R-407



### EA'PTORNEY GENERAL

PRICEDANIEL ATTORNEY GNER.4L

Hon. HOIl.Fred Red Harris Joe Kilgore Opfni~on ~NO 0v-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 "UniformAct, RegulatingTraffic 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%nalityof this bill togetherwith 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 determinewhether 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,andseventy-four,aepsrete,sectio~s. Hot only does the bil~lrepealall lawsand parts of laws inconsistent,

or oonflictingwith 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'thegrave and serious problem of regulating in detail the traffic on our

:Hon. Fred Red Harris - Page 2,V-202

highways, and the concomitantproblem of the need **for** safeguardsand restrictions for thosewho **use** and go upon our highways. We are not permitted to go further than to discuss and decide questions relating to the constitutionalityof certainportions of the bill, The Constitution of this State confides to the Legislature the right and power to expressby 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 nothingherein is to be construed as an expression of approval or disapproval on OUPpart 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, iswithin the police power of the State. Ex Parte Savage, CP:".~%; 19117 Jones v. Brim,63 Grim. Rep. 285 (Tex.

ctJ2m Da 165u. 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 questionbut that the Legislature iswithin its constitutfonalauthority in dealingwith the subject embraced in the bill,

The constitutionalquestions presented relate to specific sections of the bill, In thfs connection,
we are not unmindful of the fact that Section 172 of the bill specificallyprovides that "if sny part or parts of this Act shallbe held to be unconstitutional,such unconstitntlonalftyshall not affect the validity of the remainingparts of this Act.” Such a savings clause is valid and will be enforcedby 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 statutewill always be sustained
as to portionswhich are not unconstitutionalunless the unconstitutionalportionsdareso intermingledwith the remainingportions of the statute that they cannot be severed, o, 112 Tex. 375, 247 s.w. 1 of intermingling is not presentedby the bill under oonsideration.

The first questionpresented iswhether 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 followsz

“Bobill, (except general appropriation bills, which may embrace the verious subjects and accounts, for end on eccount ofwhich 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 shallbe 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 itwill be llberellyconstrued, 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, itwill 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,teof Texss; prescribingpenalties for the violation of the provisions of this Act; oontaining $ sevings clause; and declaring en emergency. Certainly there Is but one subject embracedrithin the title, and it thereforemeets the constitutional requirement In this regard v On the otherhand, it 3s extremely doubtful es towhether the subject named in the title is the only subject dealtwith in certain sections of the bill itself. Our doubt 1s expressedwith reference to Section 49, relating to the nonus of‘eccidentre opts
as evidence in civil and crimkn&actions; Section 11 f(b), relating to the cancellation of contracts for the operation of a schoolbus; Section 142, relating to the sale of certain eutomotive equipmentvhich has not been approved by the Director of the Department of Public Safety; Sections 143 and 144, relating to the epproval of certefn eutomotlre equipmentby theDirector 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 unoonstfiutfonalmepeiy beoanse doubt 1s expressedas 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 observedby the court fn this last cfted authority, it fs extremelydffffeult to determ%ne in many oases whether there fs the required connectlon between subjects in an set so as to meet the eonstftutional Pequfrement,and we.pegaM the above mentfoned sectfonsas 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 suggestedwhile the bfll fs st%lPbefore 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, 8rosecutfon for a 02A, 802~, Texas Penal Code, Revfsed Statutes, 1925, as amended, the amount of alcohol fn the defendant'sblood at the tfme alleged as shownby ehemfoal analysfs of the defendantIsblood, uzP%ne, breath, OP otherbodfly substance shell give ‘&se to the follow%ngpresumpt%ons:

"1. If thesewas at tRat tfme 0005 per oent 0~ leas by weight of alcohol fn the defendant"sblood, it shallbe pPesumed that the defendantwas not~undesthe lkf'luence of fntoxicat%Qg l%quop;

"20 If thepewas at tbet t%me in excess of 0005 per cent but less than 0015 pep cent by wefght of e3,eohoEin the defendantOSbloodTV such feet shall riot gjlvertse to sny pPesumption that the aefeuda ntwas OP was not under the fnfluence of %ntox%eat%ngIfquor, but such fact may be eonside~edwfth other competentHon. Fred Red Harris - Page 5,V-202

evidence in determlnlng the guilt or lnnocenoe of the defendant;


### “3. If therewas at that time 0,15 per cent or more by weight of alaohol in the defendant’sblood, it shallbe presumed that the defendantwas under the influence of intoxleating liquor.


