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            The Attorney              General of Texas
                               October    30, 1980



        Colonel James B. Adams                    Opinion No. M.V-260
        Director
        Department of Public Safety               Re: Whether conviction of involuntary
        5805 N. Lamar                             manslaughter    results    in automatic
        Austin, Texas 78773                       suspension of a driver’s license

        Dear Colonel Adams:

               You ask whether article 668713, V.T.C.S, requires the automatic
        suspension of a driver’s license when the licensee is convicted of involuntary
        manslaughter under section 19.05 of the Penal Code. You have limited your
        inquiry to subsections (a)(l) and (a)(3) of section 24, article 6687b, V.T.C.S.,
        which provide that:

                    (a) The license of any person shall be automatically
                        suspended lpcn f&l conviction of any of th;
                        following offenses:

                    1. Negligent homicide result@         from the operation
                       of a motor vehicle;. . .

                    3. Any offense punishable as a felony           under the
                       motor vehicle laws of this State. . . .

        Acts 1941, 47th Leg., ch. 173, at 245.         Section   19.05 of the Penal Code
        provides that:

                    (a) A person commits an offense if he:

                    (1) recklessly causes the death of an individual; or

                    (2) by accident or mistake when operating a motor
                        vehicle while intoxicated and, by reason of such
                        intoxication, causes the death of an individual.

        Acts 1973, 63rd Leg., ch. 426, art. 2, 51, at 1123. An offense          under this
        section constitutes a third degree felony.

              The Texas Penal Code, which became effective January 1, 1974, was
        the product of a massive undertaking designed to overhaul and codify Texas




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Colonel James B. Adams - Page Two         (m-260)




penal law. Acts 1973, 63rd Leg., ch. 399, Sl, at ,883. A significant accomplishment of
the code is its clear expression of the mens rea concept in criminal homicide cases in
terms of intentional, knowing, reckless>~minally         negligent conduct. -See Penal
Code SS19.01-.07, 6.03.

       We first consider whether involuntary manslaughter constitutes          an offense
“punishable as a felony under the motor vehicle laws of this State.” V.T.C.S. art.
6687b, S24(a)(3).    Traffic regulations are contained in articles 6701d to 670m-2,
V.T.C.S. In 1971, the legislature added section 50A to article 6701d; on its face, section
50A duplicated the offense of involuntary manslaughter.        However, the legislature
repealed that section in 1975, apparently because it intended that the Penal Code
should deal with the entire stiject of criminal homicide. Acts 1975, 64th Leg., ch. 342,
S16, at 918. Our attention has not been directed to any current traffic regulation which
provides that involuntary manslaughter constitutes a felony under state motor vehicle
laws.    Thus, we conclude that involuntary manslaughter, while certainly a felony
offense, is not an offense punishable as a felony “under the motor vehicle laws of this
State.”

       We next consider whether a driver’s license may be suspended automatically
pursuant to article 6687b, section 24(a)(l), upon conviction of involuntary man-
slaughter.    Sections 19.04 and 19.05 of the Penal Code deal, respectively,          with
voluntary and involuntary manslaughter.         Section 19.05(a)(l) provides that a person
commits involuntary manslaughter if he “recklessly” causes the death of another
(whether or not he was operating a motor vehicle); subsection (a)(2) thereof pertains to
death resulting from a driver’s accident or mistake while operating a motor vehicle
while intoxicated.    An individual is considered “intoxicated” when he “does not have
the normal use of his mental or physical faculties by reason of the voluntary
introduction of any s&stance into his body.” Section 19.05(b) (Emphasis added). The
underlined language indicates that the legislature intended that the conduct specified
in section 19.05(a)(2) should constitute recklessness per se. See also Penal Code S6.03.

       It is clear, therefore, that in order to commit involuntary manslaughter, a person
must act recklessly rather than negligently. See Moore v. State, 574 S.W. 2d 122 (Tex.
Crim. App. 1978); Mendez v. State, 575 S.W.2d36 (Tex. Crim. App. 1979); Brooks v.
State, 548 S.W. 2d 680 (Tex. Crim. App. 1977); cf, section 19.07. Article 6687b, section
m(l)      provides, however, that a driver’s license may automatically be suspended upon
final conviction of “ne li ent homicide resulting from the operation of a motor
vehicle.” (Emphasis a*            While a hteral construction of this provision yields the
anomalous result that a license may automatically be suspended when a driver commits
vehicular homicide with the least culpable of the four mental states prescribed in the
Penal Code, but not when he acts intentionally, knowingly, or recklessly, we think this
is a matter which the legislature, and not this office, should correct.       The relevant
pmvisions of article 6687b, section 24 have not been amended since 1941, and thus do
not take into account the many changes in the criminal law area brought about by the
new Penal Code, which was enacted in 1973. However, the legislature is the body
which properly should effect a reconciliation between article 6687b, section 24, and
the Penal Code. We thus conclude that under the present state of the law, conviction




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        Colonel James B. Adams - Page Three       (MV-260)




        of involuntary manslaughter &es not result       in automatic   suspension of a ckiver’s     .
        license under article 6687b, section 24(a)(l).

               It is important to note, however, that although involuntary manslaughter &es not
        result in automatic suspension of a driver’s license, it may well result in discretionary
        suspension of the license.      Article 6687b, section 22, provides, for example, that a
        license may be suspended upon proof, jnter            that the driver has been responsible
        for an accident resulting in death or serious personal injury, is an habitual reckless or
        negligent driver, or is incapable of driving a motor vehicle. Accordingly, assuming the
        required procedures are observed, a license may be suspended under the discretionary
        authority     of the Department       of Public Safety lpon conviction of involuntary
        manslaughter even though it may not automatically be suspended.

                                             SUMMARY

                       Conviction of the offense of involuntary manslaughter &es
                   not result in automatic suspension of a driver’s license, but may
                   result in discretionary suspension of said license.




                                                      MARK      WHITE
                                                      Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Jon Bible
        Assistant Attorney General

        APPROVED:
        OPINION COMMlTTEE

        Susan Garrison, Acting Chairman
        Jon Bible
        Tom Bullington
        Rick Gilpin
        C. Robert Heath




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