,    ’



                             E               EY      GENE
                                               XAS


      FVII..L WILSON
    ATTORNEYGENERAL
                                       January 12, 1961


     Honorable Bill Thomas                     opinion NO. ww-982
     County Attorney
     Taylor County                            Re:    Whether a defendant, in operating
     Abilene, Texas                                  a motor vehicle upon a public high-
                                                     way and struck and killed a child,
                                                     and did not stop but fled from the
                                                     scene of the accident, should be
                                                     indicted under the provisions of
                                                     Article 1150 of the Penal Code or
                                                     under Sections 38 or 40 of Article
     Dear Mr. Thomas:                                670~1, V.C.S.

            Your request for an opinion reads as follows:

                     "A defendant, in a case now pending before the 104th
            Judicial District Grand Jury, is accused of operating his auto-
            mobile on a public highway, and colliding with, and killing a
            child. After the accident the defendant did not stop his motor
            vehicle, but fled from the scene of the accident and was subse-
            quently arrested in another county. My question is whether the
            defendant should be charged in the indictment under Article 1150
            of the Penal Code or under Sections 38 or 40 of Article 6701d,
            V.A.C.S.

                    "Sections 38 and 40, Article 6701d, V.A.C.S., and Article
            1150 of the Penal Code are inconsistent statutes, though such
            statutes have similar penalties, they Prescribed different duties
            to be performed by the accused.

                    "In two recent cases the question was discussed indirectly
            in dicta. Though no final determination of the question was made,
            these cases indicate that Article 1150 of the Penal Code has been
            repealed by Sections 38 and 40 of Article 67Old, V.A.C.S. In
            Redding v. State, 316 S.W.2d 724 [1958], a defendant was charged :,
            with having fled from the scene of an accident where no injury had
            occurred. The Co@.aint and Information were drawn under Sections
            39 and 40, Article 670~1, V.A.C.S., and the Court said:
Honorable Bill Thomas, Page 2    (~~-982)

                     "'Section 40 requires that in all cases
               covered by Section 39, supra, the driver of a
               vehicle involved in an accident should give to
               the occupants of the other vehicle certain speci-
               fied aid and information.

                     "'(8)   The Legislature having created the
               misdemeanor offense of failure to stop and render
               aid after a~ collision resulting only in damage.to
               another vehicle, Article 1150, V.A.P.C., insofar
               as it is in conflict with the misdemeanor statute,
               was superseded and repealed.

                     "'We,need not here consider the effect of
               Article 6701d, Section 38 and 40, which define a
               felony offense and provide the same punishment
               provided for the violation of Article 1150, V.A.
               P.C. That question is not before us.'"

               "A subsequent case styled Blum vs. State, 317 S.W.2d 931,
       [1958] in the dissenting opinion Judge Davidson said:

                     "'This conviction, the, must be sustained--if
               at all--under Section 38, of Article 6701d, R.C.S.
               As pointed out, the indictment wholly fails to allege
               the constitutent elements of that statute.

                     "'If the holding in the Redding case'is correct,
               then this conviction cannot be sustained under Article
               1150, P.C., because that statute ceased to exist in 1947.
               If Sec. 38 of Article 6701a, R.C.S, superseded Article
               1150, P.C., then in order to affirm this conviction under
               the section (Section 38 of Article 6701d, R.C.S.) the
               indictment must allege a violation of that section.'n

               "In this case the defendant caused his automobile to collide
       with a person and injure that person and the evidence showed the defen-
       dant who was driving fled from the scene of the accident. This question
       was not discussed by the majority."

       The Redding,case, supra, holds that Article 1150 of the Penal.Code, was
repealed insofar as it conflicts with Section 39, Article 670ld. That IS, where
there has been property damage only. The validity.of Sections 38,and 40 was not
discussed. The Court in the Redding case, supra, held that Section 39 of Article
6701d was valid; there is no indication that Sections 38 and 40 are not valid.
.-




Honorable Bill Thomas, Page 3   NW-982)

Therefore, in a proper case, an indictment drawn under those sections should
be valid.

       The Blum case, supra, affirmed a conviction on an indictment in the form
set out in fudge Davidson's dissent when there had been bodily injury in the
accident. Apparently the indictment in the Blum case was drawn under Article
1150, Texas Penal Code.

       We feel therefore, that an indictment drawn under Sections 38 and 40
of Article 6701d, Vernon's Civil Statutes, would be valid, as would be an
indictment drawn using the form in the Blum case.

                                    SUMMARY

               Where a defendant, in operating a motor vehicle upon a
       public highway and struck and killed a child, and did not stop but
       fled from the scene of the accident, he should be indicted under
       the provisions of Sections 38 and kO,of Article 6701d, V.C.S, or
       by use of the form used in Blum v. State, 317 S.W.2d 931 (1958)
       which is apparently drawn under Article 1150 of the Texas Penal
       Code.

                                              Yours very truly,

                                              WILL WILSON
                                              Attorney General of Texas



                                              BY

                                                   Assistant

APPROVED:

OPINION COMMITTEE
W. V. Geppert

Gordon C. Cass
Tom I. McFarling
Jerry Roberts
Martin DeStefano

REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt
