Hardin, Sheila Jo

In the Court of Criminal
Appeals of Texas
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No. PD-0799-19
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THE STATE OF TEXAS

v.

SHEILA JO HARDIN, Appellee

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On State’s Petition for Discretionary Review
From the Thirteenth Court of Appeals
Nueces County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., and
KEEL, J., joined.

Section 542.301(a) of the Texas Transportation Code provides
that “[a] person commits an offense if the person performs an act
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prohibited or fails to perform an act required by this subtitle.” TEX.
TRANSP. CODE § 542.301(a) (emphasis added). Within the referenced
subtitle, then, is Section 545.060(a) of the Texas Transportation Code,
which contains both a requirement and a prohibition. It reads:
(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.

TEX. TRANSP. CODE § 545.060(a). A plain reading of these statutes
together makes clear that a person commits an offense by violating
either the requirement that the person (a)(1) drive as nearly as practical
entirely within a single lane, or the prohibition that they (a)(2) not move
from the lane when that movement cannot be made safely.
Today, the Court holds otherwise. It concludes instead that a
person does not commit an offense under this provision unless and until
he both (a)(1) fails to drive as nearly as practical entirely within a single
lane, and (a)(2) moves from the lane when that movement cannot be
made safely; in other words, no offense is shown until a driver deviates
from a single lane of traffic in an unsafe manner. See Majority Opinion
at 16 (“[W]e hold that a person only violates [the statute] if the person
fails to maintain a single marked lane of traffic in an unsafe manner.”). 1

1 After being detained on suspicion of the traffic violation at issue in
this case, Appellant was found to be in possession of evidence supporting
charges of fraudulent possession of identifying information and forgery of a
government instrument. Majority Opinion at 3.
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But, as four of our judges recognized in Leming v. State, 493 S.W.3d 552,
557 (Tex. Crim. App. 2016), “[t]here is a problem with this assessment
of the statutory elements[.]”
The Court’s lead opinion in Leming explained it this way:
It seems to discount the requirement that an operator
“drive as nearly as practical entirely within a single lane[.]”
It essentially removes what is now Section (a)(1), requiring
a driver to stay within his dedicated lane of traffic as much
as it is “practical” to do so, entirely from the statute. It
makes it an offense only to ignore the prohibition against
changing lanes when the conditions for changing lanes are
not safe.

Id.
The Court says that any reading of the statute other than its own
ignores the conjunction “and” that separates Subsection (1) from
Subsection (2). See Majority Opinion at 12–13 & n. 29 (citing Antonin
Scalia & Bryan A. Garner, READING LAW 116 (2012), for the proposition
that “and combines items while or creates alternatives”). But Section
545.060(a) does not read like the typical penal code provision that uses
the conjunctive “and” to identify constituent elements of a single offense.
Such a statute is usually structured as follows:
“A) A person commits an offense if the person:

1) . . .,

2) . . ., and

3) . . ..”

The use of the conjunctive “and” in a statute structured in this way
makes it plain, of course, that the various subsections define necessary
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elements of the “offense” referenced in the statutory preamble, all of
which must be proven to establish commission of the offense. They do
not define alternative ways of committing the offense, like the word “or”
would be expected to do in that context.
Section 545.060(a) of the Transportation Code, however, is
structured differently than the typical penal provision. In fact, in and of
itself, it is not a penal provision at all. Its opening phrase says nothing
about committing an offense. Instead, it begins by identifying to whom,
and in what location, it applies: “An operator on a roadway divided into
two or more clearly marked lanes for traffic:”. TEX. TRANSP. CODE §
545.060(a). It then sets out a requirement, in Subsection (1): “shall drive
as nearly as practical entirely within a single lane[.]” Id. And next, in
Subsection (2), it sets out a prohibition: “may not move from the lane
unless that movement can be made safely.” Id.
Thus, Section 545.060(a) sets out both a requirement and a
prohibition—either of which may form the basis for a penal offense
under Section 542.301(a)—the actual penal provision in the
Transportation Code. See TEX. TRANSP. CODE § 542.301(a) (“A person
commits an offense if the person performs an act prohibited or fails to
perform an act required by this subtitle.”) (emphasis added). In this way,
the subsections of Section 545.060(a) themselves independently
establish what constitutes an offense, with each subsection defining a
discretely actionable offense—just as the word “or” might in a more
typical penal provision. If a person driving on a clearly divided roadway
either fails to remain “as nearly as practical within a single lane[,]” or
he “move[s] from” one dedicated lane into another when it is not safe to
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do so, he has committed an offense according to the statutory scheme. 2
That is how the conjunctive “and” works in this statutory context.
The Court says that its construction of the statute is the only one
“that gives effect to both statutory subsections.” Majority Opinion at 13.
It seems to me that the opposite is true. As the lead opinion in Leming
explained, as quoted above, the Court’s interpretation effectively reads
Subsection (a)(1) out of the statute, making the safety of any deviation
from a single lane the lynchpin of a single offense. Otherwise failing to
stay within a dedicated lane, even when it is practical to do so, as
described in Section (a)(1), will make not a bit of difference so long as
the driver does not “move from” that lane in a manner that is unsafe. 3

