    OFFICE   OF THE ATT~RNEV    GENER.%i   . STATE OF TEXAS
   JOHN       CORNYN




                                                  January 14,2002




The Honorable Phil Garrett                                 Opinion No. JC-045 1
Palo Pinto County Attorney
P. 0. Box 190                                              Re: Whether a driver who falls asleep and drives
Palo Pinto, Texas 76484                                    off the road has committed an offense under section
                                                           545060(a) of the Transportation Code
                                                           (RQ-042 1-JC)


Dear Mr. Garrett:

         You ask whether a driver who falls asleep and drives off the road has cornmitted an offense
under section 545.060(a) of the Transportation Code. See TEX. TRANSP.CODEANN. 8 545.060(a)
(Vernon 1999) (offense of failure to drive in a single marked lane). You believe the statute requires
a conscious act and cannot apply to a person who acts while asleep.’ Whether particular conduct
violates a criminal statute involves questions of fact beyond the purview of this office2 and,
moreover, is ultimately a matter within the province of a trier of fact in a criminal prosecution.
Although we cannot resolve this issue in any particular case, we hope the following analysis of the
legal issues raised by your request will be of some assistance. See generally Tex. Att’y Gen. Op.
No. JM-892 (1988) at 2 (“[Tlhis office will not in an Attorney General’s Opinion presume to advise
your office on the proper exercise of prosecutorial discretion or on the availability of a remedy in
a particular case. . . . [T]his opinion is confined to the narrow legal issues presented.“).

         Section 545.060(a) provides as follows:

                      (a) An operator on a roadway divided into two or more clearly
                  marked lanes for traffic:

                           (1) shall drive as nearly as practical entirely within a single
                   lane; and



         ‘See Letter from Honorable Phil Garrett, Palo Pinto County Attorney, to Susan Denmon Gusky, Chair, Opinion
Committee (Aug. 17,200l) (on file with Opinion Committee) [hereinafter Request Letter].

          *See, e.g., Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M-l 87 (1968) at 3 (“[TJhis office is without authority to make . . . factual
determinations.“);   O-29 11 (1940) at 2 (“[Tlhis . . . presents a fact question which we are unable to answer.“).
The Honorable   Phil Garrett - Page 2             (JC-0451)




                       (2) may not move from the lane unless that movement      can be
                made safely.

TEX. TRANSP.CODE ANN. 4 545.060(a) (Vernon 1999). An offense under this provision is a
misdemeanor. See id. 8 542.301. This section governs driving within a single lane and moving from
one lane to another. We note that you are concerned about a driver who has driven off the road
rather than a driver who has necessarily changed lanes. Given that you specifically ask about this
statute, however, we limit our analysis accordingly. We do not consider other statutes that might
apply to a driver who moves out of a traffic lane. See, e.g., id. $0 545.05 1 (driving on right side of
roadway), .058 (driving on shoulder); see also GlfJin v. State, 54 S.W.3d 820, 823 (Tex.
App.-Texarkana      2001, pet. filed) (Transportation Code section 545.051 “states that a vehicle
operator shall drive on the right half of the roadway. Traveling across the yellow line into oncoming
traffic is a traffic violation in itself and does not require the additional element of an unsafe
maneuver by the driver as does” section 545.060(a)).

         You are concerned about the requisite mental state, if any, that would be required to
prosecute and convict under section 545.060(a) a person who falls asleep while driving. You ask
in essence whether the section 545.060(a) offense requires a culpable mental state or is, on the other
hand, a “strict liability” offense, an offense for which no culpable mental state must be alleged or
proven. See Request Letter, supra note 1. Chapter 6 of the Penal Code governs this issue for most
offenses, providing in section 6.02 that:

                    (a) Except as provided in Subsection (b), a person does not
                commit an offense unless he intentionally, knowingly, recklessly, or
                with criminal negligence engages in conduct as the definition of the
                offense requires.

                    (b) If the definition of an offense does not prescribe a culpable
                mental state, a culpable mental state is nevertheless required unless
                the definition plainly dispenses with any mental element.

