Vicknair v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Appellant pled guilty before the court, pursuant to a plea bargain, to possession of more than five and less than fifty pounds of marihuana. The court assessed five years. The First Court of Appeals (Houston) reversed the conviction, holding that the search of appellant’s automobile resulted from an illegal stop. Vicknair v. State, 670 S.W.2d 286 (Tex.App. — Houston [1st Dist.] 1983). We granted the State’s petition for discretionary review to examine this holding.

A hearing was held on appellant’s motion to suppress. Houston Police Officer D.W. Illingworth testified that on the evening of November 27, 1981, he was on patrol with his partner. Illingworth testified concerning the stop of appellant’s vehicle as follows:

“Q. What was it about this vehicle that first directed you to it?
“A. We observed an equipment violation on that vehicle.
“Q. Was this vehicle being driven on a public roadway?
“A. Yes.
“Q. What was the nature of the equipment violation that you observed?
“A. It was a defective taillight with a cracked lens and white light showing to the rear of the vehicle while moving.”

Illingworth and his partner then stopped the vehicle. Appellant was the driver. Ill-ingworth asked to see appellant’s driver’s license. Appellant stated “that his license had been revoked in another state.” Illing-worth asked again if appellant had a Texas driver’s license. When appellant replied that he had not, and was unable to produce a driver’s license, Illingworth placed him under arrest. Subsequent events led to the discovery of a quantity of marihuana in plain view in appellant’s car.

On cross-examination, Illingworth testified further concerning his reason for stopping appellant, as follows:

“Q. And what was that violation?
“A. Cracked taillight lens.
“Q. And that is a violation of what law?
“A. I believe Vernon’s Civil Statutes of Texas Moving Motor Vehicle Laws.
“Q. Can you tell me what law that is?
“A. The only thing I could say, sir, was to give you the title used for the charge itself on the citation.
“Q. What is that?
“A. The title would be defective rear lights, cracked taillight lens.
“Q. That’s not having a taillight that illuminates a red reflection?
“A. Excuse me, sir?
“Q. Is that what you’re talking about, not having a taillight that emits something red?
“A. What I’m referring to, sir, is a taillight lens that has been cracked to the extent you could observe white light coming through the rear.
“Q. That is a violation of the law?
“A. Yes. I was instructed by the department and in my training to issue a citation for that particular violation.
“Q. And that’s a cracked taillight lens or having a defective taillight?
“A. Defective taillight, cracked taillight lens.
“Q. Was the red light illuminating from the taillight?
“A. I would say yes. There was a red light, but it was a portion of it that had white light as well.”

The Court of Appeals wrote: “Both appellant and the State agree that the violation the officer was describing was that in *182Tex.Rev.Civ.Stat.Ann. art. 6701d, Sec. Ill (Vernon 1977) ...”

The Court of Appeals held that a cracked taillight emitting white light is not a violation of Art. 6701d, Sec. Ill,1 supra, because the statute requires only that a plainly visible red light be emitted and does not prohibit the emission of light of another color. Since the evidence established that appellant’s taillight did emit a visible red light at all times, the Court of Appeals ruled the initial stop of appellant invalid and that the fruits thereof should have been suppressed.

We need not reach the issue of whether the Court of Appeals’ interpretation of Art. 6701d, Sec. Ill, supra, is correct. We will focus on a separate part of Art. 6701d entitled ARTICLE XV — INSPECTION OF VEHICLES.

Section 140(a) provides, in pertinent part: “Every motor vehicle ... registered in this state and operated on the highways of this state, shall have the ... lighting equipment ... inspected at state-appointed inspection stations or by State Inspectors as hereinafter provided.
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“(b) If such inspection discloses the necessity for adjustments,2 corrections, or repairs, the vehicle shall be adjusted, corrected, or repaired before a certificate is issued as hereinafter provided....”
Section 141 provides, in pertinent part: “(a) ... The Department [of Public Safety] is authorized to furnish instructions to, and to supervise official inspection stations and mechanics for inspection of motor vehicles ... for the proper and safe performance of the required items of inspection....
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“(d) No certificate of inspection shall be issued by any inspector or inspection station until the vehicle has been inspected and found to be in proper and safe condition and to comply with the uniform standards of safety, inspection rules and regulations, and laws of this State.”
Section 142(a) provides, in pertinent part: “The Public Safety Commission shall establish uniform standards of safety whenever applicable with respect to items to be inspected as provided by Section 140 of this Act and shall list those items to be inspected in conformity with these standards established as provided by law. The list of items to be inspected and uniform standards of safety shall be posted in every official inspection station. Every vehicle inspected shall conform in all respects to the uniform standards of safety and the list of items to *183be inspected established pursuant to this Section."

