R-407 

EA'PTORNEY GENERAL 

PRICE DANIEL ATTORNEY GNER.4L 

Hon. 

HOIl. 

Fred Red Harris 

Joe Kilgore 

Opfni~on ~NO 0 v-202 

Confert?nce Committee Re:, ^ _ - 

Free 

Texas senate i3M House 

Austin, Texas 

Consti~tutioMlity of 

Senate Bill HO. 172 

and House Bill Ro. 

140, known as the 

"Uniform Act, Regulating Traffic on 

Highways~." 

my 16, 1947 

Dear Sirs: 

Your request for an opinion on the constitutionality 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 conference 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,particrtlarly wiah'to lnquire,aa to 

the constitutionality of AFtfcle V of S.B.. 

172 and whether or not, ,in your opinion, Section 52-A, which relates' to scientific tea~tin&to determine whether or not 8 defendant 

i8 under the influence,of intoxicating llquor, will.be held constitutional."~ 

The bill in question is one're&lating trdffic 

end travel upon t,be highways 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 inconsistent, 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 ,eabraced 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 embraced in the bill, and nothing herein is to be construed as an expression of approval or disapproval on 

OUP part as to the policy ,embraced in 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, 

CP:".~%; 19117 Jones v. Brim, 

63 Grim. Rep. 285 (Tex. 

ctJ2m Da 

165 u. 3. 180, 41 L-Ed. 

D via v. Massachusetts. 

U. 6. 43 $6 L. Ed. 71 17 Sup Ct 731 m 

167 

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 subject 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 unconstitntlonalfty 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, Ci 

1918) o 

v. APP. 

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 moneys 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. 

Grim. App. 1920) m 

Davis v. Stete, 225 3-U. 532 (Tex. 

The title to the bill In question reads es follows : 

"An Act regulating traffic, or travel 

upon the highways of the Ste,te of Texss; prescribing penalties for the violation of the 

provisions of this Act; oontaining $ sevings 

clause; and declaring en emergency. 

Certainly there Is but one subject embraced rithin the title, and it therefore meets the constitutional 

requirement In this regard v On the other hand, it 3s extremely 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 11 f (b), 

relating to the cancellation of contracts for the operation of a school bus; Section 142, relating to the sale 

of certain eutomotive equipment vhich has not been approved 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 thereof, wfll be held unoonstfiutfonal mepeiy beoanse doubt 

1s expressed as to Its vaifaity. Brown y& City of GalVastonp 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 connec tlon 

between subjects in an set so as to meet the eonstftutional Pequfrement, and we. pegaM the above mentfoned 

sectfons as examples of sutih easesO 

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\loh act-ion as 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 ppesented, pelates to Seetfon 52 of the b%ll fn questfon. 

It ppovfaes as follows: 

"(a) In any cr%m%nal 

violation of Articles 802, 8 

rosecutfon for a 

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 analysfs 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 defendant"s blood, it shall be pPesumed that the 

defendant was not ~undes the lkf'luence of fntoxicat%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,eohoE in the defendant OS blood TV 

such feet shall riot gjlve rtse to sny pPesumption that the aefeuda nt 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 defendant’s blood, it shall be presumed that the 

defendant was under the influence of intoxleating liquor. 

“4 f The foregoing provisions of this 

subdivision shall not be construed as llmiting 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 determfne 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 accused 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 aentioned 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 aonatltutional provWlon, we will disouss the puerrtlon from 

the standpotnt that it is the intention of the Legirlature 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 provisions ins dffferent States, and the above quoted section 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 detemalnfng 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 States 9 contains 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 statements msde by the defendant In open court under process 

as a witness. 

2263. 

Wiumope on Evidence, Thlrd Editlon, B 

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 eoiit2ary t,o that-‘of Vlgmore~,- ~. 

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’ 

scfentfffc 

The crltfefsm of the i?unsnle against the use of 

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~ts of Texas have rmede ft oledr that evldence eafned by the method euthorfxed fn Sectfon 52 wfthout the consent of t?ie aeouaed and agafnst his wishes fs 

not admfss’lble fn evide’me agafnst h%ms and a statute authorfzfng su(Bh a pP”ooedwe would be fn violation of Apticle I, Seotfon 10 of the Constftutfon. A discussion of 

the decfsfon reaebed in eaMsh of the two mope recent and 

leading oases on thfi bubjeat wfll be helpful %a an underrtandfng of the barfa of the Fe&as rule. 
, 

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

Cpfm. Am8 .'$I 

146 SOW. (2d) 381 (Tex. 

t, aftsr~arrest, w8s reqnimd i@ the oiiica*s to to cobtafn t&a for tlm 

purpo6e of ensbllag them ta datenina whatkar la was intoxicated. HO was wqairod to walk aad ako staddsn tums, 

