                                                              R-407



                 EA'PTORNEY              GENERAL


PRICE DANIEL
ATTORNEY
      GENER.4L
                                  my   16,   1947

        Hon. Fred Red Harris            Opfni~on~NO0 v-202
        HOIl. Joe Kilgore
        Free Confert?nce
               ^         _Committee
                           -            Re:, Consti~tutioMlity  of
        Texas senate i3M House               Senate Bill HO. 172
        Austin, Texas                        and House Bill Ro.
                                              140,   known   as the
                                              "Uniform Act, Regu-
                                              lating Traffic on
        Dear Sirs:                            Highways~."
                  Your request for an opinion on the constitu-
        tionality of Senate Bill lo. 172 and House Bill Ro. 140
        reads, in part, 88 follows:
                  "Because of the billus'far reaching im-~
             portance, It is our wish,that the free con-
             ference committee be advised by the Attorney
             General on the.constituti%nality of this bill
             together with such recommendations, which in
             your opinion, may be necessary to assure the
             legality of the bill.
                  "X,particrtlarlywiah'to lnquire,aa to
             the constitutionality of AFtfcle V of S.B..
             172 and whether or not, ,inyour opinion, Sec-
             tion 52-A, which relates'to scientific tea~t-
             in&to determine whether or not 8 defendant
             i8 under the influence,of intoxicating llq-
             uor, will.be held constitutional."~
                  The bill in question is one're&lating trdffic
        end travel upon t,behighways of this State, It ia very
        comprehensive in its nature end scope, and consists of
        one~hundred,and seventy-four,aepsrete,sectio~s. Hot
        only does the bil~lrepeal all laws and parts of laws in-
        consistent,or oonflicting with the provisions of the
        propaaed,,enactment,but it ddds many new and different
        provisions to the.now existing "Law of the Ro%d" as ,ea-
        braced in Article 801, Vernonss Penal Code.
                  We have devoted considerable time and study
        to the bill,becauae it iuvolves'the grave and serious
        problem of regulating in detail the traffic on our




                                                                      :
Hon. Fred Red Harris - Page 2, V-202


highways, and the concomitant problem of the need for
safeguards and restrictions for those who use and go
upon our highways. We are not permitted to go further
than to discuss and decide questions relating to the
constitutionality of certain portions of the bill, The
Constitution of this State confides to the Legislature
the right and power to express by written statute the
public policy of the State, and what may or may not be
done by a person in a given case. For this reason we
express no opinion either for or against the policy em-
braced in the bill, and nothing herein is to be con-
strued as an expression of approval or disapproval on
OUP part as to the policy ,embracedin the bill as a
whole or any part thereof,
          It is well established that the regulation of
highways, and the use thereof, is within the police power
of the State. Ex Parte Savage, 63 Grim. Rep. 285 (Tex.
CP:".~%;   19117 Jones v. Brim, 165 u. 3. 180, 41 L-Ed.
             ctJ2m         D Davia v. Massachusetts. 167
U. 6. 43 $6 L. Ed. 71 17 Sup Ct 731 m
v. Binfogd, 286 U. 3, $27, 76 i. Eci. 1167, 52
w.           From these aatharities, and numerous others,
there is no question but that the Legislature is within
its constitutfonal authority in dealing with the sub-
ject embraced in the bill,
          The constitutional questions presented relate
to specific sections of the bill, In thfs connection,
we are not unmindful of the fact that Section 172 of the
bill specifically provides that "if sny part or parts of
this Act shall be held to be unconstitutional, such un-
constitntlonalfty shall not affect the validity of the
remaining parts of this Act.”   Such a savings clause is
valid and will be enforced by the courts. Atkins v.
State Highway Department, 201 3-W. 226 (Tex, Civ. APP.
1918) o Even fn the absence of such a savings clause,
it is elementary that 8 statute will always be sustained
as to portions which are not unconstitutional unless the
unconstitutional portions dare so intermingled with the
remaining portions of the statute that they cannot be
severed,                               o, 112 Tex. 375,
247 s.w. 1                             of intermingling
is not presented by the bill under oonsideration.
          The first question presented is whether or not
a subject is embraced in some of the provisions of the
bill which is not expressed in the t%tle.
Bon, Fred Red Harris - Page 3, V-202


          Article III, Section 35, Constitution of Texas,
provides as follows z
          “Bo bill, (except general appropriation
     bills, which may embrace the verious subjects
     and accounts, for end on eccount of which mon-
     eys are eppropriated) shall contein more than
     on8 subject, which shsll be expressed in its
     title. But if eny subject shall be emblrced
     la en act, which shall not be expressed in the
     title, such ect shall be void only as to so
     much thereof, as shell not be so expressed**
          It has been declared in numerous ceses thet this
section of the Constitution is mandetom. but that it will
be llberelly construed, Stete v. The P&&orions,   186 S.W.
(2d) 973 (Sup. Ct. 1945), am     e section of an act is
in any degree germane to the subject expressed in the title,
it will be upheld. Davis v. Stete, 225 3-U. 532 (Tex.
Grim. App. 1920) m
          The title to the bill In question reads es fol-
lows :
          "An Act regulating traffic, or travel
     upon the highways of the Ste,teof Texss; pre-
     scribing penalties for the violation of the
     provisions of this Act; oontaining $ sevings
     clause; and declaring en emergency.
            Certainly there Is but one subject embraced rith-
in the title, and it therefore meets the constitutional
requirement In this regard v On the other hand, it 3s ex-
tremely doubtful es to whether the subject named in the
title is the only subject dealt with in certain sections
of the bill itself. Our doubt 1s expressed with reference
to Section 49, relating to the nonus of ‘eccident re opts
as evidence in civil and crimkn&actions; Section 11f (b),
relating to the cancellation of contracts for the oper-
ation of a school bus; Section 142, relating to the sale
of certain eutomotive equipment vhich has not been ap-
proved by the Director of the Department of Public Safety;
Sections 143 and 144, relating to the epproval of certefn
eutomotlre equipment by the Director of the Department of
Public Sefety and revocation of the euthority to sell such
equipment; and Section 166, relating to the edsisaibillty
of evidence   in civil actions.
Ron, Fped Red Ha~P3.s - Page   4, V-202



          It fs elementary that no set. 0~ seotfon there-
of, wfll be held unoonstfiutfonal mepeiy beoanse doubt
1s expressed as to Its vaifaity. Brown y& City of Gal-
Vastonp 97'Tex, 1, 75 S.W. 488 (Sup. Ct. lymjO   On the
wzy,      wher6 the court fs fn aerfous doubt as to
whether the LegialatuPe exceeded fts power by embracing
more than one subject fn an rat, suob doubt is to be
resolved In favor of the valiaftg of the act, and not
against ft. Altgelt vQ Gutzeit, 175 S.W. 220 (Tex. Clv.
App, 1916). xs was observed by the court fn this last
cfted authority, it fs extremely dffffeult to determ%ne
in many oases whether there fs the required connectlon
between subjects in an set so as to meet the eonstftu-
tional Pequfrement, and we. pegaM the above mentfoned
sectfons as examples of sutiheasesO
          In vfew of the bet, hd$everP,that we do have
a serious doubt on the quertion under dlscussion, we
think ft fs oup duty to or11 thfs to youp attention In
order that you may take s\lohact-ionas you deem necessaPg
to elfmfnate the doubtful features suggested while the
bfll fs st%lP before you Pn a conference commfttee.
          The second, and more serious questfon ppe-
sented, pelates to Seetfon 52 of the b%ll fn questfon.
It ppovfaes as follows:
          "(a) In any cr%m%nal rosecutfon for a
     violation of Articles 802, 8 02A, 802~, Texas
     Penal Code, Revfsed Statutes, 1925, as amended,
     the amount of alcohol fn the defendant's blood
     at the tfme alleged as shown by ehemfoal anal-
     ysfs of the defendantIs blood, uzP%ne,breath,
     OP other bodfly substance shell give ‘&se to
     the follow%ng presumpt%ons:
          "1. If these was at tRat tfme 0005 per
     oent 0~ leas by weight of alcohol fn the de-
     fendant"s blood, it shall be pPesumed that the
     defendant was not ~undes the lkf'luenceof fn-
     toxicat%Qg l%quop;
          "2 0 If thepe was at tbet t%me in excess
     of 0005 per cent but less than 0015 pep cent
     by wefght of e3,eohoEin the defendant OS blood TV
     such feet shall riotgjlvertse to sny pPesump-
     tion that the aefeudant was OP was not under
     the fnfluence of %ntox%eat%ng Ifquor, but such
     fact may be eonside~ed wfth other competent
Hon. Fred Red Harris - Page 5, V-202


