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                                                        OFTEXAS




                                                             March           4,    1958

                                                                                                            dL-6.B

Mr.            Jimmy       Morris                                        Opinion               No.    WW-381
    County        Attorney
    Navarro           County                                             R,e:            The     authority            of an officer              ar-
    Corsicana,            Texas                                                          resting        a person            for        violation
                                                                                         of the anti-racing                      statute,       arti-
                                                                                         cle    795,        P-C.,     to take           such     per-
                                                                                         sons        before         a magistrate                im-
                                                                                         mediately,             despite          the demand
                                                                                         of such        person            that    he be re-
                                                                                         leased        upon         his    signing         a prom-
                                                                                         ise    to appear            later        before        a des-
                                                                                         ignated            court     at a specified                time
    Dear        Mr.     Morris:                                                          and place.


                                 This      is in response               to your           request            for     an opinion            with       re-
    gard       to the authority             of an arresting               officer           to take a person  arrested   for
    violation          of the anti-racing                   statute,     Article           795, Vernon’s   Annotated   Penal
    Code,        before      a magistrate               immediately,                 despite           the     demand            of such         person
    that       he be released              upon       his     signing         a written              promise          to appear             later       be-
    fore       a designated            court      at a specified                  time     and place.


                                 Article       795,     Vernon’s             Annotated               Penal         Code,     reads         as    foll.ows:


                                 “No     race      or contest            for       speed        between             mot,or        ve
                  hicles         of any kind           shall     be held           upon        any publi,c           highway.
                  Any      person        violating           this     article        shall       befinednot.exceed,-
                  ing one hundred                 dollars.            Acts        1917,    p.480,            Acts     3rd        C.S.
                  1917,      p. 70,”


    For        convenience,          this      statute         will    be referred                   to in this           opinion        as the “anti-
    racing”           statute.


                                 Article        792,        Vernon’s          AnnotatedPenal                    Code,        reads        as foi?ows:


                                  “In case        of any person                   arrested            for    violation           of the
                  preceding            articles         relating        to speed           of vehicles,              unless         such
                  person          so arrested               shall      demand             that        he be taken            forthwith
Mr.     Jimmy       Morris,                 page        2 (WW-381)




           before        a court                  of competent              jurisdiction             for      an immediat,e
           hearing,              the       arresting            officer           shall     take      the license            num-
           ber,      name             and make              of the         car,     the name              and address            of
           the      operator                or driver            thereof,          and notify             such     operator
           or driver              in writing               to appear              before        a designated              court,
           of competent                         jurisdiction          at a time             and place          to be       speci-
           fied     in such                written         notice       at least            five    days       subsequent
           to the date                 thereof,            and upon the promise                           in writing         of such
           person          to appear                    at such       time        and place,           such       officer.       shall
           forthwith              release               such     person           from       custody.            Any     person
           wilfully         violating                   such    promise,              regardless              of the disposi-
           tion      of the           charge             upon     which         he was          originally            arrested,
            shall     be fined                   not less       than       five       nor    more         than    two hun-
            dred     dollars.                    Acts.1923,           p.    333.”


This     statute     will         be referred                   to in this          opinion         as the       “Violation            of Prom,-
ise”    statute.


                           Article                 827a,       sec.     8, Vernon!6                Annotated           Penal       Cod?,     reads
in part     as follows:


                           “Sec.                8, Subsection              1.     (a)       No person            shall     drive
            a vehicle             on a highway                    at a speed              greater         than    is reason,-
            able     and prudent                        under     the      conditi,ons             then      existmg,          ~ . .
            or when              special               hazard     exists.           . ~


                           “(b)             Where          no special             hazard           exi,sts     that      requires
            a lower              speed            for    compliance               with      subsectlon            l(a)    of this
            Section,  . . . any speed in excess   of the liml,t:s specified                                                            III
            this subsection    or established  as hereinafter     authorize,d
            shall     be prima                     facie       evidence           that the         speed       is not reason-
            able     or prudent                        and that       it is unlawful:

                            !I
                                  .    .    .




                            “(2)                Sixty    (60)    miles          per     hour       in the      daytime          and
            fifty-five                (55)       miles      per       hour        during        the nighttime              in !,oc,a
            tions     other                than        business         or residence                 districts         . . .

