Hardin, Sheila Jo ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0799-19
THE STATE OF TEXAS, Appellant
v.
SHEILA JO HARDIN
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
NUECES COUNTY
NEWELL, J. delivered the opinion of the Court in which
HERVEY, RICHARDSON, WALKER, SLAUGHTER and MCCLURE, JJ., joined.
SLAUGHTER, J., filed a concurring opinion. KELLER, P.J., filed a
dissenting opinion in which YEARY and KEEL, JJ., joined. YEARY, J.,
filed a dissenting opinion in which KELLER, P.J., and KEEL, J.,
joined.
Does a driver commit a traffic offense if the car’s right-rear tire
briefly, but safely, touches and drives over the dividing line between the
center and right lane of traffic? No. Here, a police officer stopped
Hardin — 2
Appellee for committing the traffic offense of “failing to maintain a single
marked lane of traffic” when he observed the right rear tire of her rented
U-Haul touch and drive on the striped line marking the right side of
center lane. No circumstances made this movement unsafe. Appellee
moved to suppress evidence obtained after that warrantless traffic stop,
and the trial court granted the motion. The court of appeals affirmed.
We agree.
The Traffic Stop
The facts in this case are not in dispute. Corpus Christi Police
Officer David Alfaro saw a U-Haul parked at a closed Kentucky Fried
Chicken (KFC) restaurant at around 1:19 a.m. He had previously
received a “Be on the Lookout” (BOLO) regarding a U-Haul that was
suspected of being involved in multiple burglaries. Consequently, he
followed the U-Haul when it drove away from the parking lot.
While following it, Officer Alfaro observed the vehicle in the middle
of a three-lane highway. The driver, later determined to be Appellee,
had control of the vehicle at that time. The rear passenger-side tire of
the truck briefly straddled the lane divider shortly after rounding a
curve. The truck moved slowly back towards the opposite lane divider
while remaining in its lane. Appellee did not veer or dash toward the
other lane. Appellee was not driving erratically. Appellee was not
Hardin — 3
speeding. When she drifted, she did not hit anything or even come close
to hitting anything. Office Alfaro then pulled Appellee over.
The Motion to Suppress
Based upon evidence collected pursuant to a search of Appellee’s
vehicle after the traffic stop, the State charged Appellee with fraudulent
possession of identifying information and forgery of a government
instrument. Appellee filed a motion to suppress. Appellee argued that
Officer Alfaro lacked reasonable suspicion to initiate the traffic stop and
therefore any subsequent seizure of evidence without a warrant should
be suppressed.
The State’s sole witness at the hearing on Appellee’s motion to
suppress was Officer David Alfaro. Officer Alfaro testified to the facts
recited above. Although he testified that he pulled her over for the
alleged violation and to investigate what her U-Haul was doing at the
KFC restaurant at that time of night, he only mentioned the alleged
traffic violation as justification for the traffic stop in his arrest report.
At the hearing, defense counsel introduced footage from Officer
Alfaro’s dash camera into evidence. The video depicts Appellee’s U-Haul
traveling in the middle lane of a three-lane divided highway with no
other vehicles on either side. While rounding a curve in the road to the
right, her vehicle drifts towards the left side of her lane without touching
Hardin — 4
the center lane divider on the left. After rounding the curve, and as
Officer Alfaro’s vehicle moves closer to Appellee’s vehicle, Appellee’s
vehicle corrects back to the right within her lane. Then, the right rear
tire of Appellee’s U-Haul crosses over the center lane divider on the right
for “a couple seconds” and rides on top of it for a few more. Appellee’s
U-Haul then returns to and remains in the center lane until Officer Alfaro
activates his patrol lights, and Appellee exits the highway and pulls over.
