Occupational Driver’s License Law

The Texas Occupational Driver’s License Law is primarily found in Chapter 521 of the Texas Transportation Code. Within this Chapter, Subchapter L (Texas Transportation Code Sections 521.241 – 521.253) contains the vast majority of law, although there are important definitions in Subchapter A described in more detail below. This guide has been prepared as an in-depth analysis of a few key topics in occupational driver’s license law. Or you can learn more about our full-service license practice here

At the outset, it is important to consider what the purpose is of the Texas ODL and what possible benefits there are to the Petitioner, the state and the court. Clearly, the primary benefit to the Petitioner is the ability to drive legally. But often there are secondary benefits such as ending the DPS surcharge cycle or obtaining favorable treatment in a DWLS / DWLI prosecution. The state is able to ensure that the Petitioner is driving with insurance through the SR-22 requirement (learn more about SR-22s here), and the court can ensure, in the case of a DWI conviction, that the Petitioner has an interlock installed for a period far longer than a court might otherwise have jurisdiction. Perhaps the legislature considered all of these benefits of the ODL, but the ODL certainly does serve to close a few loopholes in state policy. For instance, the state requires probationers to seek work, but without a license that may be difficult or even impossible in some locations.

What is the current Texas occupational driver’s license law?

There are three basic categories of ODLs in Texas state law: (1) “DWI conviction-suspension ODLs,” (2) “other automatic post-conviction suspension ODLs” and (3) “no conviction-suspension ODLs.” All DWI conviction-suspension ODLs require an interlock device, and the important question is whether the the ODL really falls into this category, which is harder than it seems at first glance. Other automatic post-conviction suspension ODLs do not require interlock, but the jurisdiction is limited to the court where the conviction occurred. “No conviction-suspension ODLs” have both offense-based and residence-based jurisdictional hooks. These differences are explored in detail below.

Overview of Selected Provisions of the ODL Statute

Section 521.242 of the Texas Transportation Code (“TTC”) contains all of the state laws about the Petition that must be filed to get an ODL. In addition, this section bans courts from issuing Commercial Drivers Licenses (CDLs).^[1] The Petitioner is required to “set forth in detail the person’s essential need” and “state that the petitioner was convicted in that court for an offense under the laws of this state” for any automatic post-conviction suspension ODL.^[2] More importantly, this section describes the jurisdiction of courts to hear the petition. Learn more about jurisdictional issues in ODLs

TTC Section 521.243 establishes who is entitled to receive notice of the hearing from the court clerk and who may participate. The rule is mostly simple: the state is entitled to notice and may appear in any ODL case where “the petitioner’s license was suspended following a conviction” for criminally negligent homicide, any DWI-related offense or any TTC 521.342 conviction (special license suspension provisions applicable only to people under 21 years old). Two items to note, however, are:

• (1) it is unclear whether “license was suspended following a conviction” means this applies to the specific license suspension for which Petitioner seeks an ODL or any license suspension at any time after a conviction and
• (2) the statute says that the state “present evidence at the hearing against granting the petition,” but the court has little discretion to deny a petition as described in more detail below.

The state may, of course, waive its right to receive notice or be present at the hearing. The right belongs to the state and there is no requirement within the code for the state to attend. The statute makes the state’s attendance discretionary, as the state “may attend the hearing and may present evidence at the hearing.”

TTC Section 521.244 is the most frequently misunderstood subsection of the ODL statute. Subsection (a) says:

The judge who hears the petition shall sign an order finding whether an essential need exists.

Courts often do not realize that this subsection actually requires them to sign an order if an essential need exists. The judge’s only question to answer is whether an essential need exists. If it exists, then the judge must sign a corresponding order. The legislature even clarified what “essential need” means by defining it in Section 521.241:

(1) “Essential need” means a need of a person for the operation of a motor vehicle:

(A) in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person’s occupation or trade;

(B) for transportation to and from an educational facility in which the person is enrolled; or

(C) in the performance of essential household duties.

I’ve highlighted “a need” above to point to the simplicity of this decision for a judge. The court must find out whether a petitioner has “a need” for any of those things outlined above, and if there is such a need, the judge must sign an order. There is no heightened “essential” nature to the need: essential need, for the purposes of ODLs, means any need.

Section 521.244 also has a few other important sections that are frequently misunderstood. Subsection (e) establishes that “Interlock ODLs” (as they are frequently called) — these are what I call “DWI conviction-suspension ODLs” — do not require any finding of an “essential need,” so there is nothing for the judge to determine except whether the person has shown an SR-22 and proof of interlock installation.^[3]

Additionally, the hearing may be ex parte if it is not following a DWI-related, criminally negligent homicide or 521.342 conviction.^[4] This makes sense as no one was entitled to even receive notice. And the judge is required to “determine the actual need” of the petitioner to drive and to require an SR-22 as part of the order.^[5] “Actual need” is not defined in the code, nor is there any explanation of how this might be different from “essential need.”

Section 521.246 contains the interlock device requirements. If a “person’s license has been suspended after a conviction of [any DWI-related offense],” then the court must require an interlock as a condition of an ODL.^[6] This is another frequently-misunderstood subsection. I delve into this in more detail below. This subsection also gives a statutory exception to employer-owned vehicles,^[7] and this exception does not need to be written into the order (although it might be wise to do this, anyway, so that police understand this exception, too). One important corollary to this provision is that any ODL restricted with an ignition interlock device may not be subject to any time of travel, reason for travel, or location of travel restrictions.^[8]

Section 521.251 establishes “effective date” limitations on ODLs where there is an active Chapter 524 or 724 suspension (DWI Arrest/ALR Suspensions). You can examine the statute for the applicable effective dates, but it is important to point out that a judge “may issue an occupational license to a person if the person submits proof the person has an ignition interlock device installed on each motor vehicle owned or operated by the person.”^[9] The subsection does not explicitly state that this issuance would take effect immediately, but it would seem that way given that this is described as an exception “notwithstanding” the effective date provisions.

Finally, there is one definition worth pointing out in Section 521.001. “License” is defined in subsection (6):

“License” means an authorization to operate a motor vehicle that is issued under or granted by the laws of this state. The term includes:

(A) a driver’s license;

(B) the privilege of a person to operate a motor vehicle regardless of whether the person holds a driver’s license; and

(C) a nonresident’s operating privilege.

This is important to point out because judges frequently incorrectly assume that a person must have had a Texas driver’s license to obtain an ODL. However, as you can see from the definitions above, a “license” means not just a license, but the privilege of obtaining a license.

When does the law require an interlock?

TTC Section 521.246 clearly requires an interlock as a condition of an ODL when “the person’s license has been suspended after a conviction of an offense under Sections 49.04-49.08, Penal Code.” However, the words “after a conviction” insert a serious ambiguity into this otherwise simple rule. Similar to the “following a conviction” problem in 521.243 described above, it is unclear whether the words “license has been suspended after a conviction” mean the specific license suspension in effect at the time of the Petition or any license suspension that has ever followed a conviction. If a person’s license was suspended for one year 6 years ago because of a DWI conviction and is currently suspended 6 months because of unpaid surcharges, then it is simultaneously true that (1) the person’s license has been suspended, at some point in the past, after a conviction and that (2) the person’s license has not, at this time, been suspended after a conviction. The person’s license has been suspended after a conviction and has not been suspended after a conviction.

The only part of the statute that might help clarify the situation only muddles the answer further. Subsection (f) to 521.246 says:

A previous conviction may not be used for purposes of restricting a person to the operation of a motor vehicle equipped with an interlock ignition device under this section if:

(1) the previous conviction was a final conviction for an offense under Sections 49.04-49.08, Penal Code, and was for an offense committed more than 10 years before the instant offense for which the person was convicted; and

(2) the person has not been convicted of an offense under Sections 49.04-49.08 of that code committed within 10 years before the date on which the instant offense for which the person was convicted.

This subsection starts off by attempting to explain what previous convictions may be used for the interlock requirement, but it stumbles in clarifying anything when it assumes there is an “instant offense for which the person was convicted.” If the instant “offense” is not a conviction-suspension, then this section does not seem to apply. In fact, it doesn’t seem relevant at all because if there is any instant DWI conviction at all, then an interlock is already required. The legislature did not amend or remove this subsection in its ODL statute revisions, and this seems to have been a mistake.