### “4 f The foregoingprovisions of this subdivision shall not be construedas llmiting the introduction of sny other competent evfdencebearing upon the questionwhether OP not the defendantwms under the influence of intoxicating liquorO”

This section squarelypresents the question of whether or not the use of scientliicmethods to determfne intoxication in cases involvingdrivingwhile 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:

“Inall crlelnal prosecutions the accused shall have a speedy public trialby
an impsrtial jury.. 0 eHe 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 onlywiththe consent of the accusede 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 aonatltutionalprovWlon, 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 identFca1wfth fts recommendations ln this regard0 See 24 Iowa Law Revfew 191 (1939);6150, Rfmeogrephed Reports of Ratfonal wets Council, “Corn-- m-tee on Tests for IntoxioationO” 19380Hon, 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 ofwhether op not statutesauthorfelng 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 States9 contains a provfsfon sfmflar to the one above quoted from the Constitution of Texas. There ape decisfons fn the different Qurfsdfctfonson both sfdes of the Issue.

ProfessorWfgmore takes the positfon that the privilege agafnst self in6rialnation6overs only statements msde by the defendant In open court underprocess 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 otherhand, Jones fn h%s~“Commentarfeson $videwe,“. Seoond Edition, 8 1391, takes a poaftfon eoiit2ary t,othat-‘of

Vlgmore~,-

~. and states that an accused should not be forced to submit to an examfnatfon or physfcal scfentlffe tests. There ape numerousdec%s%ons fn accopd w%th this view. The State of MfsQou~fhaa 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 evidencegaLned as a result of blood, urine,

Bar AssOn. Joursnal, Deoember 1935,XXI, 808.,
Re@paleas ofwhlcrhof the above two“viewsla correct, the eour~tsof Texas have rmedeft oledr that evldence eafnedby the method euthorfxed fn Sectfon 52 wfthout the consent of t?ie aeouaed and agafnst his wishes fs not admfss’lble

fn evide’meagafnst h%ms and a statute authorfzfng su(Bh

a pP”ooedwewould 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 bubjeatwfll 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 deterrimingu~ather aloohhol
we prosent. The **P66Ult6** ef **t&680** toat worn placed in evithme o In koldlmigthat 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 naylug leq pum t)ut ne9 p onen l6- owedBe

0Pir l lMll k e'-lied to b4 a **lritl)8111 er**  **to g$re**  **wl4om60, 6**  an6there

p2wf8fou

J111*~

am & **Wet hlm6el?,**  to rlble

lll evidence lmrlmimtirbg 8oomod cd ebtrfwd from hfr **by** oemmzlrioa. The pretotm 61 the

fur+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 tfbfohit 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 g6awt h$!#uelf, it **ma6tappe6CtbltlYOI** OMllf*liil)8 prod a8 to rob him of,

volition fartlm rtter.I

%o follovf~ f6 teb8a fpoll 28 lttalliq Omae Law, 6up* sm 4348 ‘m rl*tr iatomb6 to be pmt@eW by tlr o6utftutieml p$W~f8%08 th8t IL0NOm 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

establisheddoctrine that the constftutfonal fnhfbftlon is dlreoted not merely to the giving of oral testlmouy,but embraceras well the furalshlng of evidence by other meana than by word of mouth, the dfvulging, in short, of any fastwhich the aroused has a right to hold seoreteI

The State’s attorney filed an able q otlonífor rehearing challenging the ooaclualon reached. In overruling thismotion 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 ede
%e think the l

afer policy to be **adhe+-**
emoe to the eonatrwtlon end appliaation of Seotlou 10, APtfo3.e1 ef our CaUatitutlon elready glvea effect tn oup lot&g-established preaedentr0a

!fwotsara 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 throughJudge Darld000, wrote at le@h OQ the rtabJeot a In revlowing the ~8808, and in eUtlng the rule oh the oourt# itwAa bald:

“Whilethla ooMtltt&t$m81 prmdaQ3$i prohibit ocmpelllngan 

### 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 fnhfbftlenextendsand applfet3 whenever one la under arrest for a violation of the law OP fsbeing 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 tinoffense denoruu,ed by law. 44 Tex. JurDy $ 25.Bon, Fred Red Harris - Page 9,V-202

"Muchhaa been sald by this Court touching the question of what constitutea self-lncriminationwithin 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'wasestablishedby a compa**ris** on of footprints App, 245, 32Am, Rep. (Walkerv. Stste, 7 Tex,

Cr. Ro 524, 132 5%; Pitts v. Stste, 60 Texn 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, 117Tex. **Cr.** R. 396, 35 **Sdv.~** 2d 433); also, the 'fingerprint'cases, to the same effect (McGarryv. 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 (Landv. 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.

