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OFTEXAS
March 4, 1958
dL-6.B
Mr. Jimmy Morris Opinion No. WW-381
County Attorney
Navarro County R,e: The authority of an officer ar-
Corsicana, Texas resting a person for violation
of the anti-racing statute, arti-
cle 795, P-C., to take such per-
sons before a magistrate im-
mediately, despite the demand
of such person that he be re-
leased upon his signing a prom-
ise to appear later before a des-
ignated court at a specified time
Dear Mr. Morris: and place.
This is in response to your request for an opinion with re-
gard to the authority of an arresting officer to take a person arrested for
violation of the anti-racing statute, Article 795, Vernon’s Annotated Penal
Code, before a magistrate immediately, despite the demand of such person
that he be released upon his signing a written promise to appear later be-
fore a designated court at a specified time and place.
Article 795, Vernon’s Annotated Penal Code, reads as foll.ows:
“No race or contest for speed between mot,or ve
hicles of any kind shall be held upon any publi,c highway.
Any person violating this article shall befinednot.exceed,-
ing one hundred dollars. Acts 1917, p.480, Acts 3rd C.S.
1917, p. 70,”
For convenience, this statute will be referred to in this opinion as the “anti-
racing” statute.
Article 792, Vernon’s AnnotatedPenal Code, reads as foi?ows:
“In case of any person arrested for violation of the
preceding articles relating to speed of vehicles, unless such
person so arrested shall demand that he be taken forthwith
Mr. Jimmy Morris, page 2 (WW-381)
before a court of competent jurisdiction for an immediat,e
hearing, the arresting officer shall take the license num-
ber, name and make of the car, the name and address of
the operator or driver thereof, and notify such operator
or driver in writing to appear before a designated court,
of competent jurisdiction at a time and place to be speci-
fied in such written notice at least five days subsequent
to the date thereof, and upon the promise in writing of such
person to appear at such time and place, such officer. shall
forthwith release such person from custody. Any person
wilfully violating such promise, regardless of the disposi-
tion of the charge upon which he was originally arrested,
shall be fined not less than five nor more than two hun-
dred dollars. Acts.1923, p. 333.”
This statute will be referred to in this opinion as the “Violation of Prom,-
ise” statute.
Article 827a, sec. 8, Vernon!6 Annotated Penal Cod?, reads
in part as follows:
“Sec. 8, Subsection 1. (a) No person shall drive
a vehicle on a highway at a speed greater than is reason,-
able and prudent under the conditi,ons then existmg, ~ . .
or when special hazard exists. . ~
“(b) Where no special hazard exi,sts that requires
a lower speed for compliance with subsectlon l(a) of this
Section, . . . any speed in excess of the liml,t:s specified III
this subsection or established as hereinafter authorize,d
shall be prima facie evidence that the speed is not reason-
able or prudent and that it is unlawful:
!I
. . .
“(2) Sixty (60) miles per hour in the daytime and
fifty-five (55) miles per hour during the nighttime in !,oc,a
tions other than business or residence districts . . .
II . . As amended Acts 1951, 52nd Leg., p. 589,
ch. 346, sec. 1.”
This statute will be referred to in this opinion as the “Speeding” statute.
Mr. Jimmy Morris, page 3 (WW-381)
The articles relating to each of three above cited stat-
utes were first enacted in 1917 by the 35th Legislature, Regular Ses-
sion, Chapter 207, pages 474-485. They appeared in the Act in the fol-’
lowing order:
Section 19. Anti-racing statute
Section 20. Speeding statute
Section 21. Violation of Promise statute
Section 21 (Violation of Promise) reads in part as ~fol-
lows:
“In the case of any person arrested forviola-
tion of the provisions of the last preceding section of
this Act, . . . .‘I (Emphasis added)
This obviously referred to Section 20, the speeding statute, only.
These three statutes (speeding; violation of promise, and
anti-racing) were codified in Chapter One, Title 13, of the Revised Penal
Code of Texas, 1925, The speeding statute was broken down into three
component parts:
Article 789 - Speeding
Article 790 - Reckless Driving
Article 79,l - Exempting emergency vehicles
The Violation of Promise Statute became Article 792, and
the Anti-racing Statute became Article 795.
Since, the speeding statute was codified into three articles:
789,~ 790, and 791, the Revised Penal Code of Texas, 1925, Article 792
(Violation of Promise statute) was caused to read in part as follows:
“In case of any person arrested for violation of
the preceding articles relating to speed of vehicles . . .‘I
(Emphasis added)
It will be noted that in the 1925 codification, the Legislature placed Ar-
ticle 795 (Anti-racing statute) after the Violation of Promise statute so
that Article 792 would not apply to the Anti-racing statute.
.