                            II . .                As     amended           Acts         1951,       52nd      Leg.,      p. 589,
            ch.     346,         sec.            1.”


 This     statute     will            be referred               to in this            opinion        as the       “Speeding”             statute.
Mr.     Jimmy        Morris,          page      3 (WW-381)




                            The     articles       relating        to each         of three        above      cited       stat-
utes    were       first     enacted          in 1917     by the       35th    Legislature,               Regular         Ses-
sion,     Chapter          207,     pages      474-485.         They      appeared              in the Act         in the fol-’
lowing      order:


                            Section      19.     Anti-racing            statute
                            Section      20.     Speeding          statute
                            Section      21.     Violation          of Promise             statute


                            Section      21 (Violation           of Promise)               reads      in part          as ~fol-
lows:


                            “In the      case      of any person             arrested           forviola-
            tion     of the provisions               of the last         preceding              section      of
            this     Act,     . . .     .‘I     (Emphasis          added)


This      obviously         referred          to Section        20,    the     speeding           statute,        only.


                            These       three      statutes        (speeding;          violation          of promise,             and
anti-racing)          were        codified       in Chapter           One,     Title       13,    of the Revised                 Penal
Code      of Texas,          1925,       The       speeding        statute         was     broken         down      into three
component           parts:


                            Article      789     - Speeding
                            Article      790     - Reckless            Driving
                            Article      79,l    - Exempting            emergency                vehicles


                            The     Violation        of Promise           Statute         became          Article         792,     and
the Anti-racing              Statute        became        Article       795.


                            Since, the         speeding       statute        was    codified         into     three       articles:
789,~ 790,        and 791,        the    Revised        Penal         Code     of Texas,           1925,      Article        792
(Violation         of Promise            statute)       was     caused         to read         in part       as follows:


                            “In case          of any person           arrested           for    violation         of
            the preceding               articles        relating       to speed          of vehicles           . . .‘I
             (Emphasis            added)


It will    be noted          that     in the     1925     codification,            the    Legislature             placed         Ar-
ticle     795   (Anti-racing             statute)       after    the Violation                 of Promise           statute        so
that    Article       792     would      not apply         to the Anti-racing                    statute.
                                                                                                                                               .




Mr.      Jimmy       Morris,            page     4 (WW-381)




                              Without         tracing         the entire        legislative             history      of the       speed-
ing statute,         it is       sufficient          to state         that    it has     been      amended           a number            of
times      since        the    1925      codification,               and is now found                  in Vernon’s         Annotated
Penal      Code      as Article              827a,      sec.     8.


                              In 1947,         the    50th     Legislature             enacted          the Uniform            Act    Regu-
lating     Traffic        on Highways,                 Article         6701d,     Vernon’s              Annotated         Civil      Stat-
utes.      Section         148       of this     Act     makes          provision         for     officers         to release          per-
sons     charged          with       traffic     violations            upon their             promise          to appear       later      be-
fore     a court         of competent                jurisdiction            at a specified             time      and place.          Set,-
tion     148,    Article            6701d,      V.A.C.S.         reads        in part         as follows:

                              IV . . . the offense              of speeding             shall     be the only
               offense        making          mandatory              the issuance             of a written
               notice     to appear             in court,         . . .‘I


This     is an obvious                reference          to Article            827a,      sec.     8, Vernon’s            Annotated
Penal      Code.         It is       significant         that the ban            on racing             on public         highways         is
not mentioned              in Article            6701d,        V.A.C.S.


                              Section         149,     Art.     67Old,        V.A.C.S.,          provides          the penalty           for
violation         of promise            to appear;             and Section             150,     Art.     6701d,      V.A.C.S.,
reads      as follows:


                              “The      foregoing             provisions         of this         Article        shall
                govern        all    police      officers        in making             arrests          without      a
               warrant         for     violations            of this     Act,     but the procedure
               prescribed             herein         shall     not otherwise              be exclusive             of
                any other           method       prescribed             by law for             the arrest          and
               prosecution             of a person             for    an offense          of like        grade.”
                (Emphasis             added)


