Aubrey Ray Vaughan v. The State of Texas--Appeal from County Court at Law No 2 & Probate Court of Brazoria County

NUMBER 13-99-676-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  BEDINBURG

  AUBREY RAY VAUGHAN, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

On appeal from County Criminal Court at Law No. 2

of Brazoria County, Texas.

O P I N I O N

Before Justices Hinojosa, Castillo and Baird[1]

Opinion by Justice Baird

Appellant was charged by complaint with the offense of driving without a driver=s license. A trial was held in the Justice Court where a jury convicted appellant of the charged offense and assessed punishment at a fine of $185. Appellant gave notice of appeal to the County Criminal Court of Law No. 2 of Brazoria County. In this de novo proceeding, appellant waived his right to a jury, and was convicted by the trial judge of the charged offense. The trial judge assessed punishment at a fine of $25. We affirm.

I.

The facts giving rise to this prosecution are not in dispute. On August 1, 1998, appellant was driving a motor vehicle with an expired license plate. Texas Department of Public Safety trooper Jack Petitt employed his emergency equipment, and appellant stopped his vehicle. When Petitt asked appellant for his driver=s license, appellant stated he did not have one because he was not in the social security system, and was unable to get a driver=s license in Texas without having a social security number. The State offered evidence in the form of an affidavit from the custodian of driver records of the Driver License and Control Service, Texas Department of Public Safety, stating there was no record of appellant having been issued any type of Texas driver=s license. At the conclusion of the State=s case, appellant moved for an acquittal. The trial judge denied the motion, found appellant guilty, and assessed a fine of $25 plus court costs. Appellant now raises three points of error challenging this judgment.

II.

The Texas Transportation Code provides that a person required to hold a license shall have in his possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated, and display the license on the demand of a peace officer. Tex. Transp. Code Ann. ' 521.025(a)(1) and (2) (Vernon 1999). This section further provides that a person who violates this section commits an offense punishable by a fine not to exceed $200. Id. at (c). Appellant was required to have a license to drive his vehicle. Tex. Transp. Code Ann. ' 521.021 (Vernon 1999). There is no evidence appellant was exempt from the license requirement. Tex. Transp. Code. Ann. ' 521.027 (Vernon 1999).

The issue presented in points of error one and two is whether this prosecution violates appellant=s constitutional right of religious freedom. Appellant=s argument may be stated as follows: Appellant=s religious beliefs prevent him from obtaining a social security number. Consequently, appellant has opted out of the social security system, and has no social security number. Because appellant has no social security number, he is unable to obtain a Texas driver=s license. Therefore, the instant prosecution violates appellant=s First Amendment Right to freedom of religion.

We must reject this argument because it is based upon a faulty premise, namely that a social security number is required to obtain a Texas driver=s license. Section 231.302(c) of the Family Code provides: ATo assist in the administration of laws relating to child support enforcement under Parts A and D of Title IV of the federal Social Security Act (42 U.S.C. Sections 601 617 and 651 669): (1) each licensing authority shall request and each applicant for a license shall provide the applicant's social security number[.]@ Tex. Fam. Code Ann. ' 231.302(c)(1) (Vernon Supp. 2002). This provision of the Family Code is enforced by the Texas Department of Public Safety via Chapter 37, section 15.42(a) of the Texas Administrative Code which provides: AThe social security number shall be obtained from all applicants for the purpose of additional identification.@ 37 Tex. Admin. Code ' 15.42. However, neither the federal statute nor the applicable laws of Texas have been interpreted to require possession of a social security number as a prerequisite for a driver=s license. Op. Tex. Att=y Gen. No. JC-409 (2001). In fact, that opinion concludes with the declarative statement: AAn individual is not required to have a social security number as a condition of receiving a [driver=s] license.@ Id.[2] Because appellant=s argument is premised upon the erroneous belief that a social security number is required to obtain a valid Texas driver=s license, we overrule the first and second points of error.

III.

The third point of error contends appellant=s right to privacy was violated when he was required to sign a traffic citation promising to appear. However, appellant did not raise this issue in the trial court. Therefore, it is not preserved for our review. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (objection that a statute has been applied unconstitutionally must be made at trial for such constitutional error to be preserved for appellate review). Accordingly, the third point of error is overruled.

The judgment of the trial court is affirmed.

________________________

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 27th day of June, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2] We interpret the attorney general=s opinion as follows: If the applicant has a social security number, he is required to provide it in order to obtain a license. However, if the applicant does not have a social security number, he may submit a sworn affidavit, under penalty of perjury, along with his application stating he does not have a social security number.