Can an officer stop me for no insurance? This is a question that has been given inadequate attention by our courts. Many people simply assume that an officer who believes a person to be driving without insurance must have based his conclusion upon good and reliable information. This should not be a foregone conclusion.

Officers conducting traffic stops on the sole basis of not having insurance are presumably using a database known as Texassure. By law, Texas insurance companies are required to report insurance data to TexasSure on an occasional basis. The TexasSure database then purports to identify drivers who are driving without insurance based on information linked to the vehicle’s license plate.

This scheme is problematic for a number of reasons, most of which fall under one general concept: vehicles are not insured to be driven by individuals, individuals are insured to drive vehicles. This concept may seem esoteric or just plain-lawyer talk until you consider the following scenarios.

1. Under Texas law, a person can be insured as an operator. This usually is a person who operates more than one vehicle, including vehicles which he or she does not own. This sort of policy—sometimes referred to as an “operator’s policy” – satisfies Texas motor vehicle insurance requirements but will not be linked to a vehicle’s license plate. The TexasSure license plate search function only tells an officer about the potential existence or non-existence of an insurance policy held by the registered owner of the vehicle.
2. There is no law in Texas that requires individuals to hold a Texas-issued insurance policy. When you add to this fact that Texas does not and cannot require insurers from other states to comply with TexasSure reporting requirements it creates a moderately applicable problem. Individuals who move to Texas and obtain Texas plates but retain their previously issued out-of-state insurance will appear to officers using the TexasSure database as not having insurance.
3. Texas law only requires insurance companies to submit new policy information once per week. This means when you renew insurance, TexasSure could erroneously report you as having no insurance for as many as 6 days after a previous policy expires.
4. There are other ways to be insured in Texas without going through an insurance company. These include: (1) filing of a surety bond with the Department of Public Safety, (2) deposit $55,000 in cash or securities with the comptroller, (3) deposit $55,000 in cash or cashier’s check with the county judge, (4) file a certificate of self-insurance if owner of 25 or more vehicles. Although rare, individuals who choose to meet legal requirements of motor vehicle insurance through any of these methods will appear as not having insurance in the TexasSure database.
5. The accuracy of information in the database is outside the control of the insured person. The duty of reporting information is delegated to insurance companies. The governmental function of compiling and maintaining the database is delegated to a private company as well. There appears to be no way for a private individual to verify the accuracy of their insurance information which appears in the TexasSure database. The TexasSure website indicates that information is verified “each time you have an inquiry by law enforcement.” However, officers indicate that they are strictly database users and do not play a role in maintaining the accuracy of information kept by TexasSure.

Setting these issues aside and focusing specifically on what must be shown to support a probable-cause-based traffic stop in a court of law, the deficiencies continue.

Generally, there are two types of challenges to a traffic stop in court: (1) prove that what the officer saw or heard equates to an actual offense being committed by the person who was stopped, or (2) if and when that information amounts to an offense, prove that the information was sufficiently reliable. Even if we ignore the shortcomings of the TexasSure database in ferreting out the commission of an offense, most officers can offer little information to a court regarding the reliability of the TexasSure database. Most officers are unaware of how information gets into the TexasSure database, the accuracy of information in the database, whether protocols exist to ensure accuracy, the effectiveness of any protocols, or how long it takes to update the database once information of unknown reliability is received. In this regard, the TexasSure database is no different than an unnamed informant of unknown reliability, which are typically frowned upon in the probable cause arena.

There are more points which strengthen the argument that the TexasSure database should not be relied upon to conduct traffic stops. The most noteworthy is that the Texas Department of Public Safety has specifically said so. In the June 2008 edition of the DPS Chaparral (monthly published newsletter), the DPS specifically states “DPS does not believe the law allows the database to be used for probable cause in stopping a vehicle.” This may be because, in the opinion of DPS, the database fails to provide sufficient probable cause or because of another noteworthy point: Texas law makes it a criminal offense to knowingly use information for purposes not specifically authorized by statute. Among those purposes not authorized by statute is conducting traffic stops.

So, what is the current status of the law in this area? Several courts have zeroed-in on a couple hastily analyzed opinions written by one or two of our courts of appeals. These opinions seem to say that it is sufficient for an officer to explain to the court what he believes the database result to mean and the court can ignore whether the source of information is reliable, whether the officer’s belief is accurate, or any of the inherent shortcomings with the TexasSure database.

It is my opinion that these courts got it wrong and that we have yet to see the last of this issue. There are many Texas appellate jurisdictions which have yet to address this issue, making it ripe for both trial and appellate litigation.