The trial court granted the motion to suppress. It supported its
order granting Appellee’s motion to suppress with the following findings
of fact and conclusions of law:
1. The trial court finds credible the testimony of Corpus
Christi Police Officer D. Alfaro that on April 23, 2017, he
observed Sheila Jo Hardin’s vehicle traveling on the
highway in front of him in the marked center lane of travel,
and that he initiated a traffic stop for failure to maintain a
single lane after he observed Hardin’s tires cross over the
striped lines marking the center lane without Hardin
signaling a lane change, although there were no other
vehicles in the vicinity at the time or any other
circumstance to suggest that this movement was unsafe.
The trial court further finds that a video recording of
Hardin’s vehicle made at the time of these observations
and entered into evidence at the hearing on [the] motion
to suppress supports Officer Alfaro’s testimony.
2. The Court further finds there was no evidence concerning
the time of alleged burglaries or the BOLO regarding the
U-Haul, the source of the information that a U-Haul was
involved in burglaries in the area, or the reliability of the
source, and there was no description of the vehicle
regarding size, license plate, etc., from which an officer
Hardin — 5
could reasonably suspect Defendant’s vehicle might be
involved in or have evidence of criminal activity.
The trial court concluded that, based upon these facts, Officer Alfaro
lacked reasonable suspicion to stop Appellee for committing a traffic
offense.
The State appealed, arguing that the trial court erred in holding
Officer Alfaro lacked reasonable suspicion to stop Appellee for
committing a traffic offense. The only argument the State raised on
appeal was that the failure to maintain a single lane is a traffic violation,
regardless of whether or not it was safe to do so, and that violation
provided reasonable suspicion for the traffic stop. 1 The court of appeals
rejected this argument and affirmed the trial court’s order suppressing
the evidence.
The State filed a petition for discretionary review. We granted
review to consider whether “The Thirteenth Court of Appeals erred in
concluding that the officer who stopped Hardin’s vehicle lacked
reasonable suspicion to stop her for failing to maintain a single lane by
swerving into another lane, whether or not this movement could be done
safely.” We hold that the court of appeals did not err and affirm.
1
State v. Hardin, No. 13-18-00244-CR, 2019 WL 3484428, at *4 (Tex. App.—Corpus Christi
Aug. 1, 2019) (not designated for publication).
Hardin — 6
Standard of Review
As the court of appeals correctly noted, we review a trial court’s
ruling on a motion to suppress under a bifurcated standard of review. 2
We give almost total deference to a trial court’s determination of
historical facts and credibility when supported by the record. 3 Likewise,
we afford almost total deference to a trial court’s ruling on mixed
questions of law and fact, if the resolution to those questions turns on
the evaluation of credibility and demeanor. 4 When the trial court makes
explicit fact findings, as the trial court did in this case, we determine
whether the evidence (viewed in the light most favorable to the trial
court’s ruling) supports these fact findings. 5 We review legal
conclusions, such as the construction of a statute, de novo. 6
Reasonable Suspicion
A warrantless traffic stop is a Fourth Amendment seizure that is
analogous to temporary detention; thus, it must be justified by
2
Hardin, 2019 WL 3484428, at *2 (citing Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013)). See also Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
3
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
4
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).
5
State v. Kelley, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).
6
Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019).
Hardin — 7
reasonable suspicion. 7 If an officer has a reasonable suspicion that a
person has committed a traffic violation, the officer may conduct a traffic
stop. 8 Reasonable suspicion exists if the officer has specific articulable
facts that, combined with rational inferences from those facts, would
lead the officer to reasonably conclude the person is, has been, or soon
will be engaged in criminal activity. 9 When making a determination of
reasonable suspicion, we consider the totality of the circumstances. 10
Here, the question of whether there was reasonable suspicion to
detain Appellee is not a function of Officer Alfaro’s demeanor or
credibility. Instead, it turns on the application of a traffic statute to
uncontested facts. To resolve the dispute in this case, we must first
construe Transportation Code §545.060, “Driving on Roadway Laned for
Traffic.” Statutory construction is a question of law that we review de
novo. 11
Statutory Construction
7
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
8
Garcia v. State, 827 S.W.3d 937, 944 (Tex. Crim. App. 1992).