So, to the original question: when is an interlock required? The intent behind the ODL statute revisions was to make it clear when an interlock was required. The revisions removed all discretion of the judge to order an interlock except in this particular scenario. The language used by the legislature, although imperfect, reflects that the legislature intended to create a bright-line demarcation between ODLs issued during a DWI suspension and any other license suspension. The interlock requirement in 521.246 applies only to active DWI conviction-suspensions.

May a judge order an interlock for any other reason?

Courts are not given discretion to order an interlock as a condition of an ODL. The legislature removed this discretion as part of its revisions to the statute in HB2246.

A frequent area of confusion arises when courts consider 521.248(d). This provision is misinterpreted to allow Petitioners discretion to ask for an “ODL Interlock” as a mechanism for avoiding place/time/reason restrictions on the ODL. But the subsection states that it applies to a person “who is restricted to the operation of a motor vehicle equipped with an ignition interlock device,” and the only situation in which a court is allowed to make this restriction is in 521.246.

When can a judge deny an ODL Petition?

Judges are required by law to sign orders granting ODLs when Petitioners show any need described by the definition of essential need in TTC 521.241.^[10] However, sometimes judges do not understand this requirement. TTC 521.244(a) requires judges to sign an order finding whether such an essential need exists: “The judge who hears the petition shall sign an order finding whether an essential need exists.” Once the judge finds that an essential need exists, the judge is also required, under TTC 521.244(c), to include in the order both the “actual need” and a requirement for the SR-22. If the ODL is a “DWI conviction-suspension ODL,” the Petitioner is entitled to an ODL,^[11] no matter the circumstance, even if it is a DWI 3rd or more, so long as the Petitioner has proof of an interlock and of an SR-22 certificate.

What restrictions may a judge place on the ODL?

Since the court must sign an ODL order if the Petitioner shows an essential need, the question then shifts to what may the court order the Petitioner to do? As described above, the court may not order an order an interlock at its discretion. However, the courts are given discretion to order several other items.

TTC 521.2462 allows the court to order the Petitioner to be monitored by the local probation department. The court may also require, under TTC 521.2461, periodic testing for alcohol or controlled substances if the person’s license has been suspended for a DWI-related arrest. The court may also require the person to report periodically to the court to verify that the person is attending counseling program required by TTC 521.245. Courts have no authority to require other discretionary conditions. under the newly-revised ODL statute, all other conditions are mandatory as required by law.

What requirements can a judge place on the Petitioner for a hearing?

Once Petitioner has filed a verified petition with the clerk of the appropriate court, the court must sign an order finding whether an essential need exists.^[12] The law allows the court to consider the petitioner’s driving record and any evidence presented by the state,^[13] but it does not require Petitioner to do anything else.

What courts have jurisdiction to grant an ODL?

TTC Section 521.242 describes two different categories of license suspensions for the purpose of determining jurisdiction.

Subsection (a) Jurisdiction. Justice, county, or district courts in the precinct or county in which the person resides or in which the offense occurred for which the license was suspended have jurisdiction when that person’s “license has been suspended for a cause other than a physical or mental disability or impairment or a conviction of an offense under Sections 49.04-49.08, Penal Code.”^[14] Importantly, courts still have jurisdiction even if the person has never had a Texas driver’s license because “license” is defined in TTC 521.001(6) to include the privilege to obtain a Texas driver’s license. The only overarching limitations on this type of jurisdiction are physical or mental disability or impairment and DWI convictions. DWI conviction-suspension ODL jurisdiction is addressed in subsection (b).

Subsection (b) Jurisdiction. If the person’s license has been (1) automatically (2) suspended or canceled under Chapter 521 and (3) for a conviction of an offense under the laws of this state, then jurisdiction is only appropriate in the court in which the person was convicted.^[15]

What changes did the Texas legislature make to the ODL law in 2015?

House Bill 2246 amended the Occupational Driver’s laws in significant ways. Those changes went into effect in September 2015.