     evidence in determlnlng the guilt or lnnocenoe
     of the defendant;
          “3. If there was at that time 0,15 per
     cent or more by weight of alaohol in the de-
     fendant’s blood, it shall be presumed that the
     defendant was under the influence of intoxl-
     eating liquor.
          “4f The foregoing provisions of this
     subdivision shall not be construed as llmit-
     ing the introduction of sny other competent
     evfdence bearing upon the question whether OP
     not the defendant wms under the influence of
     intoxicating liquorO”
          This section squarely presents the question
of whether or not the use of scientliic methods to de-
termfne intoxication in cases involving driving while
intoxicated Is In violation of ArtI.cle I, Seotlon 10
of the Constitution of Teus.
          Artfcle I, Section 10 of the Comstitution of
Texas, provides In part as follows:
          “In all crlelnal prosecutions the ac-
     cused shall have a speedy public trial by
     an impsrtial jury.. 0 e He shsll not be


          It Is to be observed that nothing is contained
In Section 52 indicating that the scfentifia testa aen-
tioned are to be given and used only withthe consent of
the accused e Inasmuch as we are of the opinion that the
accused could consent to such tests, and the use of name
against him, without violating the above quoted aonatl-
tutional provWlon, we will disouss the puerrtlon from
the standpotnt that it is the intention of the Legirla-
ture to provide for such tests, and their use, wIthout
the consent of the accused. This has been the position
of the Rational Safety Councfl In sponsoring such pro-
visions insdffferent States, and the above quoted sec-
tion is almost identFca1 wfth fts recommendations ln
this regard 0 See 24 Iowa Law Revfew 191 (1939); 6150,
Rfmeogrephed Reports of Ratfonal wets   Council, “Corn--
m-tee on Tests for IntoxioationO” 1938 0
Hon, Fred Red Haa?ris - Page 6, V-202


          Much has been wrftten by the eourts of this
country, as well as by different legal schola1”s,on the
subject of whether op not statutes authorfelng the teat-
%ng of blood, uP%ne, and breath for the purpose of de-
temalnfng intoxication, and the Introduction fn evidenoe
of the results of swh tests, vfolate the constftution
privflege aga%nst self fncpfminatfon. The Constftution
of forty-six States, and that of the Unfted States9 con-
tains a provfsfon sfmflar to the one above quoted from
the Constitution of Texas. There ape decisfons fn the
different Qurfsdfctfons on both sfdes of the Issue.
          Professor Wfgmore takes the positfon that the
privilege agafnst self in6rialnation 6overs only state-
ments msde by the defendant In open court under process
as a witness. Wiumope on Evidence, Thlrd Editlon, B
2263.  There are deofsisns fn some Qmfsdictions other
then Texas fn accord with Wigmore. On the other hand,
Jones fn h%s~ “Commentarfes on $videwe,“. Seoond Edition,
8 1391, takes a poaftfon eoiit2aryt,othat-‘ofVlgmore~,-~.
and states that an accused should not be forced to submit
to an examfnatfon or physfcal scfentlffe tests. There
ape numerous dec%s%ons fn accopd w%th this view. The
State of MfsQou~f haa gone so fap as to say that such
tests cannot be used fn evfdenoe against the accused even
though he aonsents to the test.o’
          The crltfefsm of the i?unsnle
                                    against the use of
scfentfffc evidence gaLned as a result of blood, urine,




Bar AssOn. Joursnal,Deoember 1935, XXI, 808.,
          Re@paleas of whlcrh of the above two “views la
correct, the eour~tsof Texas have rmedeft oledr that evl-
dence eafned by the method euthorfxed fn Sectfon 52 wfth-
out the consent of t?ieaeouaed and agafnst his wishes fs
not admfss’lblefn evide’me agafnst h%ms and a statute au-
thorfzfng su(Bha pP”ooedwe would be fn violation of Apti-
cle I, Seotfon 10 of the Constftutfon. A discussion of
the decfsfon reaebed in eaMshof the two mope recent and
leading oases on thfi bubjeat wfll be helpful %a an under-
rtandfng of the barfa of the Fe&as rule.
,




