Demand Letter: Fix the Failure to Pay Program
April 4, 2019
On Thursday, April 4, 2019, Equal Justice Under Law sent a letter to Attorney General Ken Paxton and other state officials regarding the Texas Failure to Appear/Failure to Pay Program, otherwise known as the OmniBase Services, promising civil litigation if changes are not made to the program that would make it more equitable.
The letter in its entirety is published below.
Dear Mr. Paxton,
We write to you today because our organization is deeply concerned about Texas’s Failure to Appear/Failure to Pay Program, codified in Tex. Transp. Code Ann. § 706.004, which allows the Texas Department of Public Safety to place a hold on an individual’s driver’s license when that person misses a court date or fails to pay certain fines and costs. The Failure to Appear/Failure to Pay program (“OmniBase Program”) includes no exceptions for non-willful failure to pay and discriminates against low-income and indigent Texans in violation of the United States Constitution. We are considering federal court litigation to challenge targeted and unlawful license deprivations under § 706.004 — however, we write to you in the hope that we may avoid litigation by bringing our constitutional concerns to your attention outside the courts.
Our organization, Equal Justice Under Law, is a Washington, D.C.-based nonprofit that litigates wealth-based discrimination across the country, and the enforcement of driver’s license suspensions against people living in poverty (who pose no threat to traffic safety) is one of our core issues. In fact, we are currently engaged in a lawsuit against the Chairman of the Texas Department of Public Safety and other state officials challenging Texas’s Driver Responsibility Program (Rodriguez v. Mach et al., 5:18-cv-01265-XR). We are also currently challenging suspension statutes in Michigan (Fowler v. Johnson) where we have won a state-wide preliminary injunction; Montana (DiFrancesco v. Fox); and Missouri (Wright v. Family Support Division). The OmniBase Program contains many of the same constitutional infirmities as the laws challenged in these cases.
The OmniBase Program, as codified in section 706.004, violates the United States Constitution both facially and as it is applied to indigent Texans. The program is a clear example of unconstitutional wealth-based discrimination in violation of equal protection and substantive due process because it imposes a penalty for failure to pay without any indigence exception or contemplation of alternatives for those unable to pay. The Program also unlawfully prevents citizens from exercising their substantive due process right to travel without any basis in public safety concerns. The Program violates procedural due process rights, as section 706.004 does not guarantee an ability-to-pay hearing for those facing a license hold, nor does it ensure that notice of such a hearing will be provided to each person facing a hold. Moreover, administration of the statute can involve multiple holds from different courts that all must be separately addressed, often with no notice sent to the individual. The harm the program causes is compounded by abstruse, opaque bureaucratic processes involving stacking costs that are impossible to keep up without any indigence exceptions. Thus the constitutional defects embedded in the codification and administration of the OmniBase Program are deeply troubling and, we believe, ripe for challenge.
The OmniBase Program cannot pass constitutional muster because holding a person’s driver’s license hostage in order to collect outstanding debt is irrational. In our experience litigating these cases, we have found that people with driver’s license suspensions frequently lose their jobs, have enormous difficulty finding new jobs, and often have to turn down higher-paying jobs because they cannot drive legally. People who cannot earn money cannot take care of their families and themselves — let alone pay their court debt. The Program is therefore counterproductive to its own goals and is unjustified wealth-based discrimination.
We intend to take action in federal court to challenge the OmniBase Program’s discrimination against impoverished Texans if the program’s constitutional infirmities are not remedied. However, it is our hope that a lawsuit challenging the constitutionality of the OmniBase Program and section 706.004 can be avoided. Please contact us before May 1, 2019, so that we may discuss other options for ending the enforcement of this unconstitutional scheme.
Phil Telfeyan, Executive Director
Marissa Hatton, Staff Attorney
Equal Justice Under Law
400 7th Street NW, Suite 602
Washington, D.C. 20004
cc: Greg Abbott, Governor of Texas
Dan Patrick, Lieutenant Governor of Texas
Poncho Nevárez, Chair of Homeland Security and Public Safety
Paul Dennis, Vice Chair of Homeland Security and Public Safety
John Whitmire, Chair of Criminal Justice
Joan Huffman, Vice Chair of Criminal Justice