                              Sec.     148,     Art.      6701d,        V.A.C.S.,          was      amended             in 1953,     by
the     53rd     Legislature.                 This     amendment               allowed         the person           released         on
written         promise             to appear         to have         10 days,         instead         of 5 days,        permitted
the immediate                 arrest         of persons          driving        out-of-state             automobiles,              and
declares          that    any officer            violating            any provision              of this       section      shaT.1 be
guilty     of misconduct                 in office,           and subject         to removal               from      office.       Once
again     this     section           makes       mandatory              the     release         upon       signing       a writ.ten
promise          to appear,            only     the     offense         of speeding.
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    Mr.        Jimmy           Morris,             page     5 (WW-381)




                                      You      have       stated      in your        letter      that     you are        of the opinion
    that       Article          792,        V.A.P.C.,           (Violation         of Promise             statute),         does    not ap-
    ply to Article                   795,      V.A.P.C.          (Anti-racing             statute),        and we concur               with
    your        view         in this        matter.


                                      In’construing              a statute       the intent             of the Legislature                 must
    be        given        effect,


                                      “The         language         of a statute         is presumed                to have
                      been      selected            and used         with      care’ and deliberation.                      . . ,
                      Where          the     statutory          language        is plain         and unambiguous,
                      and expresses                  a single        definite        and sensible            meaning*          it
                      is    conclusively               presumed          that the Legislature                     intended             ”      8
                      to convey             such     meaning.            . . .I’     39 Tex. Jur.            p. 244.


                                      From         the very         beginning,           the    Legislature           has     treated        the
    Violation               of Promise              statute       as applying            only     to the     Statute        on speeding.
    It~has       never          been         applied        to the anti-racing                 statute.         While       there     are     many
    annotations                cited        under       the     speeding        statute,         Art.     827a,      sec.     8, V.‘A.P.G.,
    the anti-racing                    statute,         Art.     795,     V.A.P.C.,            has      never     been       con&rued         by
    our        appellate             courts.


                                      The      speeding          statute       and the anti-racing                   statute        are    two      en-
    tirely       different             laws.         One person            may       violate       the     speeding         laws;      it takes
    the       operators              of two        or more          vehicles       to violate           the anti-racing              statute:
    It is conceivable                       that    a person          could     violate         the anti-racing              statute       with-
    out violating                the        speeding          statute,      especially           if his     motor       vehicle        was     un-
    able        to exceed             the maximum                 allowable          speed.


                                      We hold,            therefore,        that     an officer           arresting          a person         for
    violation              of Article           795,      V.A.P.C.,           (Anti-racing              statute),     has     authority           to
    take        such        person          immediately              before      a magistrate,               despite        the demand              of
    such        person          to be released                 upon      signing       a promise            in writing         to appear
    later        before         a court            of competent           jurisdiction            at a specified             time      and place.
    Such person                 must         be charged             under      Article         795,      V.A.P.C.,          and not under
    Article           827a,          sec.     8, V.A.P.C.               There      are     suitable         forms       of complaint
    charging               a violation             of the      speeding        law    in Willson’s              Texas        Criminals        Forms,
    6th Edition,                but there           is no form           for    a complaint              charging        a violation          of
    the       anti-racing              statute.           It will     be necessary               for    the prosecutor               or the msg..,
    istrate           accepting             such       a complaint            to draft         a suitable       form.
Mr.      Jimmy          Morris,       page       6 (WW-381)




                                                          SUMMARY


                              An officer         arresting         a person         for    violation        of the
                anti-racing          statute,      Art.     795,    P.C.,      may        take     such     person
                before        a magistrate          immediately,             despite        the demand           of
                such        person   that       he be released            upon      his    signing         a written
                promise         to appear         later    before         a designated             court    at a speci-
                fied    time      and place;        but care        must      be taken           to charge      under
                the anti-racing              statute,     Art.     795,     P.C.,     and not under             the
                 speeding        statute,       hart . 827a,       Sec.     8, P.C.


APPROVED:                                                          Yours      very        truly,
OPINION               COMMITTEE:
                                                                   WILL      WILSON
George           P.    Blackburn,                                  Attorney         General         of Texas
Chairman


Ce,cil      C.    Rotsch
John Reeves                                                        By      @5             &-k
Houghton              Brownlee,        Jr.                                Riley     Eugene   Fletcher
F.    C.    Jack       Goodman                                                      Assistant


Reviewed              for    the Attorney          General


By:        W.    V.    GEPPERT
