Untitled Texas Attorney General Opinion ( 1980 )

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The Attorney General of Texas
October 30, 1980
Colonel James B. Adams Opinion No. M.V-260
Director
Department of Public Safety Re: Whether conviction of involuntary
5805 N. Lamar manslaughter results in automatic
Austin, Texas 78773 suspension of a driver’s license
Dear Colonel Adams:
You ask whether article 668713, V.T.C.S, requires the automatic
suspension of a driver’s license when the licensee is convicted of involuntary
manslaughter under section 19.05 of the Penal Code. You have limited your
inquiry to subsections (a)(l) and (a)(3) of section 24, article 6687b, V.T.C.S.,
which provide that:
(a) The license of any person shall be automatically
suspended lpcn f&l conviction of any of th;
following offenses:
1. Negligent homicide result@ from the operation
of a motor vehicle;. . .
3. Any offense punishable as a felony under the
motor vehicle laws of this State. . . .
Acts 1941, 47th Leg., ch. 173, at 245. Section 19.05 of the Penal Code
provides that:
(a) A person commits an offense if he:
(1) recklessly causes the death of an individual; or
(2) by accident or mistake when operating a motor
vehicle while intoxicated and, by reason of such
intoxication, causes the death of an individual.
Acts 1973, 63rd Leg., ch. 426, art. 2, 51, at 1123. An offense under this
section constitutes a third degree felony.
The Texas Penal Code, which became effective January 1, 1974, was
the product of a massive undertaking designed to overhaul and codify Texas
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Colonel James B. Adams - Page Two (m-260)
penal law. Acts 1973, 63rd Leg., ch. 399, Sl, at ,883. A significant accomplishment of
the code is its clear expression of the mens rea concept in criminal homicide cases in
terms of intentional, knowing, reckless>~minally negligent conduct. -See Penal
Code SS19.01-.07, 6.03.
We first consider whether involuntary manslaughter constitutes an offense
“punishable as a felony under the motor vehicle laws of this State.” V.T.C.S. art.
6687b, S24(a)(3). Traffic regulations are contained in articles 6701d to 670m-2,
V.T.C.S. In 1971, the legislature added section 50A to article 6701d; on its face, section
50A duplicated the offense of involuntary manslaughter. However, the legislature
repealed that section in 1975, apparently because it intended that the Penal Code
should deal with the entire stiject of criminal homicide. Acts 1975, 64th Leg., ch. 342,
S16, at 918. Our attention has not been directed to any current traffic regulation which
provides that involuntary manslaughter constitutes a felony under state motor vehicle
laws. Thus, we conclude that involuntary manslaughter, while certainly a felony
offense, is not an offense punishable as a felony “under the motor vehicle laws of this
State.”
We next consider whether a driver’s license may be suspended automatically
pursuant to article 6687b, section 24(a)(l), upon conviction of involuntary man-
slaughter. Sections 19.04 and 19.05 of the Penal Code deal, respectively, with
voluntary and involuntary manslaughter. Section 19.05(a)(l) provides that a person
commits involuntary manslaughter if he “recklessly” causes the death of another
(whether or not he was operating a motor vehicle); subsection (a)(2) thereof pertains to
death resulting from a driver’s accident or mistake while operating a motor vehicle
while intoxicated. An individual is considered “intoxicated” when he “does not have
the normal use of his mental or physical faculties by reason of the voluntary
introduction of any s&stance into his body.” Section 19.05(b) (Emphasis added). The
underlined language indicates that the legislature intended that the conduct specified
in section 19.05(a)(2) should constitute recklessness per se. See also Penal Code S6.03.
It is clear, therefore, that in order to commit involuntary manslaughter, a person
must act recklessly rather than negligently. See Moore v. State, 574 S.W.2d 122 (Tex.
Crim. App. 1978); Mendez v. State, 575 S.W.2d36 (Tex. Crim. App. 1979); Brooks v.
State, 548 S.W.2d 680 (Tex. Crim. App. 1977); cf, section 19.07. Article 6687b, section
m(l) provides, however, that a driver’s license may automatically be suspended upon
final conviction of “ne li ent homicide resulting from the operation of a motor
vehicle.” (Emphasis a* While a hteral construction of this provision yields the
anomalous result that a license may automatically be suspended when a driver commits
vehicular homicide with the least culpable of the four mental states prescribed in the
Penal Code, but not when he acts intentionally, knowingly, or recklessly, we think this
is a matter which the legislature, and not this office, should correct. The relevant
pmvisions of article 6687b, section 24 have not been amended since 1941, and thus do
not take into account the many changes in the criminal law area brought about by the
new Penal Code, which was enacted in 1973. However, the legislature is the body
which properly should effect a reconciliation between article 6687b, section 24, and
the Penal Code. We thus conclude that under the present state of the law, conviction
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Colonel James B. Adams - Page Three (MV-260)
of involuntary manslaughter &es not result in automatic suspension of a ckiver’s .
license under article 6687b, section 24(a)(l).
It is important to note, however, that although involuntary manslaughter &es not
result in automatic suspension of a driver’s license, it may well result in discretionary
suspension of the license. Article 6687b, section 22, provides, for example, that a
license may be suspended upon proof, jnter that the driver has been responsible
for an accident resulting in death or serious personal injury, is an habitual reckless or
negligent driver, or is incapable of driving a motor vehicle. Accordingly, assuming the
required procedures are observed, a license may be suspended under the discretionary
authority of the Department of Public Safety lpon conviction of involuntary
manslaughter even though it may not automatically be suspended.
SUMMARY
Conviction of the offense of involuntary manslaughter &es
not result in automatic suspension of a driver’s license, but may
result in discretionary suspension of said license.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Tom Bullington
Rick Gilpin
C. Robert Heath
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