. . . 

NEY GENERAL. 

October24, 1969 

Mr. Royal Hart Opinion Request No.M-495' 

District Attorney 

119th Judicial District RE: Constitutionality,of 

County Courthouse Article 6701d, ~Section 

San Angelo, Texas 166(b) and Section 

166(c), Texas Civil 

Dear Mr. Hart: Statutes 

You have requested the opinion of this office as to 

the constitutionality of Article 6701d, Section 166, Subsections (b) and (c), Texas Civil Statutes. In addition 

you have asked for suggestions as to the wording of'complaints 

made under the authority of the statute. 

The appropriate provisions of Article 6701d, Section 

166, read as follows: 

"(a) No person shall drive a vehicle 

on a highway at a speed greater than is 

reasonable and prudent under the circumstances then existing. Except when ,a 

special hazard exists that requires lower speeds for compliance with paragraph 

(b) of this Section, the limits specified 

in this Section or established as hereinafter authorized shall be lawful, but any 

speed in excess of the limits specified 

in this Section or established as hereinafter authorized shall be prima facie 

evidence that the speed is not reasonable 

or prudent and that it is unlawful:" 

[Subsection (a) is followed by various paragraphs setting 

prima facie speed limits and definitions] 

"(b) No person shall drive a vehicle 

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Mr. Royal Hart, page 2, (M- 495 ) 

on a highway at a speed greater than is 

reasonable and prudent under the conditions 

and having regard to the actual and potential 

hazards then existing. In every event speed 

shall be so controlled as may be necessary to 

avoid colliding with any person, vehicle or 

other conveyance on or entering the highway 

in compliance with legal requirements and the 

duty of all persons to use due care. 

"(cl The driver of every vehicle shall, 

consistent with the requirements of paragraph (b), drive at an appropriate reduced 

speed when approaching and crossing an intersection or railway grade crossing, when aoproaching and going around a curve, when approaching a hill crest, when traveling upon 

any narrow or winding roadway, and when special 

hazard exists with respect to pedestrians or 

other traffic or by reason of weather or highway conditions." 

To be valid a penal statute must be clear. Article 

I, Section 10, Constitution of Texas declares that every accused 

has the right to know the nature and cause of the accusation I, 

against him. This requirement is reenforced by Article 

6, Texas Penal Code, which provides that a penal statute 

must be written in definite and understandable terms. A 

presumption of constitutionality exists, however, unless the 

statute in question is clearly in violation of the constitution: and a statute mav be couched in aeneral terms if the 

offense is defined so khat persons of kdinary intelligence 

will understand what acts are prohibited. Rx Parte Frye, 156 

S,W,2d 531 (Tex,Crim. 1941). 

Various decisions of the Texas Court of Criminal Appeals 

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Mr. Royal Hart, page 3, (M- 495 ) 

have considered the validity of early laws relating to speed 

and reckless driving. In Russell v. State, 228~S.M. 566 (Tex. 

Crim. 1921), the court hel?? invalid for lack of plain 

language a statute which required drivers to operate vehicles 

I'. . . in a careful manner with due regard for the safety 

and convenience of pedestrians and all other vehicles . . ." 

In'Ex Parte Slaughter, 243 S.M. 478 (Tex.Crim. 1922), 

the court held invalid the requirement that motorists not 

exceed a specified speed where the territory contiguous to the 

highway was "closely built up" because the term "closely built 

up" was indefinite. A statute was held invalid in Ladd v. 

State, 27 S.N'!.Zd 1098 (Tex.Crim. 1930), because the re 

Gment that no motorists should pass other vehicles at a 

rate that might "endanger" persons or property set no definite 

standard. A conviction for reckless driving was reversed 

in Ex Parte Chernosky, 217 S.W.2d 763 (Tex.Crim. 1949). 

The opinion in the Chernosk 

test of driving "wid ~~~~i~~l~,"~~~~~p~~~~~~~~~as 

indefinite, a position which was affirmed inEx~Parte De,,La 

Pena, 251 S.W.2d 136 (Tex.Crim. 1952). In the latter case, 

thecourt mentioned Article 827a. Section 8, Texas Penal Code, 

which preceded the statute under-consideration in,this opinion, 

but made no comment on the validity of the article. ~, 

The present Article 6701d, Section 166, Texas Civil Statutes, 

was enacted in a revision of Article 827a, Section 8,,.Texas ~, 

Penal Code, which read in Subsection 1 as follows: 

"(a) No person shall drive a vehicle on a 

highway at a speed greater than is reasonable 

and prudent under the conditions then existing, 

having regard to the actual and potential hasards when approaching and crossing an intersection or a railway grade crossing, when approachinq and going around a curve, when approaching a hill crest, when traveling upon 

any narrow or windinq roadway, or when special 

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1 . 