Many of the changes clarified that DWI included all DWI-related offenses. However, many of the changes were substantive. Among them:

• The interlock requirements were changed, if not clarified. While it used to be a complicated procedure to determine whether a judge could, or was required to, order an interlock as a condition of an ODL, the new law made the language much simpler. See the Interlock discussion above for more interlock information
• ODLs where interlock is required became non-discretionary, and many limitations were removed. Now, people are entitled to ODLs with an interlock requirement if they show proof of installation and an SR-22. See TTC 521.244(e).
• House Bill 441 also increased the number of days the paper ODL order would be valid from 30 days to 45 days.

May a court grant an ODL to someone without a driver’s license or to someone whose license has been revoked or cancelled?

Chapter 521 does not place any limitation on granting ODLs for people whose licenses have been suspended or revoked. So long as the jurisdictional requirements are met, then the person is eligible for an ODL. However, the jurisdictional elements include that the license is suspended, so there must be some license suspension on top of either a cancellation or revocation. Medical and physical revocations remove jurisdiction from the courts under TTC 521.242.

There is no requirement for a Petitioner to have ever had a Texas driver’s license. License is defined in Chapter 521 to include the privilege of obtaining a Texas driver’s license.^[16] However, the ODL will grant only that which the suspension taketh away. So if the privilege to obtain a license is restored, then the Petitioner is not entitled to drive, but rather entitled to apply for a Texas driver’s license and, if necessary, take the written and performance tests.

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Legal References:

^1. Texas Transportation Code Section 521.242(f)^2. See Texas Transportation Code Section 521.242(c) & (d)^3. See Texas Transportation Code Section 521.244(e)(1) & (2)^4. Texas Transportation Code Section 521.244(d)^5. Texas Transportation Code Section 521.244(c)^6. Texas Transportation Code Section 521.246(a)^7. Texas Transportation Code Section 521.246(e)

(e) A person to whom this section applies may operate a motor vehicle without the installation of an approved ignition interlock device if:

(1) the person is required to operate a motor vehicle in the course and scope of the person’s employment;

(2) the vehicle is owned by the person’s employer;

(3) the employer is not owned or controlled by the person whose driving privilege is restricted;

(4) the employer is notified of the driving privilege restriction; and

(5) proof of that notification is with the vehicle.

^8. Texas Transportation Code Section 521.248(d)^9. Texas Transportation Code Section 521.251(d-1)^10. Texas Transportation Code Section 521.241(1)

(1) “Essential need” means a need of a person for the operation of a motor vehicle:

(A) in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person’s occupation or trade;

(B) for transportation to and from an educational facility in which the person is enrolled; or

(C) in the performance of essential household duties.

^11. Texas Transportation Code Section 521.244(e)

(e) A person convicted of an offense under Sections 49.04-49.08, Penal Code, who is restricted to the operation of a motor vehicle equipped with an ignition interlock device is entitled to receive an occupational license without a finding that an essential need exists for that person, provided that the person shows:

(1) evidence of financial responsibility under Chapter 601; and

(2) proof the person has had an ignition interlock device installed on each motor vehicle owned or operated by the person.

^12 Texas Transportation Code Section 521.244(a) – “The judge who hears the petition shall sign an order finding whether an essential need exists.”^13. Texas Transportation Code Section 521.244(b)^14. Texas Transportation Code Section 521.242(a)

(a) A person whose license has been suspended for a cause other than a physical or mental disability or impairment or a conviction of an offense under Sections 49.04-49.08, Penal Code, may apply for an occupational license by filing a verified petition with the clerk of a justice, county, or district court with jurisdiction that includes the precinct or county in which:

(1) the person resides; or

(2) the offense occurred for which the license was suspended.

^15. Texas Transportation Code Section 521.242(b)

(b) A person may apply for an occupational license by filing a verified petition only with the clerk of the court in which the person was convicted if:

(1) the person’s license has been automatically suspended or canceled under this chapter for a conviction of an offense under the laws of this state; and

(2) the person has not been issued, in the 10 years preceding the date of the filing of the petition, more than one occupational license after a conviction under the laws of this state.

^16. Texas Transportation Code Section 521.001(6)

“License” means an authorization to operate a motor vehicle that is issued under or granted by the laws of this state. The term includes:

(A) a driver’s license;

(B) the privilege of a person to operate a motor vehicle regardless of whether the person holds a driver’s license; and

(C) a nonresident’s operating privilege.