9
Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007).
10
Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).
11
Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010).
Hardin — 8
When we interpret statues, we seek to effectuate the collective
intent or purpose of the legislators who enacted the legislation. 12 In
doing so, we necessarily focus our attention on the literal text of the
statute in question and attempt to discern the fair, objective meaning
of the text at the time of its enactment. 13 We follow this principle
because (1) the text of the statute is the law; (2) the text is the only
definitive evidence of what the legislators had in mind when the statute
was enacted into law; and (3) the Legislature is constitutionally entitled
to expect that the Judiciary will faithfully follow the specific text that was
adopted. 14 Our duty is to try to interpret the work of our Legislature as
best we can to fully effectuate the goals they set out. 15 Legislative intent
isn’t the law, but discerning legislative intent isn’t the end goal, either. 16
The end goal is interpreting the text of the statute. 17
In interpreting the text of the statute, we must presume that every
word in a statute has been used for a purpose and that each word,
12
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
13
Watkins v. State, 619 S.W.3d 265, 271–72 (Tex. Crim. App. 2021) (citing Boykin, 818
S.W.2d at 785).
14
Mahaffey, 316 S.W.3d at 637–38 (quoting Boykin, 818 S.W.2d at 785).
15
Watkins, 619 S.W.3d at 272.
16
Id.
17
See State v. Mancuso, 919 S.W.2d 86, 87 (Tex. Crim. App. 1996) (citing Boykin, 818
S.W.2d at 785 and TEX. CONST. art. II, § 1 for the proposition that “[i]t is the duty of the
Legislature to make laws, and it is the function of the Judiciary to interpret those laws.”).
Hardin — 9
phrase, clause, and sentence should be given effect if reasonably
possible. 18 We do not focus solely upon a discrete provision; we look at
other statutory provisions as well to harmonize text and avoid
conflicts. 19 “Time-honored canons of interpretation, both semantic and
contextual, can aid interpretation, provided the canons esteem textual
interpretation.” 20
Moreover, we read words and phrases in context and construe
them according to rules of grammar. 21 When a particular term is not
legislatively defined but has acquired a technical meaning, we construe
that term in its technical sense. 22 When it has not, we construe that
term according to common usage. 23 We may consult standard or legal
dictionaries to determine the meaning of undefined terms. 24
18
State v. Rosenbaum, 818 S.W.2d 398, 400–01 (Tex. Crim. App. 1991) (citing TEX. GOV’T.
CODE §§ 311.025(b), 311.026(a); State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App.
1997)); Morter v. State, 551 S.W.2d 715, 718 (Tex. Crim. App. 1977) (“Every word of a
statute is presumed to have been used for a purpose, and a cardinal rule of statutory
construction requires that each sentence, clause, phrase and word be given effect if
reasonably possible.”) (quoting Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96
(Tex. 1957)).
19
Watkins, 619 S.W.3d at 272.
20
BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 84 (Tex. 2017).
21
Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014).
22
Watkins, 619 S.W.3d at 272.
23
Id.
24
Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2001); Ex parte Rieck, 144
S.W.3d 510, 512–13 (Tex. Crim. App. 2004).
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Transportation Code § 545.060 and
Failure to Maintain a Single Lane
At the heart of this case is the construction of the statute that gives
rise to the offense colloquially referred to as “failure to maintain a single
lane.” Texas Transportation Code Section 545.060(a), titled “Driving on
Roadway Laned for Traffic,” gives rise to this traffic offense. Section
545.060(a) provides in relevant part:
(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. 25
Considering the statute as a whole, the statute is clear and
unambiguous. “Nearly” means “almost but not quite.” 26 “Practical” as
it is used in the statute simply means “having or displaying good
judgment: SENSIBLE.” 27 “Safely” means “free from harm or risk,”
“secure from threat of danger, harm, or loss,” or “affording safety or
25
TEX. TRANSP. CODE § 545.060(a).
