the judgment of the 81ST, JUDICIAL DISTRICT

Court of FRIO County, Texas was affirmed on

FEBRUARY 21, 1979, on JUNE 6, 1979 the appellant’s

motion for rehearing en banc was denied and on JUNE

8, 1979 the mandate of this Court issued.

THEREFORE, WITH THE DENYING OF THE

APPELLANT’S MOTION FOR REHEARING EN-

BANC this cause was disposed of by this Court on

JUNE 8, 1979, the appellant having exhausted all

remedies in this, The Court of Criminal Appeals of

Texas and the judgment has now become final-on the

docket of this Court.

WITNESS my hand and the seal of said Court, at my of-

fice in Austin, Texas this the 8TH day of JUNE, A. D.

1979.

ls) THOMAS LOWE

THOMAS LOWE, Clerk of

the COURT OF

CRIMINAL

APPEALS OF TEXAS

7a

TEXAS CODE OF CRIM. PROC. ANN., Art. 2.12

(as effective on October 20, 1975):

The following are peace officers:

(1) sheriffs and their deputies;

(2) constables and deputy constables;

(3) marshals or police officers of an incorporated

city, town, or village;

(4) rangers and officers commissioned by the Public

Safety Commission and the Director of the Depart-

ment of Public Safety;

(5) investigators of the district attorneys’, criminal

district attorneys’, and county attorneys’ offices;

(6) law enforcement agents of the Alcoholic

Beverage Commission;

(7) each member of an arson investigating unit of a

city, county or the state;

(8) any private person specially appointed to ex-

ecute crimirial process;

(9) officers commissioned by the governing board

of any state institution of higher education, public

junior college or the Texas State Technical Institute;

8a

(10) officers commissioned by the Board of Con-

trol;

(11) law enforcement officers commissioned by the

Parks and Wildlife Commission;

(12) airport security personnel commissioned as

peace officers by the governing body of any political

subdivision of this state that operates an airport served

by a Civil Aeronautics Board certificated air carrier;

and

(13) municipal park and recreational patrolmen and

security officers.

TEXAS CIVIL STAT. ANN.,

ART. 6 6701d, SECS. 140-142:

ARTICLE XV — 1NSPECTION OF VEHICLES

Sec. 140. (a) Every owner of a motor vehicle,

trailer, semitrailer, pole trainer, or mobile home,

registered in this state and operated on the highways of

this state, shall have the tires, brake system (including

power brake unit), lighting equipment, horns and

warning devices, mirrors, windshield wipers, front seat

belts in vehicles where seat belt anchorages were part

of the manufacturer’s original equipment on the vehi-

cle, steering system (including power steering), wheel

assembly, safety guards or flaps if required by Section

139A of this Act, exhaust system, and exhaust emis-

9a

sion system inspected at state-appointed inspection

Stations or by State Inspectors as hereinafter pro-

vided. Provisions relating to the inspection of trailers,

semitrailers, pole trailers, or mobile homes shall not

apply when the gross weight of such vehicles and the

load carried thereon is four thousand (4,000) pounds or

less. Only the mechanism and equipment designated in

this section may be inspected, and the owner shall not

be required to have any other equipment or part of his

motor vehicle inspected as a prerequisite for the

issuance of an inspection certificate.

(b) If such inspection discloses the necessity for ad-

justments, corrections, or repairs, the vehicle shall be

adjusted, corrected, or repaired before a certificate is

issued as hereinafter provided. The owner may have

such adjustments, corrections, ore repairs made by

such qualified person or persons as he may choose, sub-

ject to reinspection as hereinafter provided.

(c) Official inspection stations appointed and

supervised by the State of Texas shall make all inspec-

tions pursuant to the provisions of this Section, except

as provided in subdivision (d) hereof. The Department

shall cause one (1) inspection to be made in the year

commencing with the effective date of this Act, and an-

nually thereafter. If the motor vehicle, trailer, semi-

trailer, pole trailer or mobile home, registered in this

State, is damaged to the apparent extent that it would

require repair before passing state inspection, the in-

vestigating officer shall remove the inspection certifi-

10a

cate from the vehicle windshield and shall give the

operator of the vehicle a dated receipt. Within thirty

(30) days of the date indicated on the receipt, the vehi-

cle shall be reinspected. The periods of inspection shall

be fixed by the Department, provided, however, that at

no time shall a certificate of inspection or a receipt fora

certificate of inspection be required or demanded as a

condition precedent to securing a license plate for any

motor vehicle, regardless of any period or periods of

inspection as may be fixed by the Department. The

Department shall have power to make rules and regu-

lations, not inconsistent with law, with respect to the

periods of inspection.