2 Or, as Judge Richardson explained it in his concurring opinion in
Leming:

The statute provides that a driver “shall drive as nearly as
practical entirely within a single lane,” and a driver “may not
move from the lane unless that movement can be made safely.”
This means that a person could be in violation of that statute if
he or she fails to do either one of the required actions. This
interpretation does not turn the “and” into an “or.” The “and”
means that both are statutory requirements. It is the potential
violation of the statute that incorporates the “or.”

493 S.W.3d at 566 (Richardson, J., concurring).

3 A driver can fail to stay within his dedicated lane without wholly
“mov[ing] from” his lane. It would not be unreasonable to construe the phrase
“move from” to mean a “move from” one lane completely into another: a change
of lanes. Such a reading would nullify the Court’s assumption that the two
subsections of the statute address “the same conduct[.]” Majority Opinion at
13. If Subsection (a)(1) deals with swerving partially outside of a dedicated lane
(or, more precisely, failing to stay “entirely within a single lane”), while
Subsection (a)(2) deals with wholesale lane changes, then the proscribed
conduct is not the same from one subsection to the other, and it then makes
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Still, the Court concludes that there is necessarily an
“interconnectedness” between the two subsections that somehow makes
them elements of the same offense. Id. at 14. But that perceived
“interconnectedness” seems to me to derive solely from the Court’s faulty
understanding of the conjunctive “and” between the subsections of the
statute. I see no other intrinsic source for it.
The Court also claims that my understanding of the statute
“would render subsection (a)(2) meaningless.” 4 Id. at 15. The reason, if
I understand it correctly, is that the Transportation Code already
contains a provision that prohibits drivers from “mov[ing] right or left
on a roadway, unless movement can be made safely.” Id. at 15. (citing
TEX. TRANSP. CODE § 545.103). What I believe the Court is suggesting
here is that to read Subsection 545.060(a)(2) to identify a discrete
offense, apart from Subsection 545.060(a)(1), would create an offense
that would be redundant of the prohibition already set out in Section

sense for the Legislature to include a “safety” component to the latter but not
necessarily to the former.
In any event, I do not think that the “safety” component of Subsection
(a)(2) can sensibly be read to apply to the failure-to-stay-wholly-within-a-
dedicated-lane requirement of Subsection (a)(1) under any circumstances. But
that is what the Court’s construction of the statute accomplishes today: A
driver who fails to remain wholly within his dedicated lane will nevertheless
escape prosecution under Section 545.060(a), at least so long as that conduct
does not take the form of wholly “mov[ing] from” his lane, and then doing so
unsafely. But a driver who “move[s] from” his lane unsafely may always be
prosecuted, without reference to the requirement to stay wholly within his
dedicated lane so long as it is practical. In this way, the Court’s reading of the
statute eviscerates Subsection (a)(1).

4 In fact, the Court’s own reading of the statute renders Subsection
(a)(1) meaningless. See note 3, ante.
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545.103: moving right or left on a roadway when it is unsafe to do so.
I disagree, however, that Section 545.103 and Subsection
545.060(a)(2) are so co-extensive as to render Subsection 545.060(a)(2)
wholly superfluous. Section 545.103 requires safe conditions with
respect to any lateral movement on any roadway. Subsection
545.060(a)(2) prohibits any “move from” one dedicated lane into another
on a clearly divided road. Depending on how we construe the breadth of
the phrase “move from,” Subsection 545.060(a)(2) may only apply to
unsafe lane changes, 5 whereas the former would plainly apply to any
unsafe lateral movement on any category of roadway. While it might be
appropriate to read the two provisions in pari materia (especially if their
punishment provisions differed, which they do not), 6 I perceive no
redundancy that necessarily undermines my understanding that
Subsection (a)(2) of Section 545.060 has a discrete effect from Subsection
(a)(1). The Court’s concern in this regard is overinflated. 7

5 See note 3, ante.

6 See Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008)
(observing that “a defendant has a due process right to be prosecuted under a
‘special’ statute that is in pari materia with a broader statute when these
statutes irreconcilably conflict.”) (quoting Ex parte Smith, 185 S.W.3d 887, 893
(Tex. Crim. App. 2006)). Section 542.301(b) of the Transportation Code
provides that, “[e]xcept as otherwise provided, an offense under this subtitle is
a misdemeanor.” TEX. TRANSP. CODE § 542.301(b). Neither Section 545.060(a)
nor Section 545.103 provides for a punishment that is otherwise than that
provided by Section 542.301(b).