26
Merriam-Webster’s Collegiate Dictionary 828 (11th ed. 2020).
27
See Webster’s II: New College Dictionary at 867 (1999); see also Black’s Law Dictionary
1418 (11th ed. 2019) (including the definition of “likely to succeed or be effective” as one
possible definition of “practical.”); see also The Brittanica Dictionary (2022),
https://www.britannica.com/dictionary/practical (including the following possible definitions:
“likely to succeed and reasonable to do or use”; “relating to what can or should be done in an
actual situation”; “logical and reasonable in a particular situation”).
Hardin — 11
security from danger, risk, or difficulty.” 28 No one disputes that we
should adopt the common understanding of these applicable terms. The
dispute, instead, centers around whether the two statutory subsections
create two different offenses or one.
A plain reading of the statute reveals that a motorist does not
commit an offense any time a tire touches or crosses a clearly marked
lane. It is only when the failure to stay “as nearly as practical” entirely
with a single lane becomes unsafe that a motorist violates the statute.
Subsection (a)(1) does not require a motorist to stay entirely within a
single lane; it only requires that a motorist remain entirely within a
single marked lane “as nearly as practical.” In other words, a motorist
is not actually required to maintain a single marked lane under
subsection (a)(1). He or she must “almost, but not quite” stay within
the lane. This section is designed to protect motorists from being
accused of a crime due to an inability to stay entirely within a single
marked lane at all times.
28
Merriam-Websters Collegiate Dictionary 1095 (11th ed. 2020); see also Cambridge Dictionary
(2022), https://dictionary.cambridge.org/us/dictionary/english/safely (defining “safely” as
meaning “in a safe way; without experiencing or causing danger or harm”); Macmillan
Dictionary (2022), https://www.macmillandictionary.com/us/dictionary/american/safely
(defining “safely” to mean “in a way that is not likely to cause damage, injury, or harm” and “in
a way that does not involve a lot of risk”); Collins Dictionary (2022),
https://www.collinsdictionary.com/us/dictionary/english/safely (“If something is done safely, it
is done in a way that makes it unlikely that anyone will be harmed.”).
Hardin — 12
Subsection (a)(2), on the other hand, prohibits any movement
from the lane unless that movement can be made safely. And while the
phrase “move from the lane” can include a complete lane change, the
scope of the statute is not textually limited to situations in which the
driver moves “entirely” from the lane because the legislature did not
modify the word “move” with the word “entirely.” Considered in
connection with subsection (a)(1), any unsafe weaving out of the lane
violates the statute but weaving out of the lane without creating a safety
risk does not violate the statute because incidental weaving is still
staying “as nearly as practical” entirely within the single lane.
Our legislature evinced an intent that these two subsections be
read together because they are joined in two ways. First, the
legislature’s use of the word “and” in the statute suggests that a driver
must both drive in a single marked lane as nearly as practical and not
move from that lane unless it can be done safely. 29 The use of the word
“and” between two words or phrases most commonly means that the
words or phrases on either side of the “and” are required. 30 For
example, in the well-known constitutional phrase “cruel and unusual
29
See Antonin Scalia & Bryan A. Garner, Reading Law 116 (2012) (“Under the
conjunctive/disjunctive canon, and combines items while or creates alternatives.”).
30
Id.
Hardin — 13
punishment” the word “and” signals that a particular punishment must
meet both standards to fall within the constitutional prohibition. 31
Second, subsection (a)(1) refers to “a single lane” while subsection
(a)(2) refers to “the lane.” Combined with the legislature’s use of the
conjunction “and” this reference to “the lane” in subsection (a)(2) is
clearly intended as a reference to the “single lane” described in
subsection (a)(1). In this way, subsection (a)(2) clarifies that the
legislature envisions a driver driving within the single lane in subsection
(a)(1) and potentially committing an offense when unsafely moving
outside of it. Accordingly, incidental movement outside a single lane
will not run afoul of the statute, but unsafe movement will.
