June 7, 1972 

Honorable Naomi Harney Opinion No. ~-~~5,-, 

County Attorney 

Potter County Courthouse Re: The effect of the enactAmarillo, Texas 79101 ment of Section SOA of 

Article 6701d, V.C.S. 

on the negligent homicide 

statutes of the Penal 

Code, Articles 1230, et 

seq; the degree of negligence required by Section 50A; and related 

Dear Miss Harney: questions. 

you have asked our opinion regarding the construction to 

be placed on Article 6701d, Section SOA, Vernon'a Civil Statutes. This statute, passed by the 62nd Legislature, became 

effective on August 29, 1971. 

The following questions are posed for our consideration. 

1. Whether Article 6701d, Section SOA, Vernon's Civil Statutes, impliedly repealed Article 

1238, Vernon's Penal Code, where a cause of death 

occurs while a person is engaged in the violation 

of any State law or municipal ordinance applying 

to the operation or use of a vehicle or to the 

regulation of traffic. 

2. Whether Article 6701d, Section SOA provides whoever shall unlawfully and unintentionally 

(with a conscious disregard for the rights of others) 

cause the death of another person . . . does the term 

conscious disregard for the rights of others mean a 

gross negligence. 

3. In the event death is caused while a person 

is engaged in the violation of any State law or muni- 

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Miss Naomi Harney, Page 2 (Mi1150) 

cipal ordinance applying to the operation or the use 

of a vehicle, could a person be tried under the negligent homicide statutes either while in the performance of a lawful act or while in the performance of 

an unlawful act. 

Section 50A of Article 6701d provides as follows: 

"Sec. SOA. (a) Whoever shall unlawfully and 

unintentionally (with a conscious disregard for the 

rights of others) cause the death of another person 

while engaged in the violation of any State law or 

municipal ordinance applying to the operation or 

use of a vehicle or streetcar or to the regulation 

of traffic shall be guilty of homicide when such 

violation is the proximate cause of said death. 

'(b) Any person convicted of homicide by 

vehicle shall be fined not less than Five Hundred 

Dollars ($500) nor more than Two Thousand Dollars 

($Z,OOO), or shall be imprisoned in the county jail 

not less than three (3) months nor more than one 

(1) year, or may be so fined and so imprisoned; 

provided, however, that such person may be tried 

only upon indictment by a grand jury and may be 

tried only in the county where the violation occurred." 

Article 1238, Vernon's Penal Code, is one of the statutes 

dealing with negligent homicide in the second degree and reads 

as follows: 

"The definitions, rules and provisions of the 

preceding articles of this chapter, with respect 

to negligent homicide of the first degree, apply 

also to the offense of negligent homicide of the 

second degree, or such as is committed in the prosecution of an unlawful act, except when contrary 

to the following provisions." 

Other Companion articles of Chapter 14 of the Penal Code 

entitled "Homicide by Negligence", must be consulted to bring 

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Miss Naomi Harney, Page 3 (M-1150) 

into focus the meaning of Article 1238 and include the following: 

Article 1230 reads, 

"Homicide by negligence is of two kinds: 

1. Such as happens in the performance of a 

lawful act; and 

2. That which occurs in the performance of an 

unlawful act." 

Article 1231 reads, 

"Whoever in the performance of a -lawful act 

shall by negligence and carelessness cause the death 

of another is guilty of negligent homicide of the 

first degree. A lawful act is one not forbidden by 

the penal law and which would give no just occasion 

for a civil action." 

Article 1232 reads, 

"To constitute this offense there must be an 

apparent danger of causing the death of the person 

killed or some other." 

Article 1234 Examples, reads, 

"Throwing timbers by a workman from the roof or 

upper part of the house in a public street or highway, 

or where a number of persons are known to be around 

the house, or discharging firearms on or near a public 

highway other than a street in a town or city in such 

manner as would be likely to injure persons who might 

be passing, are examples of negligent homicide of the 

first degree, in case of death resulting therefrom. 

