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# The Attorney General of Texas October 30, 1980

Colonel James B.Adams Director Department ofPublic Safety 5805N.Lamar Austin, Texas 78773 Dear Colonel Adams: Opinion No.M.V-260 Re: Whether conviction of involuntary manslaughter results in automatic suspension of adriver’s license

You ask whether article 668713, V.T.C.S, requires the automatic suspension of a driver’s license when the licensee isconvicted ofinvoluntary manslaughter under section 19.05of the Penal Code. You have limited your inquiry to subsections (a)(l) and (a)(3)of section 24, article 6687b, V.T.C.S., which provide that:

(a) The license of any person shall be automatically suspended lpcn f&l conviction of any of th; following offenses: 1.
3. Negligent homicide result@ from the operation of a motor vehicle;.

. . Any offense punishable as a felony under the motor vehicle laws of this State.
. . . Acts 1941,47th Leg., ch. 173, at 245. Section 19.05 of the Penal Code provides that:

(a) Aperson commits an offense ifhe: (1)recklessly causes the death of an individual; or (2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death ofan individual. Acts 1973, 63rd Leg., ch. 426, art. 2, 51,at 1123. An offense under this section constitutes athird degree felony. The Texas Penal Code, which became effective January 1, 1974, was the product of a massive undertaking designed to overhaul and codify Texas

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penal law. Acts 1973,63rd Leg., ch. 399, Sl, at ,883. Asignificant accomplishment of the code is its clear expression of the mens rea concept in criminal homicide cases in terms of intentional, knowing, reckless>~minally negligent conduct. See Penal - Code SS19.01-.07,6.03. We first consider whether involuntary manslaughter constitutes an offense
“punishable as a felony under the motor vehicle laws of this State.” V.T.C.S. art. 6687b, S24(a)(3). Traffic regulations are contained in articles 6701d to 670m-2, V.T.C.S. In 1971,the legislature added section 50Ato article 6701d;on its face, section 50A duplicated the offense of involuntary manslaughter. However, the legislature repealed that section in 1975, apparently because it intended that the Penal Code should deal with the entire stiject ofcriminal homicide. Acts 1975,64th Leg., ch. 342, S16,at 918. Our attention has not been directed to any current traffic regulation which provides that involuntary manslaughter constitutes a felony under state motor vehicle laws. Thus, we conclude that involuntary manslaughter, while certainly a felony offense, is not an offense punishable as a felony “under the motor vehicle laws of this State.”We next consider whether a driver’s license may be suspended automatically pursuant to article 6687b, section 24(a)(l), upon conviction of involuntary manslaughter. Sections 19.04 and 19.05 of the Penal Code deal, respectively, with voluntary and involuntary manslaughter. Section 19.05(a)(l) provides that a person commits involuntary manslaughter if he “recklessly” causes the death of another (whether or not he wasoperating a motor vehicle); subsection (a)(2)thereof pertains to death resulting from a driver’s accident or mistake while operating a motor vehicle while intoxicated. An individual is considered “intoxicated” when he “does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any s&stance into his body.” Section 19.05(b)(Emphasis added). The underlined language indicates that the legislature intended that the conduct specified insection 19.05(a)(2)should constitute recklessness per se. See also Penal Code S6.03. It is clear, therefore, that in order to commit involuntary manslaughter, aperson must act recklessly rather than negligently. See Moore v.State, 574S.W.2d 122(Tex. Crim. App. 1978);Mendez v. State, 575 S.W.2d36 (Tex. Crim. App. 1979);Brooks v. State, 548S.W.2d680 (Tex. Crim. App. 1977);cf, section 19.07. Article 6687b, section m(l) provides, however, that a driver’s license may automatically be suspended upon final conviction of “ne li ent homicide resulting vehicle.” (Emphasis a* from the operation of a motor While ahteral construction of this provision yields the anomalous result that alicense may automatically besuspended when adriver commits vehicular homicide with the least culpable of the four mental states prescribed in the Penal Code, but not when he acts intentionally, knowingly, or recklessly, wethink this is a matter which the legislature, and not this office, should correct. The relevant pmvisions of article 6687b, section 24have not been amended since 1941,and thus do not take into account the many changes in the criminal law area brought about bythe new Penal Code, which was enacted in 1973. However, the legislature is the body which properly should effect a reconciliation between article 6687b, section 24, and the Penal Code. Wethus conclude that under the present state of the law, conviction

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of involuntary manslaughter &es not result in automatic suspension of a ckiver’s license under article 6687b, section 24(a)(l). . It isimportant to note, however, that although involuntary manslaughter &es not result in automatic suspension of a driver’s license, it may well result in discretionary suspension of the license. Article 6687b, section 22, provides, for example, that a license may be suspended upon proof, jnter that the driver has been responsible for an accident resulting in death or serious personal injury, is an habitual reckless or negligent driver, or is incapable of driving a motor vehicle. Accordingly, assuming the required procedures are observed, a license may be suspended under the discretionary authority of the Department of Public Safety lpon conviction of involuntary manslaughter even though it may not automatically besuspended. SUMMARY Conviction of the offense of involuntary manslaughter &es not result in automatic suspension of adriver’s license, but may result indiscretionary suspension ofsaid license.

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIII Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINION COMMlTTEE Susan Garrison, Acting Chairman Jon Bible Tom Bullington Rick Gilpin C.Robert Heath

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