June7,1972

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 repealedArticle 1238, Vernon's Penal Code, where a cause of death occurs while a person is engaged in theviolation 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 consciousdisregard for the rights of others) cause the death of anotherperson . . .does the term conscious disregard for the rights of others mean a gross negligence. 3. In the event death is causedwhile a person is engaged in the violation of any State law or muni-

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cipal ordinance applying to the operation or the use of a vehicle, could a person be tried under the negligent homicide statuteseitherwhile in the performance of a lawful act orwhile in theperformance of an unlawful act. Section 50A **of** Article 6701dprovides as follows: "Sec. SOA. (a) Whoever shall unlawfully and unintentionally (witha consciousdisregard for the rights of others) cause the death of another person while engaged in theviolation of any State law or municipal ordinance applying to the operation or use **of** a vehicle or streetcaror to the regulation of traffic shall be guilty of homicide when such violation is theproximate cause of said death. '(b) Any person convictedof homicide by vehicle shall be finednot less than Five Hundred Dollars ($500)nor more than Two Thousand Dollars ($Z,OOO),or shallbe 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 suchperson may be tried only upon indictmentby a grand jury and may be tried only in the countywhere the violation occurred." Article 1238, Vernon'sPenal Code, is one of the statutes dealing with negligent homicide in the second degree and reads as follows:

"The definitions, rules andprovisions of the preceding articles of this chapter,with respect to negligent homicideof the first degree, apply also to the offense of negligenthomicide of the second degree, or such as is committed in the prosecution of an unlawful act, exceptwhen contrary to the followingprovisions." Other Companion articlesof Chapter 14 of the Penal Code entitled "Homicide by Negligence", must be consulted to bring

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into focus the meaning of Article 1238 and include the following: Article 1230 reads,

"Homicideby negligence is of two kinds: 1. Such as happens in theperformance of a lawful act; and 2. That which occurs in theperformance of an unlawful act." Article 1231 reads, "Whoever in the performance of a -lawfulact 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 theremust 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 injurepersons who might be passing, are examples of negligenthomicide 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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Article 1239 reads, "Negligenthomicide of the second degree can only be committedwhen the person guilty thereof is in,the act of committingor attempting the commission of an unlawful act." Article 1240 reads, "Within themeaning of an 'unlawfulact' as used in this chapter are included: 1. Such acts asby the penal law are called misdemeanors; and 2. Such acts,not being penal offenses, as would give just occasion for a civil action." Initially itmust be observed that thenegligent homicide statutes have been interpreted to cover deaths occasioned by the negligent operationof motor vehicles both when a misdemeanor statute is violated andwhen 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 firstproblem 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 particularmotor vehicle homicide into one legislative classificationor the other. The case law of Texas defines ordinary negligence as the failure to exercise thatdegree 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 therewas 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 grossnegligence to sustain a conviction thereunder. It is not so clearwhat degree of negligence is required to sustain a convictionunder the Homicide by Negligence Statutes, Article 1230, et seq., of the Penal Code. However, Article 1232 requires that ". , . theremust be an apparent danger of causing the death of the person killed or some other", and the examples of negligenthomicide set out in Article 1234 are situationswhere 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 negligencemay 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 50Awhen the negligent driving of an automobile is the cause of a death. **A** driver might well be indicted either under Section 50Aor the negligent homicide statutes (seconddegree), or both. The possibility that indictmentsmay be brought under two separate statutes raises the spectre of unconstitutional indefiniteness since negligenthomicide 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 (Section103 of the Bill), but there is no express repeal of ~thenegligent homicide provisions of the Penal Code and no general repealer clause repealing all laws in conflictwith Chapter 83 is contained in this Act.
We have concluded from a study of the authorities that in general, where given conductmay subject a person to criminal liability under two different statutesproviding for different punishments, the later statutewill 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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coveredby (Tex.Crim.Harney, Page 6 (M-1150)

both statutes. Danielv. State, 370 S.W.2d 885 1963),with exceptionswhere the earlier ispreservedby an express savings clause in the later,Ex Parte Sanford, 280 S.W.2d 776 (Tex.Crim.1956),or where both statutoryprovisionspassed 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 theMoran and Sanforddecisionswere not followed in the laterdecisionsofMcCathronv. State, 294 S.W.Zd 822, 826 (Tex.Crim.1956) and Richardsonv. State, 332 S.W.2d 736, 742 (Tex.Crim.1960), inboth of which the former member of the Court, Judge Davidson,dissented. Accordingly, the suppositionarises that the Legislature did not intend to repeal the negligenthomicide statutes. Joseph v. Travis County, 8 S.W.Zd 711 (Tex.Civ.App.1928, aff'd 16 S.W.Zd 283), and the suppositionis inpart correct since the negligenthomicide statutesof the Penal Code cover acts of negligenceother than those involvingthe driving of a motor vehicle and acts involvingamotor vehiclewhere no misdemeanor is committedby the driver. Certainly the Legislature intended topreserve theseparts of the negligent homicide statutes. However,where a death is causedby a person operating amotor vehiclewhile engaged in theviolation of a state law or municipal ordinance, the situation is different. In such cases, the Legislature,by passing specific legislationcovering the unlawfuldriving of a vehicle, intended that Section 50A solely apply to these situationsand that thenegligent homicide statutesbe repealed to that extent. Haskellv. TexasWater Commission, 380S.W.2d 1 (Tex.Civ.App.1964 error ref.,n.r.e.); Franklinv. 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 incurredby the negligent operationof a motor vehiclewhere a law or ordinance is violated, and to this extent, and this extent only, the negligenthomicide statutes have been impliedlyrepealed.
Your secondquestionshas been answeredby the above discussion -- thewords in Sec. 50A "witha consciousdisregard for the rights of others" (incausing a death through

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the.operation of a motor vehicle)prescribe a requirement that gross negligence be present to form thebasis of a conviction.
Your third question has alsobeen 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 negligenthomicide statutesbut is subject to trial under Section 50A ofArticle 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 theviolation of an ordinance or state traffic law. .~ S U,MMARY Section 5OA of Article 6701d,V.C.S. (asenacted 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 negligenthomicide statutes of Vernon's Penal Code,Articles 1230,et seq., are impliedly repealed to this extent. Section 50A requiresproof of "grossneg to obtain a conviction thereunder, ,ligence"

A driver who by gross negligence causes a death, while engaged inviolating 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 lawor ordinance, he may be tried under the negligenthomicide statutes, Articles 1238, et seq.,Vernon's Penal Code.

ney General of Texas

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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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