This is the only construction of the statute that gives effect to both
statutory subsections. Even though one subsection arguably refers to a
required act and the other refers to a prohibited act, both subsections
are necessarily focused on the same conduct—moving out of the same
single lane. In this way, both (a)(1) and (a)(2) are dependent upon
each other. The phrase “as nearly as practical” is given effect by
providing the circumstances in which a motorist does not commit an
offense even if he or she fails to stay entirely within a single lane.
Invariably the determination of when movement outside of a single lane
31
Id.
Hardin — 14
can be characterized as no longer staying “almost, but not quite”
entirely within a single lane requires resort to facts that suggest the
continued movement outside the single lane is not safe. And that is how
the safety requirement in (a)(2) is given effect because it provides a
way of evaluating when a motorist’s inability to stay within the lane goes
beyond incidental movements outside the lane and rises to the level of
a traffic offense. Reading the statute as two separate requirements
overlooks the interconnectedness of each subsection.
Conversely, reading the statutory subsections as two independent
requirements would render subsection (a)(1) unconstitutionally vague.
Generally, a penal statute must define a criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary or
discriminatory enforcement. 32 Had the statute created a duty to stay
entirely within a single lane, we might draw a different conclusion. But
(a)(1) creates a duty to stay “as nearly as practical” entirely within a
single lane. Even assuming a motorist has notice of when he or she is
no longer being “practical,” it is impossible for a motorist to know what
constitutes “almost, but not quite” practical for purposes of avoiding
criminal liability. In this manner, subsection (a)(1), when read alone,
32
Kolender v. Lawson, 461 U.S. 352, 357 (1983).
Hardin — 15
not only fails to tell ordinary citizens how they are supposed to drive, it
also encourages arbitrary enforcement by leaving the question of when
someone fails to drive “as nearly as practical” within a single lane
entirely up to the arresting officer.
Further, reading the subsections independently of each other
would render subsection (a)(2) meaningless. Recognizing an offense
for any movement from a single marked lane that is something more
significant than driving “as nearly as practical” within a single lane but
nevertheless safe would necessarily subsume any offense based upon
an “unsafe” movement from that lane. There would be no reason to
ever evaluate whether movement from the lane was “safe” if the only
necessary showing is whether the movement was no longer “as nearly
as practical.”
Finally, this reading of the statute would create a conflict with
Transportation Code § 545.103, which prohibits a driver from moving
right or left on a roadway unless that movement can be made safely. 33
Reading the two statutory subsections as interconnected and dependent
33
See TEX. TRANSP. CODE § 545.103 (“An operator may not turn the vehicle to enter a private
road or driveway, otherwise turn the vehicle from a direct course, or move right or left on a
roadway unless movement can be made safely.”). Nothing in the text of this statute limits
its application to unmarked roadways. To the contrary, the Transportation Code defines
“laned roadway” as a type of “roadway.” TEX. TRANSP. CODE §541.302. And the Legislature’s
use of the broader term “roadway” in §545.103 evinces an intent that the statute apply to
roadways with or without lanes.
Hardin — 16
on each other is the only way to give effect to not only the statute at
issue but also the statue’s place within the legislative scheme.
Consequently, we hold that a person only violates Transportation Code
§ 545.060(a) if the person fails to maintain a single marked lane of
traffic in an unsafe manner.
In this case, we are only concerned with whether there was
reasonable suspicion for Officer Alfaro to stop Appellee for violating §
545.060(a). The trial court found that Appellee’s tires crossed over the
striped lines marking the center lane without Appellee signaling a lane
change. This finding is supported by the record, including a video of
Appellee’s driving before the stop, which shows the right rear wheel of
Appellee’s U-Haul driving on and slightly over the lane divider for a few
seconds. But the trial court also found that there were no other vehicles
in the vicinity at the time or any other circumstances that would suggest
that Appellee’s movement was unsafe. This finding is also supported by
the record, and the State does not challenge it on appeal. Given these
findings, we agree with the court of appeals that the trial court did not
err in granting Appellee’s motion to suppress because without any
evidence suggesting that this movement was unsafe, Officer Alfaro
lacked reasonable suspicion to stop her vehicle. 34 At most, the record
34
As noted below by the court of appeals, the State does not argue that the BOLO warning
provided Officer Alfaro with reasonable suspicion to stop Hardin. State v. Hardin, 2019 WL
Hardin — 17
shows that Appellee drove “as nearly as practical” entirely within a single
lane, which is not a traffic violation.
The State urges us to adopt the position taken by four judges of
this Court in Leming v. State. 35 Under that position, the “offense” for
failure to maintain a single lane is found in § 542.301 of the
Transportation Code, not in § 545.060, which nevertheless sets out the
elements of the offense. Section 542.301 states that a person commits
an offense “if the person performs an act prohibited or fails to perform
an act required” by the applicable subtitle of the Transportation Code. 36
Under this argument, the failure to maintain a single lane constitutes an
offense because it amounts to the failure to perform an act required by
the Transportation Code, and the movement from a lane in an unsafe
manner also constitutes an independent offense because it amounts to
the performance of a prohibited act. We disagree.
3484428 at *2 (Tex. App.—Corpus Christi 2019). The only issue raised by the State on
discretionary review is whether Officer Alfaro had reasonable suspicion to stop Appellee based
upon her failure to maintain a single lane.
35
493 S.W.3d 552, 561 (Tex. Crim. App. 2016). It is tempting to consider this position a
“plurality” of the Court, but that is not an accurate designation. As we have explained, a
“plurality opinion” is an opinion in a fractured decision that was joined by the highest number
of judges or justices. Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013). But the
portion of the opinion in Leming giving rise to the State’s argument was not adopted by a
plurality of the Court, as four judges on the Court disagreed with that analysis. See Leming,
493 S.W.3d at 568 (Keasler, J. dissenting); see also Leming, 493 S.W.3d at 573 (Newell, J.
dissenting) (“I join Judge Keasler’s dissenting opinion on the issue of the statutory
construction of Section 545.060(a) of the Transportation Code because I, too, do not read
“and” to mean “or.”). On this issue, Leming resulted in a tie with neither of the two opposing
viewpoints gaining a plurality.
36
TEX. TRANSP. CODE § 542.301.
Hardin — 18
This interpretation of the statute assumes what it seeks to prove.
The general offense provision found in § 542.301 speaks to the general
requirement that all violations of the Transportation Code must involve
either an act or a failure to act. It does not set out the elements of any
specific offense. Nor does it clarify how to construe a statute that
characterizes the same conduct as both the failure to perform a required
act and the performance of a prohibited act. For example, § 545.066 of
the Transportation Code describes two separate acts, stopping before
reaching a school bus when the bus is operating a visual signal and
starting again before one of three events occurs, namely the bus
resumes motion, the bus driver signals the operator to proceed, or the
visual sign is no longer actuated. 37 The State’s reading of § 542.301
can apply easily to that statute because it deals with two separate acts. 38
But § 545.060 only deals with one act—moving out of a single marked
lane—even though the statute characterizes that conduct as both an act
and a failure to act. The general offense provision found in § 542.301
does not speak to that type of situation.
37
TEX. TRANSP. CODE § 545.066.
38
This statute is similar to Transportation Code § 545.053, which deals with passing a vehicle
on the left and the moving back to the right safely. TEX. TRANSP. CODE § 545.053. Both §
545.066 and § 545.053 deal with offenses that, by their own terms, cover two separate acts.
Hardin — 19
Given this context, § 542.301 is best understood as a general
provision recognizing that violating a traffic regulation amounts to a
criminal offense regardless of whether the violation flows from an act or
a failure to act. That section does not suggest how to determine
whether a particular Transportation Code section sets out a single
offense, multiple different ways of committing the same offense, or
multiple different offenses. Determining those issues requires
examination of the specific statutes that actually require or proscribe
conduct.