Mr. Royal Hart, page 4, (M- 495 ) 

hazard exists with respect to pedestrians or 

other traffic or by reason of weather or hiqhway conditions; and in every event, speed shall 

be so controlled as may be necessary to avoid 

colliding with any person, vehicle, or other 

conveyance on or entering the highway in compliance with legal requirements and the duty 

of all persons to use due care. 

"(b) Where no special hazard exists that 

requires lower speed for compliance with subsection l(a) of this Section, the speed of any 

vehicle not in excess of the limits specified 

in this subsection or established as hereinafter authorized shall he lawful, but any 

speed in excess of the limits specified in 

this subsection or established as hereinafter authorized shall be prima facie evidence 

that the speed is not reasonable or prudent 

and that it is unlawful:" 

[Subsection (b) was followed by various paragraphs setting 

prima facie speed limits and definitions.] The foregoing 

language was considered to be constitutional by this office in 

Attorney General's Opinion No. V-1562 (1952). 

Since the date of Opinion No. V-1562, the Court of Criminal 

Appeals has considered the validity of Article ~827a, Section 

8, in Rowland v. State' 311 S.W.2d 831 (Tex.Crim. 1958). 

In that case the appellant was charged with having driven at 

an unreasonable and imprudent speed in excess of the prima 

facie speed limit. Article 827a, Section 8, was found valid 

to the extent that prima facie speed limits set a definite 

standard. Judge Woodley's opinion in dictum (311 S.W.2d 

831, 838) questioned the validity of the basic prohibition 

against unreasonable and imprudent speed contained in Subsection l(a) of Section 8, but the court reached no decision 

on this point, 

The question of the constitutionality of Article 827a, 

Section a, arose again in Eaves v. State, 353 S.W.2d 231 

(Tex.Crim. 1962). Judge Morrison, writing for the COurt, 

reviewed the fact that most states had laws similar to that 

of Texas, with a number of appellate courts having upheld 

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Mr. Royal Rart, page 5, (M- 495 ) 

those statutes, and made the following conclusion: 

"The aim of every appellate judge should 

be to achieve uniformity in interpretation 

of similar laws. It is with this in mind 

that I align myself with the great weight 

of authority and hold the statute constitutional . s a .' (353 s.W.2d 231, 232). 

The conviction was reversed, however, because the information 

had failed to allege that the defendant's speed was not reasonable 

and prudent, as well as in excess of the prima facie limits. 

In overruling the state's motion for rehearing, Judge Woodley, 

for the court, affirmed the position taken in the Rowland 

case and ruled that the statute was constitutional as applied 

to driving at a speed in excess of the prima facie limit for 

business districts. The defendant had been charged with 

driving in excess of the prima facie speed limit, so the 

holding of the court was not squarely on the validity of 

the reasonable and prudent speed test in the absence of prima 

facie limits. The broad language in Eaves v. State, supra, 

written for the court by Judqe Morrison, would indicate an 

inclination on the part-of the court to-uphold all portions of 

Article 827a, Section 8. 

Statutes similar to that of Texas have been considered 

by the courts of other states and have generally been upheld. 

The annotation on speed regulations found in 6 A.L.R. 3d 1326 

contains a number of citations to cases upholding various 

statutes with tests such as the "reasonable and prudent" speed 

test of the Texas statute. See 6 A.L.R. 3d 1326, 1331-1339, 

Sections 5 and 6. 

The New York Court of Appeals in People v. Lewis, 13 N.Y. 

2d, 245 N.Y.S.2d 1, 194 R.C.2d 831, 6 A.L.R.3d 1321 (1963), 

upheld the New York speed law against a challenge for indefiniteness. The law in question contained the following basic rule 

worded the same as Article 6701d, Section 166(b), Texas Civil 

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Mr. Royal Hart, page 6, (M- 495 ) 

Statutes: 

"No person shall drive a motor vehicle 

on a public highway at a speed greater than 

is reasonable and prudent under the conditions 

and having regard to the actual and potential 

hazards then existing." 

The New York court reasoned that the statute in effect placed 

the duty of ordinary care on drivers and was designed for 

situations when the maximum speed should be less than the 

prescribed speed limit ". . . in order to limit the oneration 

of motor vehicles under unusual circumstances - too various to. 

be specifically defined - to such a speed as would be reasonable and prudent under the conditions . . . ." 6 A.L.R. 

3d 1321, 1324. 