    Hen- Fred Red Harris - Page 7, V-202


                                    146 SOW. (2d) 381 (Tex.
    Cpfm. Am8 .'$I                 t, aftsr~arrest, w8s re-
    qnimd   i@ the oiiica*s to        to cobtafn t&a   for tlm
    purpo6e  of ensbllag them ta datenina whatkar la was in-
    toxicated. HO was wqairod    to walk aad ako staddsntums,
    end was alao Squired to give a speolmea o? ur$na to be
    8~1~~3    for the purpore of deterriming u~ather aloohhol
    we prosent. The P66Ult6 ef t&680 toat worn placed in
    evithme  o In koldlmigthat thir violated Article I, mo-
    tion 10, Conatftatlcw of Texa8, the oouW said:
               90 quote ~PO 16 C'&ma Jurir, gage 566,
         a8 r0iiw88    %o GutOtatlwa       of the Elnitd
         Sot06 anI of wt     of ttw 8tater ~ovldo la
         amowkat na y lu g leq p um t)u t ne 9p o nen l6-
         o wed Be0P irllMll k e'-lied         to b4 a
         lritl)8111   er to g$re   wl4om60,   6   Wet   hlm6el?,
         a n6  th e r pe2wf8fo uJ1 1 1a *~    m& to r lb le  lll
         evidence    lmrlmimtirbg     8oomod    cd ebtrfwd
         from hfr by oemmzlrioa. The pretotm               61 the
           ur+nty is found in the wrim 6r the cocoa
         flw, Nemo tea&W        selpatm locaaa19, whioh wa8
         brought to Amcwloa by occ lacoatow a8 a psrt
         of their bfMwl#ht;        aad the   )PI,vlle~ei@inst
         solf-iaarlri58tfe8 &88 Wrr Mkuexuy              oen-
         stmed    Irf tlu oolr*tr a8 &%*a. tk oltfzea           pm-
         te6tiw    a8 bwI6 a8 t&et rfY 36 06 by the cem-
         mom-law pp%maIple im         tfbfoh it lo depfved,
         both tha fadePal.and akt.0 caMtIt%tleM              being
         libemilj aeartrmd te pwvwt             oaa#ul80~~ eeli-
         Im6PimfrtIn.         Cwp8lalr     %a abe hqmete of
         the pr&ibitIoa; ati to retier lvUe*ee ia-
         ldmlrslble on tke Lrrprl tmt         IrCoHant      wa8
         oampallad to Ippod~. it l       g 6a w   t
                                                 h$!#uelf,   it
         ma6tappe6CtbltlYOI         OMllf*liil)8       prod a8
         to rob him of,volition fartlm rtter.I
               %o   follovf~ f6 teb8a fpoll28 lttalliq
         Omae Law, 6up* s m     4348 ‘m    rl*tr    ia-
         tomb6   to be pmt@eW    by tlr o6utftutieml
         p$W~f8%08 th8t IL0 NOm 8GOW.d Of UpfW 8bll
         be compelled to b a wItRem a@alrst hlwelf
         8pe so saomd, and the pPe68we tavati      their
         relexatfon 80 gWt    When the sw+zfoa     of guilt
         Is strong ati the evIdecx?eobsom,      that It I8
         the duty of eou=&.r1ObePsll.y to coastrue the
         ppohIbItIon In favop of perroml pf@&s, aad
         to rafuae to pemlt any ate- temdiw toward
         their Invasion. l!fen6e)pthere fs the welb-
lion, Fred Red Haz~is - Page 8, V-202


     established doctrine that the constftutfonal
     fnhfbftlon is dlreoted not merely to the giving
     of oral testlmouy, but embracer as well the
     furalshlng of evidence by other meana than
     by word of mouth, the dfvulging, in short, of
     any fast which the aroused has a right to hold
     seoret eI
          The State’s attorney filed an able q o tlo n’fo r
rehearing challenging the ooaclualon reached. In over-
ruling this motion the court said:
          we hate re-examined the reaord in the
     lfght of the State’s motion, and are inclined
     to adhere to the conclualo~ heretofore  en-
     noun0ed e
          %e think the lafer policy  to be adhe+-
     emoe to the eonatrwtlon end appliaation of
     Seotlou 10, APtfo3.e1 ef our CaUatitutlon el-
     ready glvea effect tn oup lot&g-established
     preaedentr 0a
          !fwotsara later the btter waa again before
the court fn                      162 S.Y. (26) 706 @exe
Crlm. App9 1                     epphent conflfot in ilea
of the casea, and because of aertaln exoeptioar the court
had msde to fta holdlogs under Article I, Swtlen     10 of
the Conatltut4on, the aourt aparking through Judge Darld-
000, wrote at le@h    OQ the rtabJeot a In revlowing the
~8808, and in eUtlng the rule oh the oourt# it wAa bald:
          “While thla ooMtltt&t$m81    prmdaQ3$i pro-
     hibit ocmpelllng an lOb&d      to giY0 eYldW3e
     against htiself, lta appllortlon IS ln Qo Wise
     llmfted atrlotly to the giving of aueh evidence
     upon the trial of the caaeO To the co&traIpJ,
     the fnhfbftlen extends and applfet3whenever one
     la under arrest for a violation of the law OP
     fs being held by the authorftfes lnve8tf@W.ng
     e chelegeagainst him. It atanda as a guazen-
     tee to eveiryoneof the fight to pefreiinipoe
     gfving teat-any which will tend to reveal hia
     orfminal connection tith tinoffense   denoruu,ed
     by law. 44 Tex. JurDy $ 25.
Bon, Fred Red Harris -   Page 9, V-202