If death is caused by the careless discharge of firearms in a public street of a town or city, the offense 

will be of a higher degree." 

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Miss Naomi Harney, Page 4 (M-1150) 

Article 1239 reads, 

"Negligent homicide of the second degree can 

only be committed when the person guilty thereof 

is in,the act of committing or attempting the commission of an unlawful act." 

Article 1240 reads, 

"Within the meaning of an 'unlawful act' as used 

in this chapter are included: 

1. Such acts as by the penal law are called 

misdemeanors; and 

2. Such acts, not being penal offenses, as 

would give just occasion for a civil action." 

Initially it must be observed that the negligent homicide statutes have been interpreted to cover deaths occasioned 

by the negligent operation of motor vehicles both when a misdemeanor statute is violated and when one is not. Mackey v. 

State, 400 S.W.Zd 764 (Tex.Crim. 1960); De Mary v. State, 423 

md 331 (Tex.Crim. 1968). 

The first problem encountered in answering your inquiries 

is whether Section 50A and the negligent homicide statutes 

cover the same acts or whether the different definitions of 

negligence in the two enactments furnish a reasonable basis 

for putting a particular motor vehicle homicide into one legislative classification or the other. 

The case law of Texas defines ordinary negligence as the 

failure to exercise that degree of care that a person with ordinary prudence would exercise under the same or similar circumstances. Buchanan v. Rose, 138 Tex. 390, 159 S.W.Zd 109 

(1942) ; Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 

175 S.W.2d 249 (1943). 

Gross negligence is an entire failure to exercise care, 

or the exercise of so slight a degree of care as to justify the 

belief that there was a conscious indifference to the rights, 

safety and welfare of others. Texas Pac. Coal & Oil Co.-v. 

Robertson, 125 Tex. 4, 79 S.W.2d 830 (1935); Bennett v. Howard, 

141 Tex. 101, 170 S.W.Zd 709 (1943); Claunch v. Bennett, 395 

S.W.2d 719 (Tex.Civ.App. 1965). 
Miss Naomi Harney, Page 5 (M-1150) 

It is readily apparent that Section 50A of Article 67Old 

requires an act of gross negligence to sustain a conviction 

thereunder. 

It is not so clear what degree of negligence is required 

to sustain a conviction under the Homicide by Negligence Statutes, 

Article 1230, et seq., of the Penal Code. However, Article 

1232 requires that ". , . there must be an apparent danger 

of causing the death of the person killed or some other", 

and the examples of negligent homicide set out in Article 

1234 are situations where the perpetrator of the example acts 

in exercising such a want of care as to justify a belief that 

there was a conscious indifference to the rights and safety 

of others so that gross negligence may be the required standard. 

Hut whatever the degree of negligence required by the negligent homicide statutes, it is clear that they can cover the 

same acts as Section 50A when the negligent driving of an automobile is the cause of a death. A driver might well be indicted 

either under Section 50A or the negligent homicide statutes 

(second degree), or both. 

The possibility that indictments may be brought under two 

separate statutes raises the spectre of unconstitutional indefiniteness since negligent homicide in the second degree 

and Section 50A privide for different penalties. And Senate 

Bill 183 of the 62nd Legislature, enacted into law as Chapter 

83, Acts of the 62nd Legislature, Regular Session, 1971, of 

which Section 50A forms a part, specifically repeals certain 

Articles of the Penal Code (Section 103 of the Bill), but 

there is no express repeal of ~the negligent homicide provisions of the Penal Code and no general repealer clause repealing all laws in conflict with Chapter 83 is contained in 

this Act. 

We have concluded from a study of the authorities that 

in general, where given conduct may subject a person to 

criminal liability under two different statutes providing 

for different punishments, the later statute will be held to 

prevail and will operate as an implied pro tanto repeal of 

the earlier statute to the extent that identical acts are 

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Miss Naomi 

covered by 

(Tex.Crim. 