(d) The Department may, in its discretion, permit

inspection as herein provided to be made by State

inspectors under such terms and conditions as the

Department may prescribe. Provided, however, the

Department may authorize the acceptance in this State

of a certificate of inspection and approval issued in an-

other state having a similar inspection law and may ex-

tend the time within which a certificate shall be ob-

tained by the resident owner of a vehicle which was not

in this State during the time an inspection was re-

quired.

(e) After the fifth (Sth) day following the expira-

tion of the period designated for the inspection, no per-

son shall operate on the highways of this State any

motor vehicle registered in this State unless a valid cer-

tificate of inspection is displayed thereon as required by

lla

this Section. It is a defense to a prosecution under this

Section that a valid inspection permit for the vehicle is

in effect at the time of the arrest. Any peace officer of

the Department of Public Safety, or any sheriff or

deputy sheriff, or any City policeman who shall ex-

hibit his badge or other signs of authority, may stop

any vehicle not displaying this inspection certificate as

required by the Department and require the owner or

operator to produce an official inspection certificate for

the Vehicle being operated.

(f) All motor-assisted bicycles shall be subject to an-

nual inspection in the same manner as are motor-

cycles, except (1) the fee for inspection shall be Two

Dollars ($2.00), One Dollar ($1.00) of which shall be

paid to the Department to be placed in the Motor Vehi-

cle Inspection Fund and used for the purposes pre-

scribed by law, and (2) the only items of equipment re-

quired to be inspected are the brakes, headlamps, and

reflectors, which are required to comply with the

standards prescribed in Section 184 of this Act. The

Department shall promulgate rules and regulations re-

lating to the inspection of motor-assisted bicycles and

the issuance and display of inspection certificates with

respect to those vehicles.

(g) Any person operating a vehicle on the highways

of this State, other than a vehicle licensed in another

State and being temporarily and legally operated under

a valid reciprocity agreement, in violation of the pro-

visions of this Act or without displaying a valid inspec-

12a

tion certificate or having equipment which does not

comply with the provisions of Article XIV of this Act is

guilty of a misdemeanor and on conviction shall be

punished as provided in Section 143 of this Act.

State appointed inspection stations

Sec. 141. (a) The Department may establish

state-appointed inspection stations to carry out the

provisions of this Section. Such stations may be located

anywhere in the state, and should any be established or

appointed, there shall be at least one (1) for each coun-

ty. The Department is authorized to furnish instruc-

tions to, and to supervise official inspection stations

and mechanics for inspection of motor vehicles, trail-

ers, semi-trailers, pole trailers, and mobile homes for

the proper and safe performance of the required items

of inspection. The certification of persons to inspect

vehicles shall be in accordance with the rules and regu-

lations promulgated by the Department. Every person

desiring to operate as an official inspection station shall

file an application for a certificate of appointment with

the Department.

The application shall be made upon a form pre-

scribed and furnished by the Department, and shall set

forth the name of the applicant, the name under which

the applicant transacts or intends to transact business,

the location of his place of business within the state,

13a

and such other information as the Department may re-

quire. If the applicant has or intends to have more than

one place of business within the state, a separate appli-

cation shall be made for each place of business.

If the applicant is an association, the application shall

set forth the names and addresses of the persons con-

stituting the association, and if a corporation, the

names and addresses of the principal officers thereof,

and any other information prescribed by the Depart-

ment for purposes of identification. The application

shall be signed and verified by oath or affirmation by

the owner, if a natural person; in the case of a corpora-

tion, by an executive officer thereof or some person

specifically authorized by the corporation to sign the

application, to which shall be attached written evi-

dence of his authority.

Only such locations which fulfill the Department’s

requirements and whose owners or proprietors comply

with Department regulations shall qualify and be

appointed and issued a certificate. Upon approval of an

application, the Department shall issue to the owner a

certificate of appointment as an official inspection

station for the place of business within the state set

forth in the application.

Certificates of appointment shall not be assignable,

and shall be valid for the owners in whose names issued

and for the transaction of business at the place desig-

nated therein, and shall at all times be conspicuously

displayed at the place for which issued.

14a

An applicant for appointment as an inspector shall

submit with his first application a certificate fee of Five

Dollars ($5). An individual's first appointment as an in-

spector is effective until August 31 of the year follow-

ing the date of appointment. Thereafter, appoint-

ments as inspectors shall be made for one-year periods,

and the certificate fee for each year shall be Five Dollars

($5).

Upon being advised that an application will be ap-

proved, an applicant for an appointment as an inspec-

tion station shall pay a fee of Thirty Dollars ($30)

which shall constitute the certificate fee until August

31st of the odd-numbered year following the date of

appointment. Thereafter, appointments of stations

shall be made for two-year periods and the certificate

fee for each such period shall be Thirty Dollars ($30).

All certificate fees shall be placed in a fund in the State

Treasury to be known as the Motor Vehicle Inspection

Fund and shall be used by the Department in the ad-

ministration of this Act.

(b) Any owner of an official inspection station who

by himself, agent, servant, or employee, violates any

provision of Section 140, 141, or 142 of this Act, or re-

quires the repair of any mechanism or equipment other

than that set forth in the uniform standards of safety

items to be inspected as established, shall upon convic-

tion, be punished by a fine not exceeding Two Hundred

Dollars ($200).

15a

(c) The fee for compulsory inspection to be made

under this Section shall be Four Dollars ($4.00). One

Dollar ($1.00) of each fee shall be paid to the Depart-

ment and shall be placed in the Motor Vehicle Inspec-

tion Fund for the purpose of paying the expense of the

administration of this law. The Department may re-

quire each official inspection station to make an ad-

vance payment of One Dollar ($1.00) for each inspec-

tion certificate furnished to it, and the money so re-

ceived shall be placed in the Motor Vehicle Inspection

Fund, and no further payment to the Department shall

be required upon issuance of the certificate. If such ad-

vance payment has been made, the Department shall

refund to the inspection station the amount of One

Dollar ($1.00) for each unissued certificate which the

inspection station returns to the Department in

accordance with rules and regulations promulgated by

the Department.

If an inspection disclosed the necessity for adjust-

ments, corrections, or repairs, such vehicle shall be re-

inspected once within seven (7) days free of charge at

the same inspection station after the adjustments, cor-

rections, or repairs have been made. Any such vehicle

under the terms of this Act, if involved in an accident

subsequent to the required inspection, which accident

affects the safe operation of any item of inspection,

shall return to an inspection station after adequate re-

pairs are made. The subsequent inspection shall be as if

the vehicle had not been inspected before. The inspec-

tion fee shall be charged for reinspection.

16a

(d) No certificate of inspection shall be issued by

any inspector or inspection station until the vehicle has

been inspected and found to be in proper and safe con-

dition and to comply with the uniform standards of

safety, inspection rules and regulations, and laws of

this state. hs. person shall make, issue, or knowingly

use an imitation or counterfeit of an official inspection

certificate.

No person shall display or cause or permit to be dis-

played any inspection certificate knowing the same to

be fictitious or issued for another vehicle or issued

without the required inspection having been made. No

person may transfer an inspection certificate from one

windshield or location to another windshield or loca-

tion.

No person shall perform an inspection or issue an in-

spection certificate without such person first having

been certified to do so by the Department.

No person shall drive or move on any highway any

motor vehicle, trailer, semi-trailer, pole trailer, mobile

home, or combination thereof unless the equipment

upon any and every said vehicle is in good working

order and adjustment as required in this Act and said

vehicle is in such safe mechanical condition as not to en-

danger the driver or other occupant or any person or

property.

cil

eeeit8: :

17a

(e) The Department may appoint as official inspec-

tion stations, for the limited purpose of inspecting

vehicles owned by political subdivisions and agencies of

the state, vehicle maintenance facilities owned and

operated by the political subdivisions or agencies. The

political subdivisions and agencies may not be required

to pay the vehicle-inspection fee provided for in Sub-

section (c) of this section, but shall pay to the Depart-

ment an advance payment of One Dollar ($1.00) for

each inspection certificate issued to it. The funds re-

ceived by the Department shall be placed in the Motor

Vehicle Inspection Fund for the purpose of paying the

expense of the administration of this Act. Inspection

stations appointed under this subsection must satisfy

all requirements set forth in Sections 140, 141, and 142

of this Act except the provisions relating to the fee con-

tained in Subsection (a) of this section. No officer,

employee, or inspector of any political subdivision or

agency shall place or cause to be placed any inspection

certificate received from the Department under the

provisions of this subsection on any vehicle other than

a vehicle owned by the political subdivision or agency.

(f) The Director may deny an application for a

license or revoke or suspend an outstanding certificate

of any inspection station or the certificate of any per-

son to inspect vehicles, in addition to action taken un-

der Subsection (g) of this section, for any of the foliow-

ing reasons:

(1) issuing a certificate without required adjust-

ments, corrections, or repairs having been made when

18a

an inspection disclosed the necessity for those adjust-

ments, Corrections, or repairs;

(2) refusing to allow the owner of the vehicle to

have required corrections or adjustments made by any

qualified person he may choose;

(3) issuing an inspection certificate without having

made an inspection of the vehicle:

(4) knowingly or willfully issuing an inspection cer-

tificate for a vehicle without the required items of in-

spection or with items which were not at the time of

issuance in good condition and in conformity with the

laws of this state or in compliance with rules of the

Commission;

(5) failure tocharge the required fee for inspection;

(6) charging more thanthe required inspection fee;

(7) issuing an inspection certificate without being

certified to do so by the Department;

(8) proof of unfitness of applicant or licensee under

standards set out in this Act or in Commission rules;

(9) material misrepresentation in any application or

any other information filed under this Act or Commis-

sion rules;

19a

(10) willful failure to comply with this Act or any

rule promulgated by the Commission under the pro-

visions of this Act;

(11) failure to maintain the qualifications for a

license; or

(12) any act or omission by the licensee, his agent,

servant, employee, or person acting in a representa-

tive capacity for the licensee which act or omission

would be cause to deny, revoke, or suspend a license to

an individual licensee.

When there is cause to deny an application for a cer-

tificate of any inspection station or the certificate of

any person to inspect vehicles or revoke or suspend the

outstanding certificate, the Director shall, in less than

thirty (30) days before refusal, suspension, or revoca-

tion action is taken, notify the person, in writing, in

person, or by certified mail at the last address supplied

to the Department by the person, of the impending re-

fusal, suspension, or revocation, the reasons for taking

that action, and of his right to an administrative hear-

ing for the purpose of determining whether or not the

evidence is sufficient to warrant the refusal, suspen-

sion, or revocation action proposed to be taken by the

Director. If, within twenty (20) days after the personal

notice of the notice is sent or notice has been deposited

in the United States mail, the person has not made a

written request to the Director for this administrative

hearing, the Director, without a hearing, may suspend

20a

or revoke or refuse to issue any certificate. On receipt

by the Director of a written request of the person

within the twenty-day (20-day) period, an oppor-

tunity for an administrative hearing shall be afforded

as early as is practicable. In nocase shall the hearing be

held less than ten (10) days after written notification,

including a copy of the charges, is given the person by

personal service or by certified mail sent to the last ad-

dress supplied to the Department by the applicant or

certificate holder. The administrative hearing in these

cases shall be before the Director or his designee. The

Director or his designee shall conduct. the ad-

ministrative hearing and may administer oaths and

issue subpoenas for the attendance of witnesses and

the production of relevant books, papers, or docu-

ments. On the basis of the evidence submitted at the

hearing, the Director acting for himself or upon the

recommendation of his designee may refuse the

application or suspend or revoke the certificate.

Any person dissatisfied with the action of the Direc-

tor, without filing a motion for rehearing, may appeal

the action of the Director by filing a petition within

thirty (30) days after the action is taken in a district

court in thecounty where the person resides or in a dis-

trict court of Travis County, and the court is vested

with jurisdiction, and it shall be the duty of the court to

set the matter for hearing upon ten (10) days written

notice to the Director and the attorney representing

the Director. The court in which the petition of

appeal is filed shall determine whether any action of the

2la

Director shall be suspended pending hearing and enter

its order accordingly, which shall be operative when

served upon the Director, and the Director shall pro-

vide the attorney representing the Director with a copy

of the petition and order. The Director shall be repre-

sented in these appeals by the district or county at-

torney of the county, or the attorney general, or any of

their assistants.

(g) No person who performs an inspection at a

state-appointed inspection station may fraudulently

represent to an applicant that a mechanism or item of

equipment required to be inspected must be repaired,

adjusted, or replaced before the vehicle will pass in-

spection when that is not the case. The Department

may cancel or suspend the certificate of appointment of

any state-appointed inspection station or the certifi-

cate of the person performing the inspection if it finds,

after notice and hearing, that a violation of this Section

occurred at the inspection station.

Safety standards and inspection certificates

Sec. 142. (a) The Public Safety Commission shall

establish uniform standards of safety whenever applic-

able with respect toitems to be inspected as provided by

Section 140 of this Act and shall list those items to be

inspected in conformity with these standards estab-

lished as provided by law. The list of items to be

inspected and uniform standards of safety shall be

posted in every official inspection station. Every vehicle

22a

inspected shall conform in all respects to the uniform

standards of safety and the list of items to be inspected

established pursuant to this Section.

(b) The Department shall furnish serially number-

ed certificates of inspection to inspection stations. Each

certificate, when issued, shall bear such information as

required by the Department for the type of vehicle that

was inspected. The certificate shall be invalid after the

end of the twelfth month in which the vehicle was last

inspected, approved, and the certificate of inspection

issued. A certificate of inspection and approval for any

vehicle shall be attached to or produced for such vehicle

as the Department shall require. The Department shall

require that certificates for motorcycles be attached to

the rear of the vehicle near the license plate. A record

and report as prescribed by the Department shall be

made of every inspection and every certificate so

issued. No unused certificates of inspection represent-

ing a prior inspection period shall be issued after the

beginning of the next ensuing period.

(c) The Department may adopt rules necessary for

the administration and enforcement of Article XV of

this Act.