          "Much haa been sald by this Court touching
    the question of what constitutea  self-lncrimi-
    nation within the meaning of the constftutlonal
    provision, and apparent oonflicta appear. The
    vs~fous holdings are baaed upon, and, of neces-
    sity, arise by, what are construed to be, ex-
    ceptions to the applicstion of the constltu-
    tional Inhibition, Among those exceptions sre,
    what are known as. the 'footnrint' csses. where-
    in identfficstion'was established by a com-
    paris on of footprints (Walker v. Stste, 7 Tex,
    App, 245, 32 Am, Rep. 5%; Pitts v. Stste, 60
    Tex n Cr. Ro 524, 132 S.W. 801; Hsmpton v.
    State, 78 Tex. Cr. R. 639, 183 S.W. 887; RI -
    pey v. State, 86 Tex, Cr. R. 539, 219 3,W. f:63;
    Lunsford V. State, a0 Tex. Cr. R. 413, 190 S,W.
    157; Johnson v. State, 91 Tex. Cr.,R. 291, 238
    S.W. 933; Landry v. State, 117 Tex. Cr. R. 396,
    35 Sdv.~ 2d 433); also, the 'fingerprint' cases,
    to the same effect (McGarry v. State, 82 Tex.
    Cr. .R. 597, 200 S.X. 527; and Conners v, State,
    134 Tex, Cr. R. 278, 115 SW. 2d 681), wherein
    the accused was required to give his finger-
    prints; also, cases Involving Identification
    by personal appearance OP physical examination
    (Land v. State, 34 Tex. Cr. R. 330, 30 S.W.
    788; Bruce v. State, 31 TeX, Cr. R. 590, 21
    S. W. 681; Thompson v. State, 90 Tex. Cr. R.
    15, 234 Sew. 401; Rutherford v. State, 135 Tex.
    Cr. R. 530, 121 S.W. 2d 342; Snd Ash v. State,
    139 Tex. Cr. R. 420, 141 S.W. 2d 341.
         "The basic and underlying prluciple upon
    which these exceptiona to the application of
    the constitutional lnhkbftlon mentioned are
    founded lies in the fact that the evidenae
    there involved waa not produced by the ecouaed,
    that la, by the independent act or volition
    of the aGoused, but waa produced by, and was
    the reault of, the acts of the officers OP
    others o It follows, therefore, in the instant
    case, that, unless the evidence here oomplained
    of was admlaslble as an exception, that is,
    as having been produced by the officers as dls-
    tingufshed from havOng been produced by the
    acaused, It oomes within the constltutianal
    lnhlbltlon mentioned e The determining faotor
    in this case fs whether the evidence whQoh Fn-
    criefnates the accused was produced by him or
    by the officers.
Bon. Fred Red Harrfs - Page 10, V-202


          “Uhfle not expressly ao ststed in the
     opinion, the applfcatfon of ,the’
                                     prfncfple stat-
     ed constpplled %ti.thed%apoa%t%on made’in the
     case of Apodaca v0 State, 140 Tex, Cra- R. 593,
     146 S.W. 2d 381, o o q"
          Based upon the sbove deciafons, ft Is our opfn-
iOn thst ff Seotlon 52 be oonstrued as mandatory in pe-
quQr%ng a person to submft to scientffio tests sgsfnst
his consent for the purpose of determining intoxication,
spldthe use of the PesuPts of such tests against him,
it would vfolete Sectfon 10 of Article I of the Constf-
tutfon of Texss.
          Even though the sectfon should be construed to
apply only fn cases where the accused has consented,
there are several problems obvfously present thst the
Legislature should consfder, These problems are: (1)
The posslbflfty of an %ntox%csted person to consent--
the degree of fntoxfoatfon beyond whfch he ,%snot ca-
psble of consentfny: (2) The questfon of the need of
warnfng ~the amused of his Ffghts and of the purpose of
the teats; (3) The standati to be a lfed fn determfning
whether consent has been g%ven; and 5$ ) The fssue by
whom consent %a to be determined in the trial of the
accused--by the court fn pssalng on a question of law
as to the admfssfbility of evfdence OP by the jurg as an
Issue of fsct,

          Asfde from the questfon of self %ncr%m%nst%on,
it is to be observed that psragreph 3 of Sectfon 52 states
that ff there fs 0,15 per cent OF more by weight of al-
cohol in the defendant’s blood ft shell be resumed that
the defendant was Fntoxicated ~Emphaais oura7T---FXgmPh
4 of Seatfon 52 states that the other ~ovfsfons of the
sectfon shall not be construed as l%m%tfng the fntroduc-
tion of other competent evfdence beepang upon the quea-
tfon of fntoxicatfon~ This obvfously shows an intention
on the pert of the Leg%slature thst par~grsph 3 does not
mesn that %t shell be concB,usfveproof ,thstthe accused
wss intoxfcated under ~i?Z~%oas       therein stated, but
It Is our op%n%on tbst 1% pe&sas would be better to ye
the words ‘palms facfe evfdence ~.%nsteaaof the word pre-
aumea*” See Newton v. Stats, 267 S.WO ~272 (Tex. CP%IB.
A pa 1924); F-v-e,           30 S .W. 794 (Tex, Crfm, App,
18 9510 The suggests change ePLmfnstes the const%tut%onal
queatfon of deq%ng an accused the rfght to s tpisl by
jury in a cp%m%nsl,case.
Hon. Fred Red Harris - Page 11,   V-202


          The third question presented relates to the polrer
end authority of the Stete to regulate the use and oper-
ation of vehicles on private pro@rtj.
          Section 21 of the bill provides that *the pro-
visions of this act relating to the operation of vehioles
refer exclusively to the operation of vehiclea upon hlgh-
ways except . . . the provisions of Articles IV and V
shall ap lg upon highways and elsewhere throughout the
State."   Pkurphasls   ours)

          Article IV (Section,38 to 51, inclusive) in gen-
eral deals with accidents’by motor vehiclea involving
death or personal lnjurg end reports thereon. Article V
(Sections 52 to 54, inclusive) in general deals with drlv-
lng while Intoxicated and reckless driving.
          To illustrste the problem presented, in the
event a farmer, who is driving his own .vehicleon his
own fara or reuch, collides with another vehicle owned
by him, and driven by his employee, thereby causing dam-
age to one or both of the vehicles, he is required uuder
the terms of the bill to comply with the 9rovislons of
Article IV with reference to reporting accidents to the
Department of Public Safety. To this extent the issue
of the right of the State to regulate the driving and use
of vehicles on private property is presented s
             We have been uuable to locate any authority
speoi~lcally auswering the question aa to the power of
the State to regulate the use of vehicles oti.private
 roperty.      In Crossler v. Safeway Storea 6 P. (26) 151
P Idaho   Sup.   Cm         the    rt   h 1da city ordinance
making It unlawful for’s per:% to%e         on the runnlng
board of a vehlole, in a private driveway. The reasoning
of the court was to the effect that the private driveway
wss a road within the meaning of the ordinauce, and was
beLug used by the public. The court quoted from C-on-
wealth v; Qammons, 23 Pick.     201 (Sup. Ct. Mass.) w-n
kt was said:
            *It is argued, thet such a construction
      will trench upon the right6 of private prop-
      erty, aud the legislature have no power to
      prescribe the rules, by which Individuals shall
      be governed, in the use of private property.
      But we think this rule does not i!npairthe
      rQhts of private property;   it confers no right
      of way, la the la&a of private owners. They
Ron. Fred Red Harrfs - Page 12, V-202


