Untitled Texas Attorney General Opinion ( 1948 )

November 8, 1948
Han’.James C. Martin, J%q
County Attorney eJ-a”p+.
Nueces county all ruJad 61
Corpus Christi, Texas Opinion Ho. V-714. 3
Re: Whether Section 51 of
the Uniform Traffic
Code of 1947 prohibits
reckless driving as a
criminal offense.
Your letter of September 20, 1948, asks our
opinion as to whether Section 51 of the Uniform Traffic
Code OS 1947, codified as Article 6701d, Vernon’s Civil
SMtutes, do~flnes a criminal offense. We held in our
Oplnlom No. V-413, dated October 24, 1947, that the 3ec-
tlon In question was not unconstltut$onal a8 against’the
objection of Its being! lndel’lhltein its description of
the offense of reckless driving.
You have inquired as to whether Sectiom $1 ,of
the Uniform Traffic Code of 1947 makes the act of reck-
leas driving, as therein defined, unlawful or a crime.
Your position Is that since the Section In question does
mot exnreasly forbid such drlvlag, or exnresrly make such
driving tin bffense, It does ‘not create the crime or the
offense af reCkless driving.
The pertinent provisions of the Act in ques tlom
are :
“ARTICLE II--0REDIERCE TO AND EFFECT OF
TRAFFIC LAW3
”. . .
“Sec. 22. Required Obedience to Traffic
Laws. It is unlawful and unless’ot=rm-
clared in this Act wlXh respect to particular
offenses, It is a misdemeanor for any person
to.do any act forbidden or fail to perform any
act required in this Act.
Hon. James C. Martin, Page 2, V-714.
‘I
. . .
"ARTICLE V--DRIVING WHILEUIVDER TRE IK-
FLUERCE OF DRUGS AIVDRECKLESS DRIVING
II
. . .
"Sec. 51. Reckless Drlvin Every per-
son who drives am vehicle-73'
n Ye lfull or wanton
disregard of the Eights or safety of others oP'
without due caution or circumspection, and at ,, 1'
a speed or in a manner so as to endanger or be
likely to endanger a person or property shell
.be guilty,of r>ecklessdriving.
”
. . .
'ARTICLE XVI--PERALTIES AND DISPOSITIOB
OF FINES AND FORFEITURE3
"Sec. 143. Penalties for Misdemeanors.
It 1,sa misdemeanor forny~person to vlo-
any of the provisions,of this Act unless
such violation is by this Act or other law of
this State declared to be 8 felony.~
(b) Every person convicted of a misdemeanor
for a violation of any of the provisions of
this Act for which another penalty is aot pro-
vided shall be unished by a fine of not less
than One ($l.OOp Dollar nor more than Two Hun-
dred,($200.00) Dollars,."
The exact point was before the Supreme Court of
Texas in Queens Ins. Co. v. State, 86 Tex. 250, 24 9. .W.
397, 22 L. R. A. 483, reversing the'court of Civil Appeals
in 22 s. w. 1048. That case Involved a consideration of
en anti-trust statute which defined a 'trust" but felled
to prohibit expressly such act. The Court of Civil Ap-
peals at Austin held that: ,,
"It commands nothing and prohibits noth-
ing. . .
!'Th&act does not prohibit a trust, or
declare it Illegal. It does not declare it
en offense, or propose to punish It. It de-
fines a trust, but does not denounce l,t. The
act provl.des.forpenelties and forfeitures
for any violations of its provisions, but
these penalties cannot be incurred, because
,
Hon. James C. Martin, Page T,, V-714.
there Is no provision that can be Infracted
or violated. .,. . These sections, as well as
every other, proceed upon the assumption that
a trust is ll~lega~~,
and that It had been so
declared, which is not the case. There is en
important omlssFon In the act. . . . ,We must
hold that it Is not a law, and that .no suit
or prosecution can be maintained under It.’
The Supreme Court, however, after deciding
that the case must be reversed on other grounds, end
noting that a decision on the point was not necessary,
disagreed with the Court of Civil Appeals, and said:
“Confining ourselves to the letter of
the law, there Is a clear hiatus, a lack of
connection in its provisions. . . . There
Is no express declaration.that trusts are
unlawful, -- the acts which are declared to
constitute a trust are not expressly made
punishable, nor Is any act expressly de-
clared to be a violation of the provisions
of the statute; yet the language Is suffl-
cient, .we think, to manifest unmistakably
the intention.of the legislature to punish
as offenses some of the acts defined In the
first section, end it is but reasonable to
conclude that the purpose was to subject
them all to a like punishment. The inten-
tion of the legislature is the aim of stet-
utory construction, end where, though not ex-
pressed, it is clearly manifested by lmpll-
cation from the language used,,we cannot say
that it should .not have effect. That which
Is not expressed in,words IUELLbe lplalnly im-
ported’ by implication. . .
This case is a leading case in Texas on stet-
utory construction, and the language of the Court on
this point has been quoted as.authority. See Storrie
v. Houston City St. Ry. Co. (Sup. Ct.), 46 S.W. 796,
802.
The Act In question Is for the purpose of
regulating traffic. Such regulation is Impressed with
penal consequences throughou,tthe Act. Reckless driv-
ing and driving while under the Influence of drugs,,vhlch
letter act is expressly made unlawful In the Section de-
fining such actlon, e.re the two subjects of Article V
Hon. James C. Martln, Page 4,, V-714.
of the Act, and this would suggest parallel trea,tment
in so far as crlmlnellty Is concerned. In fact, Section
51, In defining reckless driving, is replete with defln-
itlve references which are incompatible with any ,lnter-
pretatlon other than that reckless driving Is prohibited.
Such language as “vilfull or wanton”, “without due cau-
tion or circumspection”, “endanger a person or property”,
“guilty” -- all connote prohibition and not condonation
or casual definition.
It will be observed that Section 51 concludes
that a ‘person committing en action within the definition
~herelnnprescrlbed shall be “guilty of reckless driving”.
Guilty Is defined in Webster’s Dictionary as:
%avlng committed a breech or breaches
of conduct; justly chargeable with, or res-
ponslbl$ for, a delinquency, crime, or sin
. . . .
Unless Section 51 be given the effect’of pro-
hibiting the activity of reckless driving, es therein de-
fined, the Section Is superfluous, inoperative and nuge-
tory. Such e construction violates a cardinal rule that
all of the language and every part of a statute should
be given effect, if reasonably possible. 39 Tex. Jur.
208, Section 112. Words may be supplied, or one word sub-
stituted for another in order to give effect ‘to the clear
intent of a statute. Davis v. State,,88 Tex. Cr. R. 183,
225 3. W. 532. Finally, es stated in Oliver v. State, 65
Tex. Cr. R. 150, 144 S.W. 601, 612:
!‘Athing which is within the intention
of the makers of a statute 1s 8s much with-
in the statute es if it were within the let-,
ter, . . .’
You are, therefore,’respectfully advised that
the activity defined In Section 51 of the Uniform Traf-
fic,Code of 1947, es reckless driving, is prohibited end
Is a criminal offense within the comprehension of Section
143 of the Act.
SUMMARY
The activity defined in Section 51 of
the Uniform Traffic Code of 1947 (Article
6701d, V. C. S.), being,reckless driving,
Bim. Jamem C . Martin, Page 5, V-714.
is prohibited within the meaning of Sec-
tion 22 oi the Act, and is a crlmlnal of-
tense within tha comprehension of Sections
143 of the Aot.
Your8 very truly
ATTORNEY @EN&AL OF TEXAS
/
BY JGtt%~
Red HcRmlel
Assistant