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 koldlmig that thir violated Article I, motion 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 lug leq p um t)ut ne9 p o nen l 6- 

o wed Be 0P ir l lMll k e'-lied to b4 a 

lritl)8111 er to g$re wl4om60, 6 

a n6 ther pe 2wf8fo u J111a *m & ~ 

Wet hlm6el?, 

to r lb ll e ll 

evidence lmrlmimtirbg 8oomod cd ebtrfwd 

from hfr by oemmzlrioa. The pretotm 61 the 

f 

ur+nty is found in the wrim 6r the cocoa 

l w, Nemo tea&W selpatm l ocaaa19, whioh wa8 

brought to Amcwloa by occ l acoatow a8 a psrt 

of their bfMwl#ht; aad the )PI,vlle~e i@inst 

solf-iaarlri58tfe8 &88 Wrr Mkuexuy oenstmed Irf tlu oolr*tr a8 &%*a. 

36 

tk oltfzea pmte6tiw a8 bwI6 a8 t&et rfY 06 by the cemmom-law pp%maIple im tfbfoh it lo depfved, 

both tha fadePal. and akt.0 caMtIt%tleM being 

libemilj aeartrmd te pwvwt oaa#ul80~~ eeliIm6PimfrtIn. Cwp8lalr %a abe hqmete of 

the pr&ibitIoa; ati to retier l vUe*ee ial dmlrslble on tke Lrrprl tmt IrCoHant wa8 

oampallad to Ippod~. it l g 6a wt h$!#uelf, it 

ma6tappe6CtbltlYOI OMllf*liil)8 prod a8 

to rob him of, volition far tlm rtter.I 

%o follovf~ f6 teb8a fpoll 28 lttalliq 

Omae Law, 6up* s m 4348 ‘m rl*tr iatomb6 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?e obsom, that It I8 

the duty of eou=&.r 1ObePsll.y to coastrue the 

ppohIbItIon In favop of perroml pf@&s, aad 

to rafuae to pemlt any ate- temdiw toward 

their Invasion. l!fen6e)p there 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 e I 

The State’s attorney filed an able q o tlo nífor 

rehearing challenging the ooaclualon reached. In overruling 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 ennoun0 ed e 

%e think the l afer policy to be adhe+- 

emoe to the eonatrwtlon end appliaation of 

Seotlou 10, APtfo3.e 1 ef our CaUatitutlon elready glvea effect tn oup lot&g-established 

preaedentr 0a 

!fwo tsara 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 Darld000, 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 prohibit ocmpelllng an l Ob&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 applfet3 whenever one 

la under arrest for a violation of the law OP 

fs being held by the authorftfes lnve8tf@W.ng 

e chelege against him. It atanda as a guazentee to eveiryone of the fight to pefreiin ipoe 

gfving teat-any which will tend to reveal hia 

orfminal connection tith tin offense 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-lncrimination within the meaning of the constftutlonal 

provision, and apparent oonflicta appear. The 

vs~fous holdings are baaed upon, and, of necessity, arise by, what are construed to be, exceptions to the applicstion of the constltutional Inhibition, Among those exceptions sre, 

what are known as. the 'footnrint' csses. wherein identfficstion'was established by a compa ris on of footprints 

App, 245, 32 Am, Rep. 

(Walker v. Stste, 7 Tex, 

Cr. Ro 524, 132 

5%; Pitts v. Stste, 60 

Tex n 

State, 78 Tex. Cr. R. 

S.W. 801; Hsmpton v. 

pey v. State, 86 Tex, 

639, 183 S.W. 887; RI - 

Cr. R. 539, 219 3,W. f: 

Lunsford V. State, a0 

63; 

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 fingerprints; 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 dlstingufshed 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 Fncriefnates 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 stated constpplled %ti.the d%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 opfniOn thst ff Seotlon 52 be oonstrued as mandatory in pequQr%ng a person to submft to scientffio tests sgsfnst 

his consent for the purpose of determining intoxication, 

spld the use of the PesuPts of such tests against him, 

it would vfolete Sectfon 10 of Article I of the Constftutfon 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 ,%s not capsble 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 

whether consent has been g%ven; and 5$ 

fn determfning 

) 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 alcohol in the defendant’s blood ft shell be resumed that 

the defendant was Fntoxicated ~Emphaais oura 7T---FXgmPh 

4 of Seatfon 52 states that the other ~ovfsfons of the 

sectfon shall not be construed as l%m%tfng the fntroduction of other competent evfdence beepang upon the queatfon 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,usfve proof ,thst the 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 ~.%nsteaa of the word 

aumea*” 

A pa 

See Newton v. Stats, 267 S.WO ~272 (Tex. CP%IB. 

pre1924); F-v-e, 30 S .W. 794 (Tex, Crfm, App, 

1 8 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 operation of vehicles on private pro@rtj. 