"Thebasic and underlyingprluciple upon which these exceptiona to the application of the constitutional lnhkbftlonmentioned are founded lies in the fact that the evidenae there involvedwaa not producedby the ecouaed, that la, by the independentact or volition of the aGoused, but waa produced by, and was the reault of, the acts of the officers OP otherso It follows, therefore, in the instant case, that, unless the evidencehere oomplained of was admlaslble as an exception, that is,
as having been produced by the officersas dlstingufshed from havOng been producedby the acaused, It oomes within the constltutianal lnhlbltlonmentionede The determining faotor in this case fswhether the evidencewhQoh Fncriefnates the accused was producedby him or by the officers.Bon. Fred Red Harrfs - Page 10,V-202

“Uhflenot expressly ao ststed in the opinion, the applfcatfon of ,the’ prfncfple stated constpplled %ti.the d%apoa%t%onmade’in the
case of Apodaca v0 State, 140 Tex, Cra- R. 593, 

### 146S.W. 2d 

### 381, o o q"

Based upon the sbove deciafons, ft Is our opfniOn thst ff Seotlon 52 be oonstruedas mandatory in pequQr%ng a person to submft to scientffio tests sgsfnst his consent for the purpose of determining intoxication, spldthe use of the PesuPts of such tests against him, itwould vfolete Sectfon 10 of Article I of the Constftutfon 

### ofTexss.

Even though the sectfon shouldbe construed to apply only fn cases where the accused has consented, there are severalproblems obvfouslypresent thst the Legislature should consfder, These problems are: (1) The posslbflfty of an %ntox%cstedperson to consent-- the degree of fntoxfoatfonbeyond whfch he ,%snot 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 fssueby 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 OPby the jurgas 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 thedefendant’sblood ft shellbe 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 construedas l%m%tfng the fntroduction of other competent evfdencebeepang 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 shellbe concB,usfve proof ,thstthe accused
wss intoxfcatedunder ~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, 

### 267S.WO~272 (Tex.CP%IB.pre1924); F-v-e, 30 S.W.794 (Tex,Crfm, App, 1 9510 8 The suggests change ePLmfnstes the const%tut%onal queatfon of deq%ng an accused the rfght to s tpislby jury in a cp%m%nsl, case.Hon. Fred Red Harris - Page 11, V-202

The third questionpresented 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 *theprovisions of this act relating to the operation of vehioles refer exclusively to the operation of vehiclea uponhlghways except

. . . the provisions of Articles IV and V shall ap lg upon highways and elsewhere throughout the State." Pkurphasls ours)

Article IV (Section, 38 to 51, inclusive) in general deals with accidents’ by 

### motorvehiclea involving death or personal lnjurg end reports thereon. ArticleV (Sections52 to 54, inclusive) in general deals with drlvlng while Intoxicatedand recklessdriving.

To illustrstethe problem presented, in the event a farmer,who is driving his own .vehicleon his
own fara or reuch, collideswith 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 complywith the 9rovislons of Article IV with reference to reportingaccidents 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 presenteds

We have been uuable to locateany authority speoi~lcallyauswering the question aa to the power of the State to regulate the use of vehicles oti.private

Property. 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 usedby the public. The court quoted from C-onwealth v; Qammons, 23 Pick. 201 (Sup.Ct. Mass.) w-n ktwas said:

*It is argued, thet such a construction will trench upon the right6 of private property, aud the legislaturehave 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 

### ofprivate property; it confers no right of way, la the la&a of private 

### owners. TheyRon. Fred Red Harrfs - Page 12,V-202

may excludeall 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 superintendingpower over the persons and conduct of all the citizens, may prescribe a rule by which they shall use this prfvilege,,whetherpermanent or temflorary, for thefr mutual safetyand convenience,

It is not believed that the above ofted and quoted authorities are decfsive of the questfonpresented, unless ft is assumed that the accident referred to In
our illustratfon occurred on a private road whfch was from tfme to time usedby the public. For thfs reason, we at least expressdoubt 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 entrenchmentupon 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 ofwhether certain sections of the bfll violate that portion of Artecle I, Section 10 of the Constitutfonwh9ch provfdes as follows:

"Inall crfminalprosecutfons the accused shall have a sDeedv Dublic trialbv
an fmpartial jury. fie&ail have the rliht to demand the neture and cause of the accusation against hfIn0 D 0 gan#kasfsours)

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 accusatfonagainst hfm, and unless itmeets this requirement, it is Invalid.