     may exclude all persona, if they think fft,
     But when those owners, by grant or permfssfon
     or general license, express or fmplied, do
     allow thefr land to be used for a road, the
     legfslature, having a superintending power over
     the persons and conduct of all the citizens,
     may prescribe a rule by which they shall use
     this prfvilege, ,whether permanent or temflorary,
     for thefr mutual safety and convenience,
          It is not believed that the above ofted and
quoted authorities are decfsive of the questfon presented,
unless ft is assumed that the accident referred to In
our illustratfon occurred on a private road whfch was
from tfme to time used by the public. For thfs reason,
we at least express doubt as to the validity of the seo-
tfons here under consfderatfon In so far as they attempt
to regulate situatfons sfmflar to those fn our lllustra-
tion as an entrenchment upon the rights and use of pri-
vate property* As prevfously observed, mere doubt is
not sufffcfent to hold a statute unconstftutfonal, but
we call the matter to your attention for the reasons
heretofore stated fn thfs opinion,
          The fourth and last question presented calls
for a determfnation of whether certain sections of the
bfll violate that portion of Artecle I, Section 10 of
the Constitutfon wh9ch provfdes as follows:
          "In all crfminal prosecutfons the ac-
     cused shall have a sDeedv Dublic trial bv
     an fmpartial jury. fie &ail have the rliht
     to demand the neture and cause of the ac-
     cusation against hfIn 0 D 0 gan#kasfs ours)
          Article 6, Vernon's Penal Code, provides, among
other things, that the penal law, to be valid, must be
so deflnftely framed that the acoused may know the nature
of the accusatfon against hfm, and unless it meets this
requirement, it is Invalid.
          The well recognized rule for construing a penal
statute Fs, that ff the statute fs so indefinitely drawn,
or if ft fs of such doubtful constructfon that It cannot
be understood, either from the language in whfeh it is
expressed or from some written law~of the State, ft fs
Invalid and vofd, Rx Parte Meadows, 109 S.W. (2d) 1061
(Tex. Crfm. App, 19rr
Eon. Fred Red Herris   - Page 13, V-202


          With these oonatiClrtiou1 a* lt8tu tore- ry
qulrementa lo mind, a0 well 44 the Irul4ob oonatruotton,
we direct lour apeoific attention to tk ?ollotl~:
          Settion 22 m8ke8 it ual.avf~l4ad, urrlorrother-
wise declared, a misdemeanor ~QP any peraou to do ray
act forbidden or fell to parform any act required by
the act.
          Section 158 prescribes the penalties for a
niademeanor e
            Se0tion 54 roads aa follows:
          "RECR'LRSSDRIVIRG .--Bverg person iho drive8
     any vehicle In willful or wenton dlsregerd for
     the safety of persons or prbpertg  la guilty
     of reckless driving."
            Section 59 reads, in part, as follows:
            'lo vehicle ahall be driven to the left
      aide of the center of the raadwaf In over-
      taking and pa8sl.nganother vehlole proceeding
      In the some dlmotion   Pal488 9poh left aid8
      ia clearly visible, and 18 frea of oncomlug
      traffic for a sufficient distaW!B ahead to




            Section 60 (a) reads, in part, as followa:
           "Ho vehicle shall at any time be driven
      to the left side of the roadway under the
      following oondltlons :
            "1. wbe e       roaohlas the oreat of a
      pas    . . T+t!&i      ale OUr8)
            Section 64(a)   reada aa followa:
Bon. Wed   Red Herrfa - Page 14, V-202


           bootian69 rmt$, in part, a8 follmm8
         “60 driver of 4 whlule rhrll tura 4.0
    aa to pooead la the opprwite dlraatton upoa
    raj ostme 4w upur:t~ rpq4oh    to, or ae8r
     ljhsimeut ut 0 Rrn         a 0 0    (w-1

           Saotlm   log reads    aa follows:
                                rdgnany gt;&;r;hEo;a
                                      Rm
                    0 geum      or 8wh vehfole In neu-

    vehlo~b~          delver 4.f0 o-la1           motor
    not east    v
    -f
           Seotfoa 1%5(a) 6 rudr        4a ‘follar 8
           "Oae of the mmmo tU bmke opwmtlon
    shell ounsfat.of 4 nohaafoal oomiaotion fmm
    the operating lever to the bmb) ahgm or ban&~
    and this brake shall be ospabla of holdiug
    the vahiola, or caabfnatlon of vehlolea, ata-
    tiowry    under reef aondftfoa of loadirq
                                 whLsh it is

           Seatfoa 155 re8ds     a8 followrx
           %aperron abrll dtiw    m move on acsp
    hQ!my   ray motor vehhpole,tnPlap     lomni-
    tmila~, ob 9eko Choler, OXJany oomblbiartloa
    thereof unlaaa the equipment rrpooany aad everi
    aald v&o10     fr fn good xozWng other and ad-
    justment am mqufhed fn thPa sot and said ve-
    hlole 1s in such rafe aeohanfoal oenditfon aa
    not to eadeage~ the driver   or uther cmupant
    OP any peraon upon the highway.”




header trafns gept   on
fadefinite0 The Court said8
Hon. Fred Red liarrls - Page 15, V-202