                     (c) If the definition of an offense does not prescribe a culpable
                mental state, but one is nevertheless required under Subsection (b),
                intent, knowledge, or recklessness suffices to establish criminal
                responsibility.

                    (d) Culpable mental states are classified   according   to relative
                degrees, from highest to lowest, as follows:

                        (1) intentional;

                        (2) knowing;
The Honorable Phil Garrett - Page 3                (JC-0451)




                        (3) reckless;

                        (4) criminal negligence.

                    (e) Proof of a higher degree of culpability       than that charged
                constitutes proof of the culpability charged.

TEX. PEN.CODEANN. 5 6.02 (Vernon 1994); see also id. 8 1.03(b) (“The provisions           of Titles 1,2,
and 3 apply to offenses defined by other laws, unless the statute defining the offense provides
otherwise . . . .“). Section 545.060(a) of the Transportation Code does not prescribe a culpable
mental state. See TEX.TRANSP.CODEANN. 5 545.060(a) (Vernon 1999) supra. Nevertheless, under
section 6.02 of the Penal Code, “a culpable mental state is . . . required unless the definition plainly
dispenses with any mental element.” TEX.PEN.CODEANN. 8 6.02(b) (Vernon 1994). Thus, we must
determine whether section 545.060(a) dispenses with any mental element.

         We are not aware of any case addressing whether section 545.060(a) requires a culpable
mental state or whether it is a strict liability statute. The determination whether an offense is a strict
liability offense generally involves the consideration of a number of factors, such as the language
of the statute, the subject of the statute, and the severity of the penalty. See generaZZy Aguirre v.
State, 22 S.W.3d 463, 471-76 (Tex. Crim. App. 1999) (en bane) (discussing factors used to
determine whether offense imposes strict liability); Tovar v. State, 978 S.W.2d 584,587-88 (Tex.
Crim. App. 1998) (en bane) (holding that Open Meetings Act offense imposes strict liability).

          Although there is no case law on whether an offense under section 545.060(a) requires a
culpable mental state, we believe a court would conclude that the statute prescribes a strict liability
offense. Courts have held that at least three traffic-related offenses - speeding, driving while
intoxicated, and driving with a suspended license - are strict liability offenses, see Zdauf v. State,
591 S.W.2d 869 (Tex. Crim. App. [Panel Op.] 1979) (legislature dispensed with culpable mental
state as element of the offense of speeding); Exparte Ross, 522 S.W.2d 214,2 17 (Tex. Crim. App.
1975) (culpable mental state is not an essential element of the offense of driving while intoxicated);
Reed v. State, 916 S.W.2d 591,592 (Tex. App.-Amarillo         1996, pet. denied) (culpable mental state
is not an element of offense of driving while intoxicated); Clayton v. State, 652 S.W.2d 8 10, 8 11
(Tex. App.-Amarillo      1983, no pet.) (culpable mental state is not an element of offense of driving
while license suspended), and have intimated that other traffic-related offenses may also impose
strict liability, see Honeycutt v. State, 627 S.W.2d 417,424 n.4 (Tex. Crim. App. [Panel Op.] 1981)
(“a culpable mental state is not a requisite for charging the offense of driving an automobile while
intoxicated, speeding, nor for many of the other traffic type offenses set out in art. 6701d, V.A.C.S.”
now codified in the Transportation Code) (citations omitted). Like the other traffic offenses that
courts have found to impose strict liability, section 545.060(a) has its roots in the same civil code
provisions and uses the same kind of “absolutely obligatory” language. See TEX.TRANSP.        CODEANN.
fj 545.060(a) (V emon 1999) (“An operator . . . shall drive . . . and . . . may not move from the lane
. . . . “) (emphasis added); Zulauf, 591 S.W.2d at 872-73 (relying on legislature’s use of the
“absolutely obligatory” language “no person shall drive . . .” to conclude that legislature “intended
The Honorable Phil Garrett - Page 4                 (JC-0451)




to make speeding a strict liability offense where liability would not be contingent      on allegation of
a culpable mental state”).

        Furthermore, several courts have set out the elements of an offense under section 545.060(a).
See, e.g., Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.-Houston          [14th Dist.] 2000, pet. ref d);
Hernandez v. State, 983 S.W.2d 867, 871 (Tex App.-Austin 1998, pet. denied); Atkinson v. State,
848 S.W.2d 813, 815 (Tex. App.-Houston          [ 14th Dist.] 1993, pet. ref d); Hamilton v. State, 820
S.W.2d 941, 942 (Tex. App.- Houston [ 1st Dist. ] 1991, no pet.). The elements of failure to drive
in a single marked lane are: “(1) a person (2) drives or operates (3) a motor vehicle (4) within a
single marked lane, and (5) moves from that lane without first ascertaining that such movement can
be made with safety.” Aviles, 23 S.W.3d at 77 (citing Hernandez and Atkinson) (emphasis omitted).
Although these cases do not specifically address whether the offense requires a culpable mental state,
we find it highly persuasive that none of these cases indicate that the offense requires a culpable
mental state. See Clayton, 652 S.W.2d at 812 (holding that offense of driving while license
suspended is a strict liability offense supported by numerous cases reciting elements of offense
without any mention of culpable mental state). We believe a court would conclude that section
545.060(a) is a strict liability offense. In that case, a person who changes lanes while asleep may
violate the statute.

        Even in the event a court decides that section 545.060(a) is not a strict liability offense, then,
under section 6.02 of the Penal Code, “intent, knowledge, or recklessness suffices to establish
criminal responsibility.” TEX.PEN.CODEANN. 5 6.02(c) (Vernon 1994). “Recklessness,” the lowest
degree of culpability of the three, is defined as follows:

                          A person acts recklessly, or is reckless, with respect to
                circumstances surrounding his conduct or the result of his conduct
                when he is aware of but consciously disregards a substantial and
                unjustifiable risk that the circumstances exist or the result will occur.
                The risk must be of such a nature and degree that its disregard
                constitutes a gross deviation from the standard of care that an
                ordinary person would exercise under all the circumstances as viewed
                from the actor’s standpoint.

Id. 0 6.03(c). We can imagine a set of circumstances under which a trier of fact could determine that
a driver’s failure to stay in a single lane and to move from the lane safely because he or she was
asleep at the wheel “constitutes a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the actor’s standpoint.” Id.

         Again, you believe that “[a] driver who falls asleep while driving and drifts off the road
cannot be committing the offense of Failure to Drive in a Single Lane because such a violation
requires a conscious act.” Request Letter, supra note 1, at 2. In support of your contention, you cite
Lopez v. Hernandez, 595 S.W.2d 180 (Tex. Civ. App.-Corpus Christi 1980, no writ), which states
that a violation of the statute requires “a conscious act” on the part of the defendant, see id. at 183.
The Honorable   Phil Garrett - Page 5             (JC-0451)




In that case, the plaintiff had sued the driver of an automobile for personal injuries arising out of a
collision. One of the issues on appeal was whether plaintiff had proven that the driver had violated
the statutory predecessor to section 545.060(a) for purposes of establishing the driver’s negligence.
See id. (opining that the statute “comes within that class of statutes in which the common-law
standard of the reasonably prudent man must be used in determining as a matter of fact, not as matter
of law, whether the conduct of a motorist is negligent”). The court’s discussion of the statute in the
context of the legal and factual standard for common-law negligence in a civil action is not
dispositive of the elements of the offense in a criminal case.

         In sum, although we cannot determine in any particular instance whether a person has
violated section 545.060(a), we conclude that the fact that a driver was asleep when he or she moved
from the single lane does not as a matter of law remove that person’s conduct from the scope of the
statute.
The Honorable   Phil Garrett - Page 6            (JC-045   1)




                                        SUMMARY

                        Although this office cannot determine in any particular
                instance in an attorney general opinion whether a person has violated
                section 545.060(a) of the Transportation Code, the offense of failure
                to drive in a single marked lane, the fact that a driver was asleep
                when he or she moved from the single lane does not as a matter of
                law remove that person’s conduct from the scope of the statute.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
