In the Court of Criminal

Appeals of Texas

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No. PD-0799-19

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THE STATE OF TEXAS

v.

SHEILA JO HARDIN, Appellee

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On State’s Petition for Discretionary Review

From the Thirteenth Court of Appeals

Nueces County

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YEARY, J., filed a dissenting opinion in which KELLER, P.J., and 

KEEL, J., joined.

Section 542.301(a) of the Texas Transportation Code provides 

that “[a] person commits an offense if the person performs an act 
HARDIN – 2

prohibited or fails to perform an act required by this subtitle.” TEX.

TRANSP. CODE § 542.301(a) (emphasis added). Within the referenced 

subtitle, then, is Section 545.060(a) of the Texas Transportation Code, 

which contains both a requirement and a prohibition. It reads:

(a) An operator on a roadway divided into two or 

more clearly marked lanes for traffic:

(1) shall drive as nearly as practical 

entirely within a single lane; and

(2) may not move from the lane unless 

that movement can be made safely.

TEX. TRANSP. CODE § 545.060(a). A plain reading of these statutes 

together makes clear that a person commits an offense by violating 

either the requirement that the person (a)(1) drive as nearly as practical 

entirely within a single lane, or the prohibition that they (a)(2) not move 

from the lane when that movement cannot be made safely.

Today, the Court holds otherwise. It concludes instead that a 

person does not commit an offense under this provision unless and until 

he both (a)(1) fails to drive as nearly as practical entirely within a single 

lane, and (a)(2) moves from the lane when that movement cannot be 

made safely; in other words, no offense is shown until a driver deviates 

from a single lane of traffic in an unsafe manner. See Majority Opinion 

at 16 (“[W]e hold that a person only violates [the statute] if the person 

fails to maintain a single marked lane of traffic in an unsafe manner.”).1

1 After being detained on suspicion of the traffic violation at issue in 

this case, Appellant was found to be in possession of evidence supporting 

charges of fraudulent possession of identifying information and forgery of a 

government instrument. Majority Opinion at 3.
HARDIN – 3

But, as four of our judges recognized in Leming v. State, 493 S.W.3d 552, 

557 (Tex. Crim. App. 2016), “[t]here is a problem with this assessment 

of the statutory elements[.]”

The Court’s lead opinion in Leming explained it this way:

It seems to discount the requirement that an operator 

“drive as nearly as practical entirely within a single lane[.]” 

It essentially removes what is now Section (a)(1), requiring 

a driver to stay within his dedicated lane of traffic as much 

as it is “practical” to do so, entirely from the statute. It 

makes it an offense only to ignore the prohibition against 

changing lanes when the conditions for changing lanes are 

not safe. 

Id.

The Court says that any reading of the statute other than its own 

ignores the conjunction “and” that separates Subsection (1) from 

Subsection (2). See Majority Opinion at 12–13 & n. 29 (citing Antonin 

Scalia & Bryan A. Garner, READING LAW 116 (2012), for the proposition 

that “and combines items while or creates alternatives”). But Section 

545.060(a) does not read like the typical penal code provision that uses 

the conjunctive “and” to identify constituent elements of a single offense.

Such a statute is usually structured as follows:

“A) A person commits an offense if the person:

1) . . .,

2) . . ., and

3) . . ..”

The use of the conjunctive “and” in a statute structured in this way 

makes it plain, of course, that the various subsections define necessary 
HARDIN – 4

elements of the “offense” referenced in the statutory preamble, all of 

which must be proven to establish commission of the offense. They do 

not define alternative ways of committing the offense, like the word “or” 

would be expected to do in that context.

Section 545.060(a) of the Transportation Code, however, is 

structured differently than the typical penal provision. In fact, in and of 

itself, it is not a penal provision at all. Its opening phrase says nothing 

about committing an offense. Instead, it begins by identifying to whom, 

and in what location, it applies: “An operator on a roadway divided into 

two or more clearly marked lanes for traffic:”. TEX. TRANSP. CODE § 

545.060(a). It then sets out a requirement, in Subsection (1): “shall drive 

as nearly as practical entirely within a single lane[.]” Id. And next, in 

Subsection (2), it sets out a prohibition: “may not move from the lane 

unless that movement can be made safely.” Id. 

Thus, Section 545.060(a) sets out both a requirement and a 

prohibition—either of which may form the basis for a penal offense 

under Section 542.301(a)—the actual penal provision in the 

Transportation Code. See TEX. TRANSP. CODE § 542.301(a) (“A person 

commits an offense if the person performs an act prohibited or fails to 

perform an act required by this subtitle.”) (emphasis added). In this way, 

the subsections of Section 545.060(a) themselves independently 

establish what constitutes an offense, with each subsection defining a 

discretely actionable offense—just as the word “or” might in a more 

typical penal provision. If a person driving on a clearly divided roadway 

either fails to remain “as nearly as practical within a single lane[,]” or

he “move[s] from” one dedicated lane into another when it is not safe to 
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do so, he has committed an offense according to the statutory scheme.2

That is how the conjunctive “and” works in this statutory context.

