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In Texas, when a person is convicted of driving while intoxicated (DWI), or their driver’s license is suspended in an Administrative License Revocation (ALR) proceeding or another administrative proceeding or action brought by the Department of Public Safety (DPS), then during that suspension that person may be eligible to obtain a court order for the issuance of an “essential need” or “occupational” driver’s license. (We lawyers use the labels “essential need” license and “occupational” license interchangeably, and once the court has ordered that you may obtain a license, the DPS issues what it calls a “restricted” license.)

The “essential need” or “occupational” license proceeding is governed by the Texas Transportation Code and is conducted, normally, in a county court or county court at law, though district courts may have jurisdiction as well. Depending on the county, the proceeding to obtain the license is either in the same court as handled the DWI case or in another court with civil jurisdiction. Some counties have special procedures. (See Montgomery County and Harris County procedures, discussed below.)

The Department of Public Safety requirements for the issuance of a Texas Essential Need or Occupational Driver's License are:

1) A County or District Court Order, or an Order from the Court in which the person was convicted granting an Occupational Driver's License. The Order shall be definite as to

hours of the day, days of the week, specific reasons for travel, and the areas of routes of travel to be permitted. Actual travel time does not have to be continuous, but specific hours must be stated in the Court Order, and shall not exceed twelve (12) hours in any

given twenty-four (24) consecutive hour period.

DPS to issue your restricted license, you must file a court proceeding to obtain the order

granting you the essential need or occupational license.

(This means that, before you can expect

2) Proof of financial responsibility by filing Form SR-22 (typically the pink certificate of liability insurance). An insurance agent can assist you in obtaining the SR-22 and sometimes they can be obtained online.

3) You must complete Texas DPS Form DIC-37, providing information to appear on the Essential Need or Occupational Driver's License.

4) You must pay the fees required by the Department of Public Safety:

A reinstatement fee is required under the Safety and Responsibility Act (Court

Costs Fees are separate), and

A $10.00 Fee for the issuance of the Essential Need or Occupational Driver’s

License payable to the DPS ($10.00 fee for one (1) year or less).

There are other fees associated with the proceeding, but they are court costs, and are paid to the clerk of the court where your petition for an essential need license is filed.

The following rules are applicable to any person who has had the Driver’s License suspended due to a conviction of Driving While Intoxicated, (DWI), or driving privileges revoked by the Department of Public Safety for any reason, and wishes to obtain an occupational license during the period of suspension. Additionally, these requirements must be met before a court will order that you are entitled to an essential need license.

As mentioned above, an Occupational License will not be issued by the Department of Public Safety unless the driver has obtained liability insurance. You must obtain Form SR-22 and verification of purchase of at least six (6) months of liability insurance and present it to the court at the time of your hearing or the submission of your petition for an essential need license.

You must obtain, and present it to the court at the time of your hearing or the submission of your petition for an essential need license, a copy of your driving record. Some counties or courts may obtain that record at the time of or before your hearing, but you will be able to obtain a copy from the Texas Department of Public Safety.

You or your lawyer must prepare and file with the clerk of the court a Petition for Essential Need License. This is basically your request to the court to consider granting you a restricted license. In the Petition you must set out the reasons you need to drive during the period of your suspension. Also in the Petition, you must be specific as to the area and times in which you will be driving.

In Montgomery County, Texas, your attorney may be able to convince the judge who is hearing your DWI case to also hear your petition for an occupation license. Alternatively, one of the county courts at law is normally assigned to hear all of the Petitions for occupational licenses. Once you file the petition with the required paperwork and attachments, the clerk will forward your application to the judge and you will be notified of the outcome or the necessity of an in- person hearing.

In Harris County, Texas, if your license is suspended because of a DWI or associated matter, (such as the ALR suspension which is present in most DWI cases), most of the civil courts will not hear your petition, but will require that you file it with the court that is hearing or had heard your DWI case or other case associated with the suspension. Courts in Harris County are generally “specialized,” with certain courts hearing only civil cases and other courts hearing only criminal cases.

The law provides that if you are granted an occupational license, your driving privileges are limited not only to a specific geographic area (usually your home county and counties nearby), but you are also limited as to when and where you can drive. The law provides that you can drive no more than four (4) hours per day, although, if there is a specific need, the court can allow you to drive up to twelve (12) hours a day. (Texas Trans. Code, Title 7 § 521.248). Most courts will allow twelve cumulative hours of allowable driving time per day, once you demonstrate the need. You must be specific as to the number of hours per day you will need and that need must be justified, based on your particular occupational, educational or household duties.

The Petition filed for an occupational license must be sworn to, and often it is verified by your signature in front of a Notary Public.

Once you have obtained the SR-22 and your driving record, and prepared the Petition, it must be filed with the clerk of the court and the filing fee paid. At that point, depending on your county and the court’s procedures, a hearing will be set and you will be notified to appear, or the court will consider your Petition “by submission,” and you will not be required to appear and the clerk will notify you of the court’s action on your request.

When the Judge signs the Order granting the Occupational License, the Court Clerk will prepare two (2) certified copies of the Application and Order. You must keep one (1) set with you at all times while you are in the vehicle. It shall serve as a restricted license, and shall remain in effect until the 31st day after the date on which the Order takes effect (Texas Trans. Code, Title 7 § 521.249 (a). The other set is for you to mail or take to the Department of Public Safety. However, many counties and courts require you to prepare a “proposed order” setting out what you want the order to provide. And, some counties and courts have their own “pre-printed” form orders, where you must “fill in the blanks” and make certain selections from the options provided. Whichever kind of order the court uses, it must be signed by the Judge and a certified copy provided to you and the Texas Department of Public Safety before you may safely (and legally) drive.

If the clerk of the court does not send the forms to the Texas Department of Public Safety, then you must then take or mail the certified forms, along with the pink copy of the SR-22, the completed DIC-37, and any necessary fees to the Department of Public Safety.

Once the clerk has provided you with a certified copy of the Court’s order, and you have ensured that the Department of Public Safety is going to get a copy of the order and the required documents, you may legally drive on two conditions: first, that you only drive during the times and under the conditions set out in the order and, importantly, that you ALWAYS carry a certified copy of the court order allowing you to drive in your car, with you. Section 521.250 of the Texas Transportation Code explicitly provides that a “person who is issued an occupational license shall have in the person's possession a certified copy of the court order granting the license while operating a motor vehicle. The person shall allow a peace officer to examine the order on request.”

You should keep in mind that the Court is not required to grant your request for an essential need or occupational license. In fact, some courts, depending on your driving record and criminal history, will not issue one, or, if they do, they will tack on additional requirements, such as ignition interlocks. You should almost always consult with an attorney regarding your chances for obtaining an essential need license before filing the petition. And, as is explained below, sometimes you just can’t get an essential need license, because the law forbids it.

If you want to learn more about the statutory requirements for the “essential need” or “occupational” license in Texas, review these sections of the Texas Transportation Code, available online: Sec. 521.248. ORDER REQUIREMENTS; Sec. 521.249. NOTICE TO DEPARTMENT; ISSUANCE OF OCCUPATIONAL LICENSE; Sec. 521.250. COURT ORDER IN OPERATOR'S POSSESSION.

A “Hard Suspension” Means NO Occupational Driver’s License

Texas Transportation Code, Title 7, § 521.251 states, in part, that:

-- If the person’s driver’s license has been suspended as a result of an alcohol- related or drug-related enforcement contact during the five (5) years preceding the date of the person’s arrest, the Order may not take effect before the 91st day after the effective date of the suspension.

-- If the person’s driver’s license has been suspended as a result of a conviction under Sec. 49.04, 49.07, 49.08, Penal Code, during the five (5) years preceding the date of the person’s arrest, the Order may not take effect before the 181st day after the effective date of the suspension.

These time periods are what are known as “hard suspensions,” and apply to repeat alcohol or drug offenders. This means that you cannot obtain an occupational license during these periods – your license is suspended and your privilege to drive in Texas has been suspended without exception for those time periods.

For more information: www.charlesbfrye.com

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Mr. Frye is not certified by the Texas Board of Legal Specialization. Mr. Frye is licensed to practice law in the State of Texas and is admitted to practice in all courts in the State of Texas, and also is admitted to federal criminal and civil practice before the United States Supreme Court, the Fifth Circuit Court of Appeals, and the Southern and Eastern Districts of Texas.

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