The Rhode Island courts have taken a somewhat more restrictive 

view than have the New York courts but nonetheless have considered the Rhode Island statute valid. The statute considered 

by the court in State v. Brown, 196 A2d 133 (Rhode Island 

Sup.Ct., 1963), was worded similarly to the basic test contained in the Texas and New York statutes. The court reversed 

the conviction in the Brown case because the complaint against 

the defendant alleged -the basic prohibition against unreasonable and imprudent speed and did not allege any of the 

specific hazards requiring reduced speed as mentioned in the 

statute. The court stated that the statute was sufficiently 

definite to be valid, however, and that the offense of driving 

at an unreasonable and imprudent speed could result from 

driving in excess of the statutory speed limits or from 

failure to reduce speed under the conditions of hazard specified in the statute. The Rhode Island court apparently would 

not go beyond the listed hazards in determining when speeds 

should be reduced below prima facie speed limits, 

The Supreme Court of Iowa upheld a law requiring a ". . . 

careful and prudent speed not greater than nor less than is 

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Mr. Royal Hart, page 7, (M-495) 

reasonable and proper . . . ." The court reasoned that a 

driver must obtain a license and hence must have knowledge 

of traffic laws and the operation of an automobile and should 

know what speeds are reasonable under various circumstances. 

See State v. Coppes, 78 N.W.2d 10 (Iowa Sup.Ct.,1956). 

The Texas Statute must be considered in view of the 

various Texas and out-of-state decisions, as well as the 

constitutional and statutory requirement of definiteness. Language in Judge Morrison's opinion in Eaves v. State,.,.supr~a, 

indicates that the Court of Criminal Appeals probably would uphold the reasonable and prudent speed test of Article 6701d, 

Section 166(b) and Section 166(c), although some Texas decisions 

have struck down various speed and reckless driving statutes 

for vagueness. No Texas decision has invalidated the provisions 

of Section 166(b) and Section 166(c) or the rule in the prior 

penal statute, Article 827a, Section 8, Subsection 1. The 

basic prohibition against unreasonable and imprudent speed 

found in Section 166(b) of Article 6701d has been expressly 

upheld as found in an identical New York statute. People 

v. Lewis, supra. The Rhode Island courts have indicated 

the validity of speed laws like that of Texas. State v. Brown, 

supra. Similar provisions have been found valid in other jurisdictions, although the courts are not unanimous. 

The language of Section 166(b) and Section 166(c) of 

Article 6701d is more clearly written than that of Article 

827a, Section 8, Subsection 1, in that Section 166(c) specifically directs that a driver reduce speed when encountering one 

of the listed hazards. Thus the dictum in Rowland v. State, 

supra, concerning the definiteness of Article 827a, Section 8, 

probably would not be applied by the Court of Criminal Appeals 

to the present statute. 

Although we have some doubt as to the,constitutionality 

of the language in question, but basing our opinion solely on 

the opinions of our Court of Criminal Appeals this office is of 

the opinion that the provisions of Article 6701d, Section 

166(b) and Section 166(c), Texas Civil Statutes, are sufficiently 

definite to be valid as penal provisions. See Eaves v. State, 

supra, and the general holdings of courts in jurisdictions outside Texas, as well as the ruling of this office in Attorney 

General's Opinion No. V-1562 (1952). 

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Mr. Royal Hart, page 8, (M-495) 

The second portion of the opinion request deals with 

the wording of complaints filed under Article 6701d, Section 

166(b) and Section 166(c). The general form of complaints 

before justice and corporation courts is established by 

Article 45.01, Article 45.16, and Article 45.17, Texas Code 

of Criminal Procedure. The complaint should always track 

the language of the first sentence of Section 166(b) and 

should further allege in detail the specific hazard under 

Section 166(c) requiring that speed be reduced. If an 

accident is involved, the complaint should include an allegation tracking the test in the second sentence of Section 

166(b). A complaint not containing a full description of the 

offense will not be upheld. See Eaves v. State, supra. 

SUMMARY 

The provisions of Article 6701d, Section 

166(b) and Section 166(c), Texas Civil Statutes, 

are sufficiently definite to be valid as penal 

provisions, in view of the language in Eaves v. 

State, 353 S.W.2d 231 (Tex.Crim.1962). 

A complaint filed under the provisions of 

Section 166(b) and Section 166(c) should allege 

that the defendant failed to comply with the 

basic rule in the first sentence of Section 

166(b) and should allege in detail the particular 

conditions requiring that speed be reduced. 

General of Texas 

Prepared by Roland Daniel Green III 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

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Mr. Royal Hart, page 9, (M-495) 

Arthur Sandlixi 

Jack Sparks~ 

Bob Lattimore 

Roland Allen 

MEADE F. GRIFFIN 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant Attorney General 

NOLA WHITE 

First Assistant Attorney General 

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