Mr. Jimmy Morris, page 4 (WW-381)
Without tracing the entire legislative history of the speed-
ing statute, it is sufficient to state that it has been amended a number of
times since the 1925 codification, and is now found in Vernon’s Annotated
Penal Code as Article 827a, sec. 8.
In 1947, the 50th Legislature enacted the Uniform Act Regu-
lating Traffic on Highways, Article 6701d, Vernon’s Annotated Civil Stat-
utes. Section 148 of this Act makes provision for officers to release per-
sons charged with traffic violations upon their promise to appear later be-
fore a court of competent jurisdiction at a specified time and place. Set,-
tion 148, Article 6701d, V.A.C.S. reads in part as follows:
IV . . . the offense of speeding shall be the only
offense making mandatory the issuance of a written
notice to appear in court, . . .‘I
This is an obvious reference to Article 827a, sec. 8, Vernon’s Annotated
Penal Code. It is significant that the ban on racing on public highways is
not mentioned in Article 6701d, V.A.C.S.
Section 149, Art. 67Old, V.A.C.S., provides the penalty for
violation of promise to appear; and Section 150, Art. 6701d, V.A.C.S.,
reads as follows:
“The foregoing provisions of this Article shall
govern all police officers in making arrests without a
warrant for violations of this Act, but the procedure
prescribed herein shall not otherwise be exclusive of
any other method prescribed by law for the arrest and
prosecution of a person for an offense of like grade.”
(Emphasis added)
Sec. 148, Art. 6701d, V.A.C.S., was amended in 1953, by
the 53rd Legislature. This amendment allowed the person released on
written promise to appear to have 10 days, instead of 5 days, permitted
the immediate arrest of persons driving out-of-state automobiles, and
declares that any officer violating any provision of this section shaT.1 be
guilty of misconduct in office, and subject to removal from office. Once
again this section makes mandatory the release upon signing a writ.ten
promise to appear, only the offense of speeding.
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Mr. Jimmy Morris, page 5 (WW-381)
You have stated in your letter that you are of the opinion
that Article 792, V.A.P.C., (Violation of Promise statute), does not ap-
ply to Article 795, V.A.P.C. (Anti-racing statute), and we concur with
your view in this matter.
In’construing a statute the intent of the Legislature must
be given effect,
“The language of a statute is presumed to have
been selected and used with care’ and deliberation. . . ,
Where the statutory language is plain and unambiguous,
and expresses a single definite and sensible meaning* it
is conclusively presumed that the Legislature intended ” 8
to convey such meaning. . . .I’ 39 Tex. Jur. p. 244.
From the very beginning, the Legislature has treated the
Violation of Promise statute as applying only to the Statute on speeding.
It~has never been applied to the anti-racing statute. While there are many
annotations cited under the speeding statute, Art. 827a, sec. 8, V.‘A.P.G.,
the anti-racing statute, Art. 795, V.A.P.C., has never been con&rued by
our appellate courts.
The speeding statute and the anti-racing statute are two en-
tirely different laws. One person may violate the speeding laws; it takes
the operators of two or more vehicles to violate the anti-racing statute:
It is conceivable that a person could violate the anti-racing statute with-
out violating the speeding statute, especially if his motor vehicle was un-
able to exceed the maximum allowable speed.
We hold, therefore, that an officer arresting a person for
violation of Article 795, V.A.P.C., (Anti-racing statute), has authority to
take such person immediately before a magistrate, despite the demand of
such person to be released upon signing a promise in writing to appear
later before a court of competent jurisdiction at a specified time and place.
Such person must be charged under Article 795, V.A.P.C., and not under
Article 827a, sec. 8, V.A.P.C. There are suitable forms of complaint
charging a violation of the speeding law in Willson’s Texas Criminals Forms,
6th Edition, but there is no form for a complaint charging a violation of
the anti-racing statute. It will be necessary for the prosecutor or the msg..,
istrate accepting such a complaint to draft a suitable form.
Mr. Jimmy Morris, page 6 (WW-381)
SUMMARY
An officer arresting a person for violation of the
anti-racing statute, Art. 795, P.C., may take such person
before a magistrate immediately, despite the demand of
such person that he be released upon his signing a written
promise to appear later before a designated court at a speci-
fied time and place; but care must be taken to charge under
the anti-racing statute, Art. 795, P.C., and not under the
speeding statute, hart . 827a, Sec. 8, P.C.
APPROVED: Yours very truly,
OPINION COMMITTEE:
WILL WILSON
George P. Blackburn, Attorney General of Texas
Chairman
Ce,cil C. Rotsch
John Reeves By @5 &-k
Houghton Brownlee, Jr. Riley Eugene Fletcher
F. C. Jack Goodman Assistant
Reviewed for the Attorney General
By: W. V. GEPPERT