                       June 7, 1972

Honorable Naomi Harney                Opinion No. ~-~~5,-,
County Attorney
Potter County Courthouse              Re:   The effect of the enact-
Amarillo, Texas 79101                       ment of Section SOA of
                                            Article 6701d, V.C.S.
                                            on the negligent homicide
                                            statutes of the Penal
                                            Code, Articles 1230, et
                                            seq; the degree of negli-
                                            gence required by Sec-
                                            tion 50A; and related
Dear Miss Harney:                           questions.
     you have asked our opinion regarding the construction to
be placed on Article 6701d, Section SOA, Vernon'a Civil Stat-
utes. This statute, passed by the 62nd Legislature, became
effective on August 29, 1971.
     The following questions are posed for our consideration.
            1. Whether Article 6701d, Section SOA, Ver-
     non's Civil Statutes, impliedly repealed Article
     1238, Vernon's Penal Code, where a cause of death
     occurs   while a person is engaged in the violation
     of any State law or municipal ordinance applying
     to the operation or use of a vehicle or to the
     regulation of traffic.
          2. Whether Article 6701d, Section SOA     pro-
     vides whoever shall unlawfully and unintentionally
     (with a conscious disregard for the rights of others)
     cause the death of another person . . . does the term
     conscious disregard for the rights of others mean a
     gross negligence.
          3. In the event death is caused while a person
     is engaged in the violation of any State law or muni-




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       cipal ordinance applying to the operation or the use
       of a vehicle, could a person be tried under the neg-
       ligent homicide statutes either while in the perform-
       ance of a lawful act or while in the performance of
       an unlawful act.

       Section 50A   of   Article 6701d provides as follows:
            "Sec. SOA. (a) Whoever shall unlawfully and
       unintentionally (with a conscious disregard for the
       rights of others) cause the death of another person
       while engaged in the violation of any State law or
       municipal ordinance applying to the operation or
       use of a vehicle or streetcar or to the regulation
       of traffic shall be guilty of homicide when such
       violation is the proximate cause of said death.

            '(b) Any person convicted of homicide by
       vehicle shall be fined not less than Five Hundred
       Dollars ($500) nor more than Two Thousand Dollars
       ($Z,OOO), or shall be imprisoned in the county jail
       not less than three (3) months nor more than one
       (1) year, or may be so fined and so imprisoned;
       provided, however, that such person may be tried
       only upon indictment by a grand jury and may be
       tried only in the county where the violation oc-
       curred."

     Article 1238, Vernon's Penal Code, is one of the statutes
dealing with negligent homicide in the second degree and reads
as follows:
            "The definitions, rules and provisions of the
       preceding articles of this chapter, with respect
       to negligent homicide of the first degree, apply
       also to the offense of negligent homicide of the
       second degree, or such as is committed in the pro-
       secution of an unlawful act, except when contrary
       to the following provisions."
     Other Companion articles of Chapter 14 of the Penal Code
entitled "Homicide by Negligence", must be consulted to bring




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into focus the meaning of Article 1238 and include the follow-
ing:

               Article    1230   reads,
               "Homicide by negligence is of two kinds:
            1. Such as happens in the performance of a
       lawful act; and
            2. That which occurs in the performance of an
       unlawful act."
               Article 1231 reads,

            "Whoever in the performance of a -lawful act
       shall by negligence and carelessness cause the death
       of another is guilty of negligent homicide of the
       first degree. A lawful act is one not forbidden by
       the penal law and which would give no just occasion
       for a civil action."
               Article 1232 reads,
             "To constitute this offense there must be an
        apparent danger of causing the death of the person
        killed or some other."
                Article 1234 Examples, reads,
             "Throwing timbers by a workman from the roof or
        upper part of the house in a public street or highway,
        or where a number of persons are known to be around
        the house, or discharging firearms on or near a public
        highway other than a street in a town or city in such
        manner as would be likely to injure persons who might
        be passing, are examples of negligent homicide of the
        first degree, in case of death resulting therefrom.
        If death is caused by the careless discharge of fire-
        arms in a public street of a town or city, the offense
        will be of a higher degree."