           “It is also invalid, we think, for snoth-
    er reaE100. Violetion o? it subjects the of-
    fendsr Co a heavy pemlty.        Operation of such
    ,dotableheedera‘up steep grade(I.’    &a excepted,
    and inours no penalty, What co~titutes a
    steep grade, necessary to be determined be-
    iore auoh .penaltyten be aimomaed, is neither
    defined by the law, nor by say order,of’the’
    CosllBiSBiOtl. f&w is it a generic term ~of such
    @mere’1 well deflned mmnlng, or of such spe-
    a is1 aea’ni common to milrord operation, asl
    would affo 3 t&e opbmtom,        iv oourt, or juror
    a definite    BP ~wm~wbie   st#adaPd whereby to
    deternine what operationrrwere exempted frem
    the ruIa end what verb not. The order must
    ~therefore, under the rule of striot aomtruc-
    tion; ‘3’811  EW want oi' d6iinitsnes.a.   t . .@,

          3i                    supra, the court if Grim-
lnal AppealIs                   nob mAkltq It “uulllwful
and an of’fewe f+w amj paraw to drive any vehicle on
any street or alley in the llmlts of the City oi l?slla@
in such manner a8 to rctdicats either a ‘willful‘or wanton
diaregmd for the ssfetr o? perso&m or properi$ invalid
for want of deflnltsnes-dend in violation OS 4rtiole 6,'
V.P.C., and Section 20 of Artiols I si the Conatitutlon.
                                10 9.W. (2d),652 (Tex.
Cria. ADD. - -__               WArtfcle    1147. V.I.C..
whlmh declared an assault aggrmated   when  oo,iittdl b$’
a person Fn robust health 6~ cQe wh wfal@d, to be
inrrlld because it Sailed to fix tha meamre by which
the neening of the word “aml” could be determinedi
.gs:o ous Zases 883 Xx PsriieSle
      .R, 891 (Tex. mie Ire::
    .p:                   A~’ 1
                      100     '42
                    9QW.  Va. 73
                     3se 81~0, annotation in 26 A. L. R.

                                   eupn,   ths oourt terse-
1~ stated
           “O$Jmr 82grl$,@a:Xl~lr
                             ruthr&tiss rm cited
     fa the *iffto Owe, in E%amawi, K. 43 1. R.
     Co. va state, 100 Texe 424, 2&o BiWa 767, Judge
     Bmwn, speaking for our su~ms     court, said:
      'A penal stat&e,  such no am before W, must
     bb oouched in iuch sjapltcrittbms tb#t the
Ron. med   Red Haprfs - Page 16, V-202


     party upon whom ft is to operate nag, with
     reesoneble certainty, ascertain what the stat-
     ute z%quires to be done, and when it must be
     done; otherwfae there would be uo opportunity
     Sor a person charged wfth the duty, to protect
     hlmaelf~by the p6~foraawe   of It recording
     to the law. Sutherland Stat. Conatr. @ 324;      “’
     Potterfa hrarp. Stat. 246-251."
          Based upon the above quoted authorities, we
question the validfty of the above mentioned sections
fraa the atendpoint of being definite. In the liefitof
exfstfng deeisions~on the subject it is our opinion that
such aectfotu should be made more deifnite and apeclSic,
and thereby eliminate the element of chance as to their
conatitutionelfty. By making such sections more definite
adl specific the Leglalatrulewill insure the conatitutlon-
ality OS same. This is apecifloall~~oalled to your at-
tention for the reason that unless said sections are made
more definite and apeciffo, they may, und& the decisiona
above oited, be held unoorMtltutlonal,,and even though a
holding of.oertafn apecitlo aectionr unoonetitutiona1
would not operate to atrlke down the act as a whole, it
may result In destroying fn no small degree the legLala-
tive policy intended under the aot ba a whole.
                       suMM4RY
          (1) Senate Bfll Ilo. 172, whioh is the.
     same as House Bill Ro, 140, regnlatfng t-f-
     Sic’on highweys, fs as a whole conatitutioaal.
     The doubt expressed a8 to the oonatitution-
     alfty of eeztaln sections, together with the
     reason thereSorp is apeclSf~ally pointed out
     fn the opinion.
          (2) Section 52 of said bill requiring
     an aecuaed against hfs oonsent to submit to
     blood, urine, and breath tests for the pur-
     pose of detekagfningintoxfestion, and the in-
     troduction in ev%derPeeof the results of such
HO% Fmd Red Xezvla   - Prge 17, ~-202


    teats without the coneent of the aceneed, vio-
    lates A~tfcle I, Section 10 of the Conatltu-
    tlon of Texsa.

                           Yours very truly
                       ATTQRHEY OEilERALOF T'JBXAS

                       B;&~;~"
                              Charles D. Mathews
                                       Assistant