The well recognized rule for construing a penal statute Fs, that ff the statute fs so indefinitelydrawn,
or if ft fs of such doubtful constructfon that It cannot be understood, either from the language inwhfeh it is expressed or from somewritten law~of the State, ft fs Invalid and vofd, Rx ParteMeadows, 109 S.W. (2d) 1061 (Tex.Crfm. App, 19rrEon. Fred Red Herris - Page 13, V-202

With these oonatiClrtiou1a* 

### l t8tuto ry

re- qulrementa lo mind, a0 well 44 the Irul4ob 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 niademeanore

Se0tion 54 roads aa follows:

"RECR'LRSS

DRIVIRG.--Bvergperson iho drive8 any vehicle Inwillful or wenton dlsregerd for the safety of persons or prbpertg la guilty of reckless driving."

Section 59 reads, in part, as follows:

'lovehicle ahall be 

### drivento the left aide of the center of the raadwaf In over**taking** 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 sufficientdistaW!B ahead to

Section **60** (a) reads, in part, as followa:

"Hovehicle 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



### bootian69 

### rmt$, inpart,a8 

### follmm8

“60 driver of 4 

### whlule rhrll tura 4.0 **aa** to pooead lathe opprwitedlraatton 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~ 

### delver4.f 0 o-la1 motor

not east v -f
Seotfoa 1%5(a) 6 rudr 4a ‘f ollar 8

"Oae of the mmmo tUbmke opwmtlon shell ounsfat.

of 4 nohaafoal oomiaotion fmm the operating lever to the bmb) ahgm orban&~ 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 **ad** justmentam mqufhed fn thPa sot and said vehlole 1s in such rafe aeohanfoal oenditfonaa not to **eadeage~** the driver 

### or uther cmupant OPany peraon upon the highway.”

header trafns gept on fadefinite0 **The Court**  said8Hon. 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

‘upsteep grade(I.’ &a excepted, and inours no penalty, What co~titutes a steep grade, necessary to be determinedbeiore auoh .penaltyten be aimomaed, is neither defined by the law, nor by say order,of’ the’ **CosllBiSBiOtl.** f&w is it a generic term~ofsuch @mere’1 well deflnedmmnlng, or of such speais1 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 deterninewhat operationrr were exempted frem the ruIa end what verb not. The ordermust ~therefore,under the rule of striotaomtruc**tion;** ‘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‘orwanton diaregmd for the ssfetr o? perso&m orproperi$ invalid for want of deflnltsnes-d end in violation OS 4rtiole 6,' V.P.C., and Section 20 ofArtiols I si the Conatitutlon.

Cria. ADD. 10 9.W. (2d),652 (Tex. WArtfcle 1147.V.I.C..
- -__ whlmh declared an assault aggrmated when oo,iittdlb$’
a person Fn robust health 6~ cQe

### whwfa l @d, to be inrrlld **because** it Sailed to fix tha meamre by which the neening of theword “aml” could be determinedi .gs:o ous .p: Zases 883 Xx PsriieSle .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$Jmr82grl$,@a:Xl~lr ruthr&tiss rm cited fa the *iffto Owe, in E%amawi, K.431. 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 theRon. med Red Haprfs - Page 16, V-202

party uponwhom ft is to operatenag, with reesoneble certainty,ascertainwhat the stat**ute** z%quires to be done, and when it must be done; otherwfae therewould 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 shouldbe made more deifnite and apeclSic, and thereby eliminate the element of chance as to their conatitutionelfty. By making such sectionsmore definite adl specific the Leglalatrule will insure the conatitutlonality OS **same.** This is apecifloall~~oalledto your attention for the reason that unless said sectionsare made
more definite and apeciffo, they may, **und&** the decisiona above oited, be held unoorMtltutlonal,,andeven 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) SenateBfll Ilo.172, whioh is the.
same as House Bill Ro, 140, regnlatfng t-fSic’on highweys, fs as a whole conatitutioaal. The doubt expresseda8 to the oonatitutionalfty of eeztaln sections, togetherwith the
reason thereSorp is apeclSf~allypointed 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 suchHO%Fmd Red Xezvla - Prge 17, ~-202

teatswithout the coneent of the aceneed, violates A~tfcle I, Section 10 of the Conatltutlon of Texsa.

Yours very truly

ATTQRHEYOEilERAL

OF 

### T'JBXAS

B;&~;~"

Charles D. Mathews

Assistant