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          Article 1239 reads,
          "Negligent homicide of the second degree can
     only be committed when the person guilty thereof
     is in,the act of committing or attempting the com-
     mission of an unlawful act."
          Article 1240 reads,
          "Within the meaning of an 'unlawful act' as used
     in this chapter are included:
          1. Such acts as by the penal law are called
     misdemeanors; and

          2. Such acts, not being penal offenses, as
     would give just occasion for a civil action."
     Initially it must be observed that the negligent homi-
cide statutes have been interpreted to cover deaths occasioned
by the negligent operation of motor vehicles both when a mis-
demeanor statute is violated and when one is not. Mackey v.
State, 400 S.W.Zd 764 (Tex.Crim. 1960); De Mary v. State, 423
md     331 (Tex.Crim. 1968).

     The first problem encountered in answering your inquiries
is whether Section 50A and the negligent homicide statutes
cover the same acts or whether the different definitions of
negligence in the two enactments furnish a reasonable basis
for putting a particular motor vehicle homicide into one legis-
lative classification or the other.
     The case law of Texas defines ordinary negligence as the
failure to exercise that degree of care that a person with or-
dinary prudence would exercise under the same or similar cir-
cumstances. Buchanan v. Rose, 138 Tex. 390, 159 S.W.Zd 109
(1942); Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1,
175 S.W.2d 249 (1943).

     Gross negligence is an entire failure to exercise care,
or the exercise of so slight a degree of care as to justify the
belief that there was a conscious indifference to the rights,
safety and welfare of others. Texas Pac. Coal & Oil Co.-v.
Robertson, 125 Tex. 4, 79 S.W.2d 830 (1935); Bennett v. Howard,
141 Tex. 101, 170 S.W.Zd 709 (1943); Claunch v. Bennett, 395
S.W.2d 719 (Tex.Civ.App. 1965).
Miss   Naomi   Harney,   Page 5       (M-1150)


     It is readily apparent that Section 50A of Article 67Old
requires an act of gross negligence to sustain a conviction
thereunder.
     It is not so clear what degree of negligence is required
to sustain a conviction under the Homicide by Negligence Statutes,
Article 1230, et seq., of the Penal Code. However, Article
1232 requires that ". , . there must be an apparent danger
of causing the death of the person killed or some other",
and the examples of negligent homicide set out in Article
1234 are situations where the perpetrator of the example acts
in exercising such a want of care as to justify a belief that
there was a conscious indifference to the rights and safety
of others so that gross negligence may be the required stan-
dard.
     Hut whatever the degree of negligence required by the neg-
ligent homicide statutes, it is clear that they can cover the
same acts as Section 50A when the negligent driving of an auto-
mobile is the cause of a death. A driver might well be indicted
either under Section 50A or the negligent homicide statutes
(second degree), or both.
     The possibility that indictments may be brought under two
separate statutes raises the spectre of unconstitutional in-
definiteness since negligent homicide in the second degree
and Section 50A privide for different penalties. And Senate
Bill 183 of the 62nd Legislature, enacted into law as Chapter
83, Acts of the 62nd Legislature, Regular Session, 1971, of
which Section 50A forms a part, specifically repeals certain
Articles of the Penal Code (Section 103 of the Bill), but
there is no express repeal of ~the negligent homicide pro-
visions of the Penal Code and no general repealer clause re-
pealing all laws in conflict with Chapter 83 is contained in
this Act.
          We have concluded from a study of the authorities that
 in general, where given conduct may subject a person to
 criminal      liability under two different statutes providing
 for different punishments, the later statute will be held to
 prevail and will operate as an implied pro tanto repeal of
 the earlier statute to the extent that identical acts are