Harney, Page 6 (M-1150) 

both statutes. Daniel v. State, 370 S.W.2d 885 

1963), with exceptions where the earlier is preserved by an express savings clause in the later, Ex Parte 

Sanford, 280 S.W.2d 776 (Tex.Crim. 1956), or where both 

statutory provisions passed at the same time occur in the 

same statute. Moran v. State, 122 S.W.Zd 318, 319 (Tex.Crim. 

1938). We here note that the Moran and Sanford decisions were 

not followed in the later decisions of McCathron v. State, 294 

S.W.Zd 822, 826 (Tex.Crim. 1956) and Richardson v. State, 332 

S.W.2d 736, 742 (Tex.Crim. 1960), in both of which the former 

member of the Court, Judge Davidson, dissented. 

Accordingly, the supposition arises that the Legislature 

did not intend to repeal the negligent homicide statutes. 

Joseph v. Travis County, 8 S.W.Zd 711 (Tex.Civ.App. 1928, 

aff'd 16 S.W.Zd 283), and the supposition is in part correct 

since the negligent homicide statutes of the Penal Code cover 

acts of negligence other than those involving the driving of 

a motor vehicle and acts involving a motor vehicle where no 

misdemeanor is committed by the driver. Certainly the Legislature intended to preserve these parts of the negligent 

homicide statutes. 

However, where a death is caused by a person operating 

a motor vehicle while engaged in the violation of a state law 

or municipal ordinance, the situation is different. In such 

cases, the Legislature, by passing specific legislation covering the unlawful driving of a vehicle, intended that Section 

50A solely apply to these situations and that the negligent 

homicide statutes be repealed to that extent. Haskell v. 

Texas Water Commission, 380 S.W.2d 1 (Tex.Civ.App. 1964 error 

ref., n.r.e.); Franklin v. Pritach, 334 S.W.2d 214 (Tex.Civ. 

App. 1960 error ref., n.r.e.) 

Therefore, we hold that Section 50A alone is applicable 

to deaths incurred by the negligent operation of a motor vehicle where a law or ordinance is violated, and to this extent, and this extent only, the negligent homicide statutes 

have been impliedly repealed. 

Your second questions has been answered by the above 

discussion -- the words in Sec. 50A "with a conscious disregard for the rights of others" (in causing a death through 

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Mise Naomi Warney, Page 7 (M-1150) 

the.operation of a motor vehicle) prescribe a requirement 

that gross negligence be present to form the basis of a 

conviction. 

Your third question has also been partially answered 

above. A driver engaged in violating a state law or municipal ordinance, and causing the death of another, may not 

be tried under the negligent homicide statutes but is subject to trial under Section 50A of Article 6701d. However, 

where his operation of his vehicle is negligent, but not in 

violation of a law or ordinance, he may be tried Under the 

negligent homicide statutes, Articles 1238, et seq., which 

are still effective in the absence of the violation of an 

ordinance or state traffic law. .~ 

S U,MMARY 

Section 5OA of Article 6701d, V.C.S. (as enacted 

by the 62nd Legislature, Regular Session) now covers 

deaths incurred by the grossly negligent operation of 

a motor vehicle where a state law or municipal ordinance is violated and the negligent homicide statutes 

of Vernon's Penal Code, Articles 1230, et seq., are 

impliedly repealed to this extent. 

Section 50A requires proof of "gross neg 

to obtain a conviction thereunder, 

,ligence" 

A driver who by gross negligence causes a death, 

while engaged in violating a state law or a municipal 

ordinance, may not be tried under the negligent hornitide statutes. However, where his operation of his 

vehicle is negligent, but not grossly negligent, and 

is not in violation of a law or ordinance, he may be 

tried under the negligent homicide statutes, Articles 

1238, et seq., Vernon's Penal Code. 

ney General of Texas 

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” 

I. 

Miss Naomi Harney, Page 8 (M-1150) 

Prepared by Lonny F. Zwiener 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W.E. Allen, Co-Chairman 

Max P. Flusche 

John Banks 

Lynn Taylor 

Houghton Brownlee 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

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