 .   .                      .



                                NEY    GENERAL.




                          October24,    1969

Mr. Royal Hart                  Opinion Request No.M-495'
District Attorney
119th Judicial District         RE:   Constitutionality,of
County Courthouse                     Article 6701d, ~Section
San Angelo, Texas                     166(b) and Section
                                      166(c), Texas Civil
Dear Mr. Hart:                        Statutes
     You have requested the opinion of this office as to
the constitutionality of Article 6701d, Section 166, Sub-
sections (b) and (c), Texas Civil Statutes. In addition
you have asked for suggestions as to the wording of'complaints
made under the authority of the statute.
     The appropriate provisions of Article 6701d, Section
166, read as follows:
           "(a) No person shall drive a vehicle
        on a highway at a speed greater than is
        reasonable and prudent under the circum-
        stances then existing. Except when ,a
        special hazard exists that requires low-
        er speeds for compliance with paragraph
        (b) of this Section, the limits specified
        in this Section or established as herein-
        after authorized shall be lawful, but any
        speed in excess of the limits specified
        in this Section or established as herein-
        after authorized shall be prima facie
        evidence that the speed is not reasonable
        or prudent and that it is unlawful:"
     [Subsection (a) is followed by various paragraphs setting
prima facie speed limits and definitions]
           "(b) No person shall drive a vehicle




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Mr. Royal Hart, page 2, (M- 495 )


        on a highway at a speed greater than is
        reasonable and prudent under the conditions
        and having regard to the actual and potential
        hazards then existing. In every event speed
        shall be so controlled as may be necessary to
        avoid colliding with any person, vehicle or
        other conveyance on or entering the highway
        in compliance with legal requirements and the
        duty of all persons to use due care.
            "(cl The driver of every vehicle shall,
       consistent with the requirements of para-
       graph (b), drive at an appropriate reduced
       speed when approaching and crossing an inter-
       section  or railway grade crossing, when ao-
       proaching and going around a curve, when ap-
       proaching a hill crest, when traveling upon
       any narrow or winding roadway, and when special
       hazard exists with respect to pedestrians or
       other traffic or by reason of weather or high-
       way conditions."
     To be valid a penal statute must be clear. Article
I, Section 10, Constitution of Texas declares that every accused
has the right to know the nature and cause of the accusation I,
against him. This requirement is reenforced by Article
6, Texas Penal Code, which provides that a penal statute
must be written in definite and understandable terms. A
presumption of constitutionality exists, however, unless the
statute in question is clearly in violation of the constitu-
tion: and a statute mav be couched in aeneral terms if the
offense is defined so khat persons of kdinary intelligence
will understand what acts are prohibited. Rx Parte Frye, 156
S,W,2d 531 (Tex,Crim. 1941).
     Various decisions of the Texas Court of Criminal Appeals




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Mr. Royal Hart, page 3, (M- 495 )



have considered the validity of early laws relating to speed
and reckless driving. In Russell v. State, 228~S.M. 566 (Tex.
Crim. 1921), the court hel??invalid for lack of plain
language a statute which required drivers to operate vehicles
I'.. . in a careful manner with due regard for the safety
and convenience of pedestrians and all other vehicles . . ."
In'Ex Parte Slaughter, 243 S.M. 478 (Tex.Crim. 1922),
the court held invalid the requirement that motorists not
exceed a specified speed where the territory contiguous to the
highway was "closely built up" because the term "closely built
up" was indefinite. A statute was held invalid in Ladd v.
State, 27 S.N'!.Zd
                 1098 (Tex.Crim. 1930), because the re
Gment     that no motorists should pass other vehicles at a
rate that might "endanger" persons or property set no definite
standard. A conviction for reckless driving was reversed
in Ex Parte Chernosky, 217 S.W.2d 763 (Tex.Crim. 1949).
The opinion in the Chernosk
test of driving "wid         ~~~~i~~l~,"~~~~~p~~~~~~~~~as
indefinite, a position which was affirmed inEx~Parte De,,La
Pena, 251 S.W.2d 136 (Tex.Crim. 1952). In the latter case,
thecourt mentioned Article 827a. Section 8, Texas Penal Code,
which preceded the statute under-consideration in,this opinion,
but made no comment on the validity of the article.       ~,
     The present Article 6701d, Section 166, Texas Civil Statutes,
was enacted in a revision of Article 827a, Section 8,,.Texas ~,
Penal Code, which read in Subsection 1 as follows:
             "(a) No person shall drive a vehicle on a
          highway at a speed greater than is reasonable
          and prudent under the conditions then existing,
          having regard to the actual and potential has-
          ards when approaching and crossing an inter-
          section or a railway grade crossing, when ap-
          proachinq and going around a curve, when ap-
          proaching a hill crest, when traveling upon
          any narrow or windinq roadway, or when special