Moreover, this interpretation fails to account for the history of the
statute. The original statutory provision, Article 6701d, §60, was
enacted in 1947 as part Senate Bill 172, a comprehensive set of statutes
regulating traffic. 39 The text of Article 6701d, §60 was originally drafted
as a single sentence:
Sec. 60. Whenever any roadway has been divided into two
(2) or more clearly marked lanes for traffic the following rules
in addition to all others consistent herewith shall apply:
(a) The driver of a vehicle shall drive as nearly as
practical entirely within a single lane and shall not
be moved from such lane until the driver has first
ascertained that such a movement can be made
safely. 40
39
See Act of June 3, 1947, 50th Leg., R.S., ch. 421, § 60, 1947 Tex. Gen. Laws 967, 978,
repealed by Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws
1025, 1870.
40
TEX. REV. CIV. STAT. Article 6701d, § 60(a) (Vernon 1977).
Hardin — 20
In 1995, the Legislature repealed the Revised Civil Statutes
dealing with Traffic Regulations and replaced it with the Transportation
Code. 41 The Transportation Code was enacted as part of the state’s
continuing statutory revision program, which codified the previous
statutes without substantive change. 42 So, even though the statute was
later broken up into two different subsections, the Legislature
specifically declared its intent that this change was cosmetic and not
substantive. Even if we were to assume that the statute was
ambiguous, the statutory history suggests that the Legislature has
always intended that this subsection create only one offense.
Finally, we reject the suggestion that a motorist who drives
between two lanes for an extended period of time could never be subject
to a traffic stop. Each case involving the review of traffic stop depends
upon the unique circumstances of that offense, so it is inappropriate to
suggest how this Court would apply this statute to another and obviously
incomplete set of facts. But even assuming that this hypothetical
behavior does not violate § 545.060, it may provide specific articulable
facts to support reasonable suspicion for violation of another offense.
41
See Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025,
1025.
42
TEX. TRANSP. CODE § 1.001.
Hardin — 21
Indeed, we held in Leming that the officer in that case had
reasonable suspicion to stop the defendant for driving while intoxicated
regardless of whether he failed to maintain a single lane. 43 Notably, the
defendant in Leming was seen driving slowly and swerving radically
within his own lane. He also crossed the center stripe of the road
moving partially into another lane of traffic. However, the officers
testified that they did not stop the defendant immediately because it
would have created a safety concern. We held under those
circumstances that these facts gave rise to reasonable suspicion for the
offense of DWI. 44 Thus, even under circumstances in which a motorist
crosses from one lane into another without necessarily raising a safety
concern, that behavior can still be considered along with other facts to
provide reasonable suspicion to stop for suspicion of driving while
intoxicated. Our interpretation of § 545.060 in this case should not be
misconstrued or overread to suggest that a traffic stop is always
unreasonable in every instance in which a driver weaves in and out of a
single lane. 45
43
Leming, 493 S.W.3d at 563-64.
44
Id. at 565.
45
In her concurring opinion, Judge Slaughter observes that Officer Alfaro’s stop could have
been justified under a theory that he acted under a reasonable mistake regarding unsettled
law. At least one court of appeals has reached a similar conclusion post-Leming. See, e.g.,
Dugar v. State, 629 S.W.3d 494, 499 (Tex. App.—Beaumont 2021, pet. ref’d.). We take no
issue with that holding. However, as the concurring opinion correctly observes, the State
Hardin — 22
Conclusion
Based on our review of the record and our precedent, we conclude
that the detaining officer did not have reasonable suspicion to stop
Appellee for violating Transportation Code Section 545.060.
Accordingly, the trial court did not err in granting Appellee’s motion to
suppress. We affirm the decision of the court of appeals.
FILED: November 2, 2022
PUBLISH
chose not to make that argument in this case. Therefore, we cannot reverse the trial court’s
holding on that theory. State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998).