Untitled Texas Attorney General Opinion ( 1961 )

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E EY GENE
XAS
FVII..L WILSON
ATTORNEYGENERAL
January 12, 1961
Honorable Bill Thomas opinion NO. ww-982
County Attorney
Taylor County Re: Whether a defendant, in operating
Abilene, Texas a motor vehicle upon a public high-
way and struck and killed a child,
and did not stop but fled from the
scene of the accident, should be
indicted under the provisions of
Article 1150 of the Penal Code or
under Sections 38 or 40 of Article
Dear Mr. Thomas: 670~1, V.C.S.
Your request for an opinion reads as follows:
"A defendant, in a case now pending before the 104th
Judicial District Grand Jury, is accused of operating his auto-
mobile on a public highway, and colliding with, and killing a
child. After the accident the defendant did not stop his motor
vehicle, but fled from the scene of the accident and was subse-
quently arrested in another county. My question is whether the
defendant should be charged in the indictment under Article 1150
of the Penal Code or under Sections 38 or 40 of Article 6701d,
V.A.C.S.
"Sections 38 and 40, Article 6701d, V.A.C.S., and Article
1150 of the Penal Code are inconsistent statutes, though such
statutes have similar penalties, they Prescribed different duties
to be performed by the accused.
"In two recent cases the question was discussed indirectly
in dicta. Though no final determination of the question was made,
these cases indicate that Article 1150 of the Penal Code has been
repealed by Sections 38 and 40 of Article 67Old, V.A.C.S. In
Redding v. State, 316 S.W.2d 724 [1958], a defendant was charged :,
with having fled from the scene of an accident where no injury had
occurred. The Co@.aint and Information were drawn under Sections
39 and 40, Article 670~1, V.A.C.S., and the Court said:
Honorable Bill Thomas, Page 2 (``-982)
"'Section 40 requires that in all cases
covered by Section 39, supra, the driver of a
vehicle involved in an accident should give to
the occupants of the other vehicle certain speci-
fied aid and information.
"'(8) The Legislature having created the
misdemeanor offense of failure to stop and render
aid after a~ collision resulting only in damage.to
another vehicle, Article 1150, V.A.P.C., insofar
as it is in conflict with the misdemeanor statute,
was superseded and repealed.
"'We,need not here consider the effect of
Article 6701d, Section 38 and 40, which define a
felony offense and provide the same punishment
provided for the violation of Article 1150, V.A.
P.C. That question is not before us.'"
"A subsequent case styled Blum vs. State, 317 S.W.2d 931,
[1958] in the dissenting opinion Judge Davidson said:
"'This conviction, the, must be sustained--if
at all--under Section 38, of Article 6701d, R.C.S.
As pointed out, the indictment wholly fails to allege
the constitutent elements of that statute.
"'If the holding in the Redding case'is correct,
then this conviction cannot be sustained under Article
1150, P.C., because that statute ceased to exist in 1947.
If Sec. 38 of Article 6701a, R.C.S, superseded Article
1150, P.C., then in order to affirm this conviction under
the section (Section 38 of Article 6701d, R.C.S.) the
indictment must allege a violation of that section.'n
"In this case the defendant caused his automobile to collide
with a person and injure that person and the evidence showed the defen-
dant who was driving fled from the scene of the accident. This question
was not discussed by the majority."
The Redding,case, supra, holds that Article 1150 of the Penal.Code, was
repealed insofar as it conflicts with Section 39, Article 670ld. That IS, where
there has been property damage only. The validity.of Sections 38,and 40 was not
discussed. The Court in the Redding case, supra, held that Section 39 of Article
6701d was valid; there is no indication that Sections 38 and 40 are not valid.
.-
Honorable Bill Thomas, Page 3 NW-982)
Therefore, in a proper case, an indictment drawn under those sections should
be valid.
The Blum case, supra, affirmed a conviction on an indictment in the form
set out in fudge Davidson's dissent when there had been bodily injury in the
accident. Apparently the indictment in the Blum case was drawn under Article
1150, Texas Penal Code.
We feel therefore, that an indictment drawn under Sections 38 and 40
of Article 6701d, Vernon's Civil Statutes, would be valid, as would be an
indictment drawn using the form in the Blum case.
SUMMARY
Where a defendant, in operating a motor vehicle upon a
public highway and struck and killed a child, and did not stop but
fled from the scene of the accident, he should be indicted under
the provisions of Sections 38 and kO,of Article 6701d, V.C.S, or
by use of the form used in Blum v. State, 317 S.W.2d 931 (1958)
which is apparently drawn under Article 1150 of the Texas Penal
Code.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert
Gordon C. Cass
Tom I. McFarling
Jerry Roberts
Martin DeStefano
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt