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## NEY GENERAL.

October24, 1969

Mr. Royal Hart Opinion RequestNo.M-495' DistrictAttorney 119thJudicial District RE: Constitutionality,of County Courthouse Article 6701d,~Section SanAngelo, Texas 166(b) and Section 166(c),Texas Civil Dear Mr. Hart: Statutes
You have requested the opinion of this office as to the constitutionalityof Article 6701d, Section 166, Subsections (b)and (c),Texas Civil Statutes. In addition you have asked for suggestionsas to the wording of'complaints made under the authority of the statute. The appropriateprovisions 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 specialhazard exists that requires lower speeds for compliancewith paragraph (b)of this Section, the limits specified in this Section or establishedas hereinafter authorized shall be lawful,but any speed in excess of the limits specified in this Section or establishedas hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:" [Subsection (a)is followedby variousparagraphs setting prima facie speed limits and definitions]

"(b) No person shall drive a vehicle

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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 shallbe so controlled as may be necessary to avoid collidingwith any person, vehicle or other conveyanceon or entering the highway in compliancewith legal requirementsand the duty of all persons to use due care. "(cl The driver of every vehicle shall, consistentwith the requirementsof paragraph (b),drive at an appropriatereduced speed when approachingand 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 statutemust 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, againsthim. This requirement is reenforcedby Article 6, Texas Penal Code,which provides that a penal statute must be written in definite and understandable terms. A presumption of constitutionalityexists,however, unless the statute in question is clearly in violation of the constitution: and a statutemav be couched in aeneral terms if the offense is defined sokhat persons of kdinary intelligence will understandwhat acts are prohibited. Rx Parte Frye, 156 S,W,2d 531 (Tex,Crim.1941). Various decisions of the Texas Court of CriminalAppeals

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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 statutewhich requireddrivers to operatevehicles I'.

. . in a carefulmanner 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 thatmotorists not exceed a specified speedwhere the territory contiguous to the highwaywas "closelybuilt up" because the term "closelybuilt up" was indefinite. A statutewas held invalid in Ladd v. State, 27 S.N'!.Zd

1098 (Tex.Crim.1930),because the re Gment that no motorists shouldpass other vehicles at a rate thatmight "endanger"persons or property set no definite standard. A conviction for reckless drivingwas 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 presentArticle 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 hasardswhen approaching and crossing an intersection or a railway grade crossing,when approachinq and going around a curve,when approaching a hill crest,when travelingupon any narrow or windinq roadway, or when special

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hazard existswith 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 collidingwith any person, vehicle, or other conveyance on or entering the highway in compliancewith legal requirementsand the duty of all persons to use due care. "(b) Where no specialhazard exists that requires lower speed for compliancewith 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 shallhe lawful,but any speed in excess of the limits specified in this subsectionor 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 followedby various paragraphs setting prima facie speed limits and definitions.] The foregoing languagewas considered to be constitutionalby this office in Attorney General's OpinionNo. 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 appellantwas chargedwith 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 (311S.W.2d 831, 838) questioned the validity of the basic prohibition against unreasonableand imprudent speed contained in Subsection l(a) of Section 8, but the court reachedno decision on thispoint,
The question of the constitutionalityof 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 thatmost stateshad laws similar to that of Texas, with a number of appellate courts having upheld

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those statutes,andmade the following conclusion:

"The aim of every appellate judge should be to achieve uniformity in interpretation of similar laws. It iswith this in mind that I alignmyself with the greatweight of authority and hold the statute constitutional

. s a .' (353 s.W.2d 231, 232).
The convictionwas reversed,however, because the information had failed to allege that the defendant's speedwas not reasonable and prudent, aswell as in excess of the prima facie limits. In overruling the state'smotion for rehearing, Judge Woodley, for the court, affirmed the position taken in the Rowland case and ruled that the statutewas constitutionalas applied to driving at a speed in excess of the prima facie limit for business districts. The defendant had been chargedwith driving in excess of the prima facie speed limit, so the holding of the courtwas 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 courtby Judqe Morrison, would indicatean inclinationon 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 generallybeen upheld. The annotationon speed regulations found in 6A.L.R. 3d 1326 contains a number of citations to cases upholdingvarious statuteswith tests such as the "reasonableand 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, 245N.Y.S.2d 1, 194 R.C.2d 831, 6A.L.R.3d 1321 (1963), upheld the New York speed law against a challenge for indefiniteness. The law in question contained the followingbasic rule worded the same as Article 6701d, Section 166(b),Texas Civil

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Statutes:

"Noperson 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 andpotential 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 situationswhen themaximum 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 specificallydefined - to such a speed as would be reasonable andprudent under the conditions

. . . ." 6A.L.R. 3d 1321, 1324.
The Rhode Island courts have taken a somewhatmore restrictive view than have theNew York courts but nonethelesshave considered the Rhode Island statutevalid. The statute considered by the court in State v. Brown, 196A2d 133 (RhodeIsland 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 specifichazards requiring reduced speed as mentioned in the statute. The court stated that the statutewas sufficiently definite to be valid, however, and that the offense of driving at an unreasonableand 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 apparentlywould not go beyond the listed hazards in determiningwhen speeds should be reducedbelow 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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reasonable and proper . . . ." The court reasoned that a drivermust obtain a license and hence must have knowledge of traffic laws and the operation of an automobileand should know what speeds are reasonableunder various circumstances. See State v. Coppes, 78 N.W.2d 10 (IowaSup.Ct.,1956). The Texas Statutemust be considered in view of the various Texas and out-of-statedecisions, as well as the constitutionaland statutoryrequirementof definiteness. Language in Judge Morrison's opinion in Eaves v. State,.,.supr~a, indicates that the Court of CriminalAppeals probablywould 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 recklessdriving statutes for vagueness. No Texas decisionhas 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 unreasonableand imprudent speed found in Section 166(b) of Article 6701dhas 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 provisionshave been foundvalid in other jurisdictions, although the courts are not unanimous.
The language of Section 166(b) and Section 166(c) of Article 6701d is more clearlywritten than that of Article 827a, Section 8, Subsection 1, in that Section 166(c) specifically directs that a driver reduce speedwhen encounteringone of the listedhazards. Thus the dictum in Rowlandv. State, supra, concerning the definitenessof Article 827a, Section 8, probablywould not be appliedby the Court of CriminalAppeals to the present statute. Althoughwe have some doubt as to the,constitutionality of the language in question,but basing our opinion solely on the opinions of our Court of CriminalAppeals this office is of the opinion that theprovisions of Article 6701d, Section 166(b) and Section 166(c),Texas Civil Statutes, are sufficiently definite tobe valid as penal provisions. See Eaves v. State, supra, and the generalholdings of courts in jurisdictionsoutside Texas, as well as the ruling of this office in Attorney General'sOpinion No. V-1562 (1952).

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The secondportion of the opinion requestdealswith the wording of complaints filedunder Article 6701d, Section 166(b) and Section 166(c). The general form of complaints before justice and corporation courts is establishedby Article 45.01,Article 45.16, andArticle 45.17, Texas Code of Criminal Procedure. The complaint should always track the languageof the first sentenceof Section 166(b) and should further allege in detail the specifichazard 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 complaintnot containing a fulldescription of the offensewill 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 sufficientlydefinite 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 theprovisions 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 AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman

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Arthur Sandlixi Jack Sparks~ Bob Lattimore RolandAllen
MEADE F. GRIFFIN Staff LegalAssistant
HAWTHORNE PHILLIPS ExecutiveAssistantAttorney General
NOLA WHITE First AssistantAttorney General

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