7In any event, any redundancy between the two statutes would not be
saved by the Court’s present construction of Section 545.060(a)—since it has
rendered Subsection (a)(1) of that Section superfluous. All that is left is
Subsection (a)(2), which is the very provision that the Court now maintains is
redundant of Section 545.103 of the Transportation Code.
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Finally, the Court argues that the statute’s history supports its
conclusion that Section 545.060(a) only sets out a single offense.
Majority Opinion at 19–20. The Court first observes that the statutory
predecessor to Section 545.060(a) was not divided into subsections, and
the full text was contained within “a single sentence.” Id. at 19 (citing
former Article 6701d, § 60). Of course, though now divided into
subsections, Section 545.060(a) is also still comprised only of a single
sentence. That a “single sentence” is involved proves nothing.
Continuing its “statutory history” argument, the Court points out
that the legislative codification of the statute as part of its “statutory
revision program” was not supposed to effectuate substantive changes
but was “cosmetic” only. Id. at 20. From this the Court concludes that
“the statutory history suggests that the legislature has always intended
that this subsection create only one offense.” Id. Missing from this final
argument is any indication of what the predecessor statute—Article
9701d, Section 60—was authoritatively construed to mean in the past.
As was pointed out in the part of Leming that spoke for four members of
the Court, “[t]his Court has yet to construe this statutory language.” 493
S.W.3d at 557.
While there were at that time intermediate courts of appeals
opinions on the subject, id. at 557 & n.6, prior to Leming, this Court had
never construed the statute, in either its present or its former versions.
That the codification of Article 9701d, Section 60, was not meant to
effectuate a substantive change means nothing in the absence of binding
authority construing that former language in the first place. Short of
Leming, the proper construction of Section 545.060(a) of the
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Transportation Code remains today, as far as this Court is concerned, a
question of first impression. We have yet to construe the “single
sentence” at issue in this case as it appeared in either current Section
545.060(a) of the Transportation Code, or former Section 60 of Article
9701d. Ultimately, nothing about the statute’s history sheds the kind of
light the Court suggests.
The Court’s approach is also likely to produce problems with
interpretation of other parts of the Transportation Code that are written
similarly to Section 545.060(a). For example, Section 545.066(a)
(Passing a School Bus; Offense) is structured almost identically to
Section 545.060(a). Section 545.066(a) contains both a requirement and
a prohibition, numbered as subsections (a)(1) and (a)(2), respectively,
with each subsection separated by the word “and”. Specifically, Section
545.066(a) provides:
(a) An operator on a highway, when approaching from
either direction a school bus stopped on the highway
to receive or discharge a student:

(1) shall stop before reaching the school bus when
the bus is operating a visual signal as required
by Section 547.701 (Additional Equipment
Requirements for School Buses and Other
Buses Used to Transport Schoolchildren); and

(2) may not proceed until:

(A) the school bus resumes motion;

(B) the operator is signaled by the bus
driver to proceed; or

(C) the visual signal is no longer actuated.
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TEX. TRANSP. CODE § 545.066(a). The Court’s decision today may lead
some lower courts to conclude that subsections (1) and (2) of Section
545.066 are “interconnected,” and that since they are paired with the
word “and,” an offense will not have been committed under Section
545.066 unless an operator both fails to stop before reaching a bus and
then proceeds before the bus resumes motion, etc.
But that interpretation will lead to the absurd result that, as long
as an operator comes to a complete stop, proceeding in violation of
subsection (2) cannot be an offense. After all, a court relying on this
Court’s opinion today might say that, because the requirement and the
prohibition are connected by the word “and,” that must mean that both
must be proved before it can be said that an offense has been committed.
And this is only one example of a similar statute found in the
Transportation Code. There are many others that may be misconstrued
by reliance on the Court’s opinion in this case. See, e.g., TEX. TRANSP.
CODE § 545.253(a) (Busses to Stop at All Railroad Crossings); id. §
545.2535(a) (School Buses to Stop at All Railroad Crossings); id. §
545.254(a) (Vehicles Carrying Explosive Substances or Flammable
Liquids); id. § 545.255(c) (Moving Heavy Equipment at Railroad Grade
Crossing); id. § 545.2555(b) (Report and Investigation of Certain
Railroad Crossing Violations); id. § 545.256 (Emerging From an Alley,
Driveway, or Building); id. § 545.351(b) (Maximum Speed
Requirement).
I would adhere to the view of the four judges who joined Part II of
the opinion announcing the Court’s judgment in Leming, non-binding
though Part II might be. Because the Court today does not, for the
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reasons outlined above, I respectfully dissent.

FILED: November 2, 2022
PUBLISH