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Miss Naomi Harney, Page 6      (M-1150)


covered by both statutes. Daniel v. State, 370 S.W.2d 885
(Tex.Crim. 1963), with exceptions where the earlier is pre-
served by an express savings clause in the later, Ex Parte
Sanford, 280 S.W.2d 776 (Tex.Crim. 1956), or where both
statutory provisions passed at the same time occur in the
same statute. Moran v. State, 122 S.W.Zd 318, 319 (Tex.Crim.
1938). We here note that the Moran and Sanford decisions were
not followed in the later decisions of McCathron v. State, 294
S.W.Zd 822, 826 (Tex.Crim. 1956) and Richardson v. State, 332
S.W.2d 736, 742 (Tex.Crim. 1960), in both of which the former
member of the Court, Judge Davidson, dissented.
      Accordingly, the supposition arises that the Legislature
did not intend to repeal the negligent homicide statutes.
Joseph v. Travis County, 8 S.W.Zd 711 (Tex.Civ.App. 1928,
aff'd 16 S.W.Zd 283), and the supposition is in part correct
since the negligent homicide statutes of the Penal Code cover
acts of negligence other than those involving the driving of
a motor  vehicle and acts involving a motor vehicle where no
misdemeanor is committed by the driver. Certainly the Leg-
islature intended to preserve these parts of the negligent
homicide statutes.
     However, where a death is caused by a person operating
a motor vehicle while engaged in the violation of a state law
or municipal ordinance, the situation is different. In such
cases, the Legislature, by passing specific legislation cover-
ing the unlawful driving of a vehicle, intended that Section
50A solely apply to these situations and that the negligent
homicide statutes be repealed to that extent. Haskell v.
Texas Water Commission, 380 S.W.2d 1 (Tex.Civ.App. 1964 error
ref., n.r.e.); Franklin v. Pritach, 334 S.W.2d 214 (Tex.Civ.
App. 1960 error ref., n.r.e.)
     Therefore, we hold that Section 50A alone is applicable
to deaths incurred by the negligent operation of a motor ve-
hicle where a law or ordinance is violated, and to this ex-
tent, and this extent only, the negligent homicide statutes
have been impliedly repealed.
     Your second questions has been answered by the above
discussion -- the words in Sec. 50A "with a conscious dis-
regard for the rights of others" (in causing a death through




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Mise   Naomi   Warney,   Page   7          (M-1150)



the.operation of a motor vehicle) prescribe a requirement
that gross negligence be present to form the basis of a
conviction.
     Your third question has also been partially answered
above. A driver engaged in violating a state law or muni-
cipal ordinance, and causing the death of another, may not
be tried under the negligent homicide statutes but is sub-
ject to trial under Section 50A of Article 6701d. However,
where his operation of his vehicle is negligent, but not in
violation of a law or ordinance, he may be tried Under the
negligent homicide statutes, Articles 1238, et seq., which
are still effective in the absence of the violation of an
ordinance or state traffic law.    .~
                                    S U,MMARY
            Section 5OA of Article 6701d, V.C.S. (as enacted
       by the 62nd Legislature, Regular Session) now covers
       deaths incurred by the grossly negligent operation of
       a motor vehicle where a state law or municipal ordi-
       nance is violated and the negligent homicide statutes
       of Vernon's Penal Code, Articles 1230, et seq., are
       impliedly repealed to this extent.
              Section 50A requires proof of "gross neg,ligence"
       to   obtain a conviction thereunder,

            A driver who by gross negligence causes a death,
       while engaged in violating a state law or a municipal
       ordinance, may not be tried under the negligent horni-
       tide statutes. However, where his operation of his
       vehicle is negligent, but not grossly negligent, and
       is not in violation of a law or ordinance, he may be
       tried under the negligent homicide statutes, Articles
       1238, et seq., Vernon's Penal Code.




                                                      ney   General of Texas




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I.




         Miss Naomi Harney, Page 8         (M-1150)


         Prepared by Lonny F. Zwiener
         Assistant Attorney General

         APPROVED:
         OPINION COMMITTEE
         Kerns Taylor, Chairman
         W.E. Allen, Co-Chairman
         Max P. Flusche
         John Banks
         Lynn Taylor
         Houghton Brownlee
         SAMUEL D. MCDANIEL
         Staff Legal Assistant
         ALFRED WALKER
         Executive Assistant




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