Section 21 of the bill provides that *the provisions of this act relating to the operation of vehioles 

refer exclusively to the operation of vehic lea upon hlghways except . . . the provisions of Articles IV and V 

shall ap lg upon highways and elsewhere throughout the 

State." P kurphasls ours) 

Article IV (Section, 38 to 51, inclusive) in general 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 drlvlng while Intoxicated and reckless driving. 

To illustrste the problem presented, in the 

event a farmer, who is driving his own .vehicle on his 

own fara or reuch, collides with another vehicle owned 

by him, and driven by his employee, thereby causing damage 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 

P 

roperty. In Crossler v. Safeway Storea 6 P. (26) 151 

Idaho Sup. Cm the 

making It unlawful for’s 

rt h 1da city ordinance 

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-onwealth 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 property, 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!npair the 

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 seotfons here under consfderatfon In so far as they attempt 

to regulate situatfons sfmflar to those fn our lllustration as an entrenchment upon the rights and use of private 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 accused shall have a sDeedv Dublic trial bv 

an fmpartial jury. fie &ail have the rliht 

to demand the neture and cause of the accusation against hf In 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* l t8tuto rre- y 

qulrementa lo mind, a0 well 44 the Irul4 ob oonatruotton, 

we direct lour apeoific attention to tk ?ollotl~: 

Settion 22 m8ke8 it ual.avf~l 4ad, urrlorr otherwise 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 

Se0 tion 54 roads aa follows: 

"RECR'LRSS DRIVI RG .--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 overtaking and pa8sl.ng another 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 

bootian 69 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 

ljhs imeut 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 neuvehlo~b~ delver 4.f 0 o-la1 motor 

not east v 

-f 

Seotfoa 1%5(a ) 6 rudr 4a ‘f ollar 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, atatiowry under reef aondftfoa of loadirq 

whLsh it is 

Seatfoa 155 re8ds a8 followrx 

%a perron abrll dtiw m move on acsp 

hQ!my ray motor vehhpole, tnPlap l omnitmila~, ob 9eko Choler, OXJ any oomblbiartloa 

thereof unlaaa the equipment rrpoo any aad everi 

aald v&o10 fr fn good xozWng other and adjustment am mqufhed fn thPa sot and said vehlole 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 

fadefinite 0 The Court said8 
Hon. Fred Red liarrls - Page 15, V-202 

“It is also invalid, we think, for snother reaE100. Violetion o? it subjects the offendsr 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 beiore auoh .penalty ten 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 spea is 1 aea’ni 

3 

common to milrord operation, asl 

would affo t&e opbmtom, iv oourt, or juror 

a definite BP ~wm~wbie st#adaPd whereby to 

deternine what operationrr were exempted frem 

the ruIa end what verb not. The order must 

~therefore, under the rule of striot aomtruction; ‘3’811 EW want oi' d6iinitsnes.a. t . .@, 

3i supra, the court if Grimlnal 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-d end in violation OS 4rtiole 6,' 

V.P.C., and Section 20 of Artiols I si the Conatitutlon. 

Cria. ADD. 

10 9.W. (2d),652 (Tex. 

- -__ WArtfcle 1147. V.I.C.. 

whlmh declared an assault aggrmated when oo,iittdl b$’ 

a person Fn robust health 6~ cQe wh wfa l @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 

.p: 

Zases 883 Xx Psriie Sle 

.R, 891 (Tex. mie Ire:: A~’ 1 

100 '42 

9QW. Va. 73 

3se 81~0, annotation in 26 A. L. R. 

1~ stated 

eupn, ths oourt terse- 

“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 sjapltcrit tbms 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 statute 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 liefit of 

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 Leglalatrule will insure the conatitutlonality OS same. This is apecifloall~~oalled to your attention 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 legLalative 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-fSic’ on highweys, fs as a whole conatitutioaal. 

The doubt expressed a8 to the oonatitutionalfty 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 purpose of detekagfning intoxfestion, and the introduction in ev%derPee of the results of such 
HO% Fmd Red Xezvla - Prge 17, ~-202 

teats without the coneent of the aceneed, violates A~tfcle I, Section 10 of the Conatltutlon of Texsa. 

Yours very truly 

ATTQRHEY OEilERAL OF T'JBXAS 

B;&~;~" 

Charles D. Mathews 

Assistant