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Mr. Royal Hart, page 4, (M- 495 )



        hazard exists with respect to pedestrians or
        other traffic or by reason of weather or hiqh-
        way conditions; and in every event, speed shall
        be so controlled as may be necessary to avoid
        colliding with any person, vehicle, or other
        conveyance on or entering the highway in com-
        pliance with legal requirements and the duty
        of all persons to use due care.
           "(b) Where no special hazard exists that
        requires lower speed for compliance with sub-
        section l(a) of this Section, the speed of any
        vehicle not in excess of the limits specified
        in this subsection or established as herein-
        after authorized shall he lawful, but any
        speed in excess of the limits specified in
        this subsection or established as herein-
        after authorized shall be prima facie evidence
        that the speed is not reasonable or prudent
        and that it is unlawful:"
     [Subsection (b) was followed by various paragraphs setting
prima facie speed limits and definitions.] The foregoing
language was considered to be constitutional by this office in
Attorney General's Opinion No. V-1562 (1952).
     Since the date of Opinion No. V-1562, the Court of Criminal
Appeals has considered the validity of Article ~827a, Section
8, in Rowland v. State' 311 S.W.2d 831 (Tex.Crim. 1958).
In that case the appellant was charged with having driven at
an unreasonable and imprudent speed in excess of the prima
facie speed limit. Article 827a, Section 8, was found valid
to the extent that prima facie speed limits set a definite
standard. Judge Woodley's opinion in dictum (311 S.W.2d
831, 838) questioned the validity of the basic prohibition
against unreasonable and imprudent speed contained in Sub-
section l(a) of Section 8, but the court reached no decision
on this point,
       The question of the constitutionality of Article 827a,
Section a, arose again in Eaves v. State,   353 S.W.2d 231
(Tex.Crim.   1962). Judge Morrison, writing for the COurt,
reviewed the fact that most states had laws similar to that
of Texas, with a number of appellate courts having upheld




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Mr. Royal Rart, page 5, (M- 495 )



those statutes, and made the following conclusion:
           "The aim of every appellate judge should
        be to achieve uniformity in interpretation
        of similar laws. It is with this in mind
        that I align myself with the great weight
        of authority and hold the statute consti-
        tutional . s a .' (353 s.W.2d 231, 232).
The conviction was reversed, however, because the information
had failed to allege that the defendant's speed was not reasonable
and prudent, as well as in excess of the prima facie limits.
In overruling the state's motion for rehearing, Judge Woodley,
for the court, affirmed the position taken in the Rowland
case and ruled that the statute was constitutional as applied
to driving at a speed in excess of the prima facie limit for
business districts. The defendant had been charged with
driving in excess of the prima facie speed limit, so the
holding of the court was not squarely on the validity of
the reasonable and prudent speed test in the absence of prima
facie limits. The broad language in Eaves v. State, supra,
written for the court by Judqe Morrison, would indicate an
inclination on the part-of the court to-uphold all portions of
Article 827a, Section 8.
     Statutes similar to that of Texas have been considered
by the courts of other states and have generally been upheld.
The annotation on speed regulations found in 6 A.L.R. 3d 1326
contains a number of citations to cases upholding various
statutes with tests such as the "reasonable and prudent" speed
test of the Texas statute. See 6 A.L.R. 3d 1326, 1331-1339,
Sections 5 and 6.
     The New York Court of Appeals in People v. Lewis, 13 N.Y.
2d, 245 N.Y.S.2d 1, 194 R.C.2d 831, 6 A.L.R.3d 1321 (1963),
upheld the New York speed law against a challenge for indefinite-
ness. The law in question contained the following basic rule
worded the same as Article 6701d, Section 166(b), Texas Civil




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Mr. Royal Hart, page 6, (M- 495 )



Statutes:

           "No person shall drive a motor vehicle
        on a public highway at a speed greater than
        is reasonable and prudent under the conditions
        and having regard to the actual and potential
        hazards then existing."
The New York court reasoned that the statute in effect placed
the duty of ordinary care on drivers and was designed for
situations when the maximum speed should be less than the
prescribed speed limit ". . . in order to limit the oneration
of motor vehicles under unusual circumstances - too various to.
be specifically defined - to such a speed as would be reason-
able and prudent under the conditions . . . ." 6 A.L.R.
3d 1321, 1324.
     The Rhode Island courts have taken a somewhat more restrictive
view than have the New York courts but nonetheless have con-
sidered the Rhode Island statute valid. The statute considered
by the court in State v. Brown, 196 A2d 133 (Rhode Island
Sup.Ct., 1963), was worded similarly to the basic test con-
tained in the Texas and New York statutes. The court reversed
the conviction in the Brown case because the complaint against
the defendant alleged -the     basic prohibition against un-
reasonable and imprudent speed and did not allege any of the
specific hazards requiring reduced speed as mentioned in the
statute. The court stated that the statute was sufficiently
definite to be valid, however, and that the offense of driving
at an unreasonable and imprudent speed could result from
driving in excess of the statutory speed limits or from
failure to reduce speed under the conditions of hazard speci-
fied in the statute. The Rhode Island court apparently would
not go beyond the listed hazards in determining when speeds
should be reduced below prima facie speed limits,
     The Supreme Court of Iowa upheld a law requiring a ". . .
careful and prudent speed not greater than nor less than is




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Mr. Royal Hart, page 7, (M-495)


reasonable and proper . . . ." The court reasoned that a
driver must obtain a license and hence must have knowledge
of traffic laws and the operation of an automobile and should
know what speeds are reasonable under various circumstances.
See State v. Coppes, 78 N.W.2d 10 (Iowa Sup.Ct.,1956).
     The Texas Statute must be considered in view of the
various Texas and out-of-state decisions, as well as the
constitutional and statutory requirement of definiteness. Lan-
guage in Judge Morrison's opinion in Eaves v. State,.,.supr~a,
indicates that the Court of Criminal Appeals probably would up-
hold the reasonable and prudent speed test of Article 6701d,
Section 166(b) and Section 166(c), although some Texas decisions
have struck down various speed and reckless driving statutes
for vagueness. No Texas decision has invalidated the provisions
of Section 166(b) and Section 166(c) or the rule in the prior
penal statute, Article 827a, Section 8, Subsection 1. The
basic prohibition against unreasonable and imprudent speed
found in Section 166(b) of Article 6701d has been expressly
upheld as found in an identical New York statute. People
v. Lewis, supra. The Rhode Island courts have indicated
the validity of speed laws like that of Texas. State v. Brown,
supra. Similar  provisions have been found valid in other juris-
dictions, although the courts are not unanimous.
     The language of Section 166(b) and Section 166(c) of
Article 6701d is more clearly written than that of Article
827a, Section 8, Subsection 1, in that Section 166(c) specifi-
cally directs that a driver reduce speed when encountering one
of the listed hazards. Thus the dictum in Rowland v. State,
supra, concerning the definiteness of Article 827a, Section 8,
probably would not be applied by the Court of Criminal Appeals
to the present statute.
     Although we have some doubt as to the,constitutionality
of the language in question, but basing our opinion solely on
the opinions of our Court of Criminal Appeals this office is of
the opinion that the provisions of Article 6701d, Section
166(b) and Section 166(c), Texas Civil Statutes, are sufficiently
definite to be valid as penal provisions. See Eaves v. State,
supra, and the general holdings of courts in jurisdictions out-
side Texas, as well as the ruling of this office in Attorney
General's Opinion No. V-1562 (1952).




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Mr. Royal Hart, page 8, (M-495)


     The second portion of the opinion request deals with
the wording of complaints filed under Article 6701d, Section
166(b) and Section 166(c). The general form of complaints
before justice and corporation courts is established by
Article 45.01, Article 45.16, and Article 45.17, Texas Code
of Criminal Procedure. The complaint should always track
the language of the first sentence of Section 166(b) and
should further allege in detail the specific hazard under
Section 166(c) requiring that speed be reduced. If an
accident is involved, the complaint should include an alle-
gation tracking the test in the second sentence of Section
166(b). A complaint not containing a full description of the
offense will not be upheld. See Eaves v. State, supra.


                    SUMMARY

          The provisions of Article 6701d, Section
     166(b) and Section 166(c), Texas Civil Statutes,
     are sufficiently definite to be valid as penal
     provisions, in view of the language in Eaves v.
     State, 353 S.W.2d 231 (Tex.Crim.1962).
          A complaint filed under the provisions of
     Section 166(b) and Section 166(c) should allege
     that the defendant failed to comply with the
     basic rule in the first sentence of Section
     166(b) and should allege in detail the particular
     conditions requiring that speed be reduced.




                                      General of Texas
Prepared by Roland Daniel Green III
Assistant Attorney General
APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman



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Mr. Royal Hart, page 9, (M-495)


Arthur Sandlixi
Jack Sparks~
Bob Lattimore
Roland Allen
MEADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant Attorney General
NOLA WHITE
First Assistant Attorney General




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