Sue v. State , 1963 Tex. Crim. App. LEXIS 835 ( 1963 )

WOODLEY, Presiding Judge.

This is an appeal from a conviction in County Criminal Court No. 1 of Harris County for violation of a traffic law, the punishment being a fine of $101.00.

The prosecution was instituted in the corporation court by complaint alleging that the appellant, in Harris County, did unlawfully “operate a motor vehicle, to wit, an automobile, upon a public highway situated in said County and State and did pass another vehicle in a duly marked and designated no passing zone, to wit, operating on State Highway 146 in Harris County, Texas.”

Sec. 58 of Art. 6701d Vernon’s Ann.Civ. St. authorizes the State Highway Commission to “determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous” and provides that the Highway Commission “may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle .shall obey the directions thereof.”

There is no allegation in the complaint that the appellant overtook and passed another vehicle or that he drove to the left of the highway in the duly marked and designated no passing zone.

“Passing” another vehicle is not made an uifense under the statute. Passing a vehicle traveling in the opposite direction or passing a vehicle parked on the highway is not unlawful. Nor does Sec. 58 of Art. 6701d attempt to make such passing unlawful.

In the absence of an allegation that the appellant overtook the vehicle he passed in the no passing zone, the complaint is fatally defective and will not support the conviction.

The judgment is reversed and the prosecution is ordered dismissed.