The Court says that its construction of the statute is the only one 

“that gives effect to both statutory subsections.” Majority Opinion at 13. 

It seems to me that the opposite is true. As the lead opinion in Leming

explained, as quoted above, the Court’s interpretation effectively reads 

Subsection (a)(1) out of the statute, making the safety of any deviation 

from a single lane the lynchpin of a single offense. Otherwise failing to 

stay within a dedicated lane, even when it is practical to do so, as 

described in Section (a)(1), will make not a bit of difference so long as 

the driver does not “move from” that lane in a manner that is unsafe.3

2 Or, as Judge Richardson explained it in his concurring opinion in 

Leming:

The statute provides that a driver “shall drive as nearly as 

practical entirely within a single lane,” and a driver “may not 

move from the lane unless that movement can be made safely.” 

This means that a person could be in violation of that statute if 

he or she fails to do either one of the required actions. This 

interpretation does not turn the “and” into an “or.” The “and” 

means that both are statutory requirements. It is the potential 

violation of the statute that incorporates the “or.”

493 S.W.3d at 566 (Richardson, J., concurring).

3 A driver can fail to stay within his dedicated lane without wholly 

“mov[ing] from” his lane. It would not be unreasonable to construe the phrase 

“move from” to mean a “move from” one lane completely into another: a change

of lanes. Such a reading would nullify the Court’s assumption that the two 

subsections of the statute address “the same conduct[.]” Majority Opinion at 

13. If Subsection (a)(1) deals with swerving partially outside of a dedicated lane

(or, more precisely, failing to stay “entirely within a single lane”), while 

Subsection (a)(2) deals with wholesale lane changes, then the proscribed 

conduct is not the same from one subsection to the other, and it then makes
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Still, the Court concludes that there is necessarily an

“interconnectedness” between the two subsections that somehow makes 

them elements of the same offense. Id. at 14. But that perceived 

“interconnectedness” seems to me to derive solely from the Court’s faulty 

understanding of the conjunctive “and” between the subsections of the 

statute. I see no other intrinsic source for it.

The Court also claims that my understanding of the statute 

“would render subsection (a)(2) meaningless.”4 Id. at 15. The reason, if 

I understand it correctly, is that the Transportation Code already 

contains a provision that prohibits drivers from “mov[ing] right or left 

on a roadway, unless movement can be made safely.” Id. at 15. (citing 

TEX. TRANSP. CODE § 545.103). What I believe the Court is suggesting 

here is that to read Subsection 545.060(a)(2) to identify a discrete 

offense, apart from Subsection 545.060(a)(1), would create an offense 

that would be redundant of the prohibition already set out in Section 

sense for the Legislature to include a “safety” component to the latter but not 

necessarily to the former.

In any event, I do not think that the “safety” component of Subsection 

(a)(2) can sensibly be read to apply to the failure-to-stay-wholly-within-adedicated-lane requirement of Subsection (a)(1) under any circumstances. But 

that is what the Court’s construction of the statute accomplishes today: A 

driver who fails to remain wholly within his dedicated lane will nevertheless 

escape prosecution under Section 545.060(a), at least so long as that conduct 

does not take the form of wholly “mov[ing] from” his lane, and then doing so 

unsafely. But a driver who “move[s] from” his lane unsafely may always be 

prosecuted, without reference to the requirement to stay wholly within his 

dedicated lane so long as it is practical. In this way, the Court’s reading of the 

statute eviscerates Subsection (a)(1).

4 In fact, the Court’s own reading of the statute renders Subsection 

(a)(1) meaningless. See note 3, ante.
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545.103: moving right or left on a roadway when it is unsafe to do so.

I disagree, however, that Section 545.103 and Subsection 

545.060(a)(2) are so co-extensive as to render Subsection 545.060(a)(2) 

wholly superfluous. Section 545.103 requires safe conditions with

respect to any lateral movement on any roadway. Subsection 

545.060(a)(2) prohibits any “move from” one dedicated lane into another 

on a clearly divided road. Depending on how we construe the breadth of 

the phrase “move from,” Subsection 545.060(a)(2) may only apply to 

unsafe lane changes,5 whereas the former would plainly apply to any

unsafe lateral movement on any category of roadway. While it might be 

appropriate to read the two provisions in pari materia (especially if their 

punishment provisions differed, which they do not),6 I perceive no 

redundancy that necessarily undermines my understanding that 

Subsection (a)(2) of Section 545.060 has a discrete effect from Subsection 

(a)(1). The Court’s concern in this regard is overinflated.7

5 See note 3, ante.

6 See Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008) 

(observing that “a defendant has a due process right to be prosecuted under a 

‘special’ statute that is in pari materia with a broader statute when these 

statutes irreconcilably conflict.”) (quoting Ex parte Smith, 185 S.W.3d 887, 893 

(Tex. Crim. App. 2006)). Section 542.301(b) of the Transportation Code 

provides that, “[e]xcept as otherwise provided, an offense under this subtitle is 

a misdemeanor.” TEX. TRANSP. CODE § 542.301(b). Neither Section 545.060(a) 

nor Section 545.103 provides for a punishment that is otherwise than that 

provided by Section 542.301(b).

7 In any event, any redundancy between the two statutes would not be 

saved by the Court’s present construction of Section 545.060(a)—since it has 

rendered Subsection (a)(1) of that Section superfluous. All that is left is 

Subsection (a)(2), which is the very provision that the Court now maintains is 

redundant of Section 545.103 of the Transportation Code.
HARDIN – 8

Finally, the Court argues that the statute’s history supports its 

conclusion that Section 545.060(a) only sets out a single offense. 

Majority Opinion at 19–20. The Court first observes that the statutory 

predecessor to Section 545.060(a) was not divided into subsections, and 

the full text was contained within “a single sentence.” Id. at 19 (citing 

former Article 6701d, § 60). Of course, though now divided into 

subsections, Section 545.060(a) is also still comprised only of a single 

sentence. That a “single sentence” is involved proves nothing.

Continuing its “statutory history” argument, the Court points out 

that the legislative codification of the statute as part of its “statutory 

revision program” was not supposed to effectuate substantive changes 

but was “cosmetic” only. Id. at 20. From this the Court concludes that 

“the statutory history suggests that the legislature has always intended 

that this subsection create only one offense.” Id. Missing from this final 

argument is any indication of what the predecessor statute—Article 

9701d, Section 60—was authoritatively construed to mean in the past. 

As was pointed out in the part of Leming that spoke for four members of 

the Court, “[t]his Court has yet to construe this statutory language.” 493 

S.W.3d at 557. 

While there were at that time intermediate courts of appeals 

opinions on the subject, id. at 557 & n.6, prior to Leming, this Court had

never construed the statute, in either its present or its former versions. 

That the codification of Article 9701d, Section 60, was not meant to 

effectuate a substantive change means nothing in the absence of binding 

authority construing that former language in the first place. Short of 

Leming, the proper construction of Section 545.060(a) of the 
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Transportation Code remains today, as far as this Court is concerned, a 

question of first impression. We have yet to construe the “single 

sentence” at issue in this case as it appeared in either current Section 

545.060(a) of the Transportation Code, or former Section 60 of Article 

9701d. Ultimately, nothing about the statute’s history sheds the kind of 

light the Court suggests.

The Court’s approach is also likely to produce problems with 

interpretation of other parts of the Transportation Code that are written 

similarly to Section 545.060(a). For example, Section 545.066(a) 

(Passing a School Bus; Offense) is structured almost identically to 

Section 545.060(a). Section 545.066(a) contains both a requirement and 

a prohibition, numbered as subsections (a)(1) and (a)(2), respectively, 

with each subsection separated by the word “and”. Specifically, Section 

545.066(a) provides: 

(a) An operator on a highway, when approaching from 

either direction a school bus stopped on the highway 

to receive or discharge a student:

(1) shall stop before reaching the school bus when 

the bus is operating a visual signal as required 

by Section 547.701 (Additional Equipment 

Requirements for School Buses and Other 

Buses Used to Transport Schoolchildren); and

(2) may not proceed until:

(A) the school bus resumes motion;

(B) the operator is signaled by the bus 

driver to proceed; or

(C) the visual signal is no longer actuated.
HARDIN – 10

TEX. TRANSP. CODE § 545.066(a). The Court’s decision today may lead 

some lower courts to conclude that subsections (1) and (2) of Section 

545.066 are “interconnected,” and that since they are paired with the 

word “and,” an offense will not have been committed under Section

545.066 unless an operator both fails to stop before reaching a bus and

then proceeds before the bus resumes motion, etc.

But that interpretation will lead to the absurd result that, as long 

as an operator comes to a complete stop, proceeding in violation of 

subsection (2) cannot be an offense. After all, a court relying on this 

Court’s opinion today might say that, because the requirement and the 

prohibition are connected by the word “and,” that must mean that both 

must be proved before it can be said that an offense has been committed. 

And this is only one example of a similar statute found in the 

Transportation Code. There are many others that may be misconstrued 

by reliance on the Court’s opinion in this case. See, e.g., TEX. TRANSP.

CODE § 545.253(a) (Busses to Stop at All Railroad Crossings); id. § 

545.2535(a) (School Buses to Stop at All Railroad Crossings); id. §

545.254(a) (Vehicles Carrying Explosive Substances or Flammable 

Liquids); id. § 545.255(c) (Moving Heavy Equipment at Railroad Grade 

Crossing); id. § 545.2555(b) (Report and Investigation of Certain 

Railroad Crossing Violations); id. § 545.256 (Emerging From an Alley, 

Driveway, or Building); id. § 545.351(b) (Maximum Speed 

Requirement).

I would adhere to the view of the four judges who joined Part II of 

the opinion announcing the Court’s judgment in Leming, non-binding 

though Part II might be. Because the Court today does not, for the 
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reasons outlined above, I respectfully dissent.

FILED: November 2, 2022

PUBLISH