The Administrative Code contains the “list of items to be inspected” in the form of a chart. We set out the text appearing adjacent to the chart in the Administrative Code:

“Sec. 23.41 Inspection Items.
“(a) Section 1. The attached chart, as amended in January, 1982, lists the vehicle equipment required to he inspected according to the classification of the vehicle.
“(b) Section 2. The procedures and requirements for performing the inspection are contained in the Rules and Regulations Manual for Official Vehicle Inspection Stations and Certified Inspectors. “(c) Section 3. The chart is contained in the Rules and Regulations Manual which is on file in the county clerk’s office in every county in the state and in every vehicle inspection station.”

Tex. Public Safety Comm’n, 37 Tex.Admin. Code Sec. 23.41 (November 1977) (Inspection Items, Procedures, and Requirements).

We now set out the pertinent provisions of the Rules and Regulations for Official Vehicle Inspection Stations and Certified Inspectors:

“The rules and regulations contained in the following pages of this manual are promulgated under the authority of Article XV, Revised Civil Statutes of Texas, 6701d, the Uniform Act Regulating Traffic on Highways.
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“SPECIAL REQUIREMENTS AS TO LIGHTING DEVICES AND REFLECTORS FOR PASSENGER CARS ...
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“Any lighting device, lens, and/or reflector used on a vehicle must meet standards adopted by the Texas Department of Public Safety for that particular use.
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“TAIL LAMP
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[Art. 6701d, Sec. Ill is set out]
“INSPECTION PROCEDURE: A crack is defined as ‘any break that allows moisture to penetrate the interior of the lamp unit or allows a white light to be emitted to the rear of any vehicle.’
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“INSPECT FOR AND REJECT IF:
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“3. Lamp does not completely emit a red light plainly visible 1,000 feet to the rear.
“4. Lamp lens is cracked, broken, painted, missing, discolored, or does not fit properly.”

Section 141(d) of Art. 6701d, supra, provides in pertinent part:

“No person shall drive or move on any highway any motor vehicle ... unless the equipment upon any and every said vehicle is in good working order and adjustment as required in this Act and said vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person or property.”
Section 140(g) provides in pertinent part: “Any person operating a vehicle on the highways of this State ... in violation of the provisions of this Act or without displaying a valid inspection certificate or having equipment which does not comply with the provisions of Article XIV of this Act is guilty of a misdemeanor and on conviction shall be punished as provided in Section 143 of this Act.”

We summarize the requirements of the statute. The lighting equipment of every motor vehicle must be inspected. (Sec. 140(a)). If the inspection discloses the necessity for adjustments or repairs, the equipment must be adjusted or repaired before a certificate of inspection may issue. (Sec. 140(b)). By what criteria is an inspector guided in his determination of the necessity for adjustments or repairs? The Department is authorized to furnish instructions to the inspector for the inspection of motor vehicles “for the proper and safe performance of the required items of inspection.” (Sec. 141(a)). The inspector must “inspect for and reject if” the tail lamp does not completely emit a red light or if the lens is cracked. (Rules and Regulations for Official Vehicle Inspection Sta*184tions and Certified Inspectors). The Act commands that no person shall drive a motor vehicle on any highway unless its equipment is “in good working order and adjustment as required” in the Act. (Sec. 141(d)). Is a cracked taillight lens emitting white light “in good working order and adjustment” as required in the Act? Not by the criteria promulgated by the Department pursuant to authority conferred in Article XV of the Act. According to those criteria, a cracked taillight lens emitting white light “discloses the necessity for adjustment [] ... or repair [ ].” (Rules and Regulations, etc.; Sec. 140(b)).

The only remaining issue is whether the criteria of good working order and adjustment established by the Department under authority of Article XV of the Act constitute the criteria of what good working order and adjustment are “as required in th[e] Act” (Sec. 141(d)). Put another way, can equipment unable to pass inspection nevertheless be in “good working order and adjustment” as required in the Act? In Article XV of Art. 6701d, supra, the legislature has authorized the Public Safety Commission and the Department of Public Safety to promulgate standards of safety and performance for all equipment subject to inspection on motor vehicles. We hold that the criteria promulgated by the Department under authority of the Act constitute the criteria of good working order and adjustment as required in the Act.

A person who drives on any highway a motor vehicle with equipment that is not in “good working order and adjustment” as required in the Act violates a prohibition of the Act. Sec. 141(d). Any person operating a vehicle on the highways of this State in violation of the provisions of the Act is guilty of a misdemeanor. Sec. 140(g). Section 153 of Art. 6701d provides: “Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act.”

Officer Illingworth had probable cause to stop appellant’s vehicle and statutory authority to stop it without a warrant.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of appellant’s other grounds of error.

. Sections 109 and 111 form a part of Art. 6701d, supra, entitled ARTICLE XIV — EQUIPMENT, and provide as follows:

"Sec. 109.
"(a) Every vehicle upon a highway within this State at any time from a half hour after sunset to a half hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of one thousand (1,000) feet ahead shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles, and further that stop lights, turn signals and other signalling devices shall be lighted as prescribed for the use of such devices.
"(b) Whenever requirement is hereinafter declared as to distance from which certain lamps and devices shall render objects visible or within which such lamps or devices shall be visible, said provisions shall apply during the times stated in Subsection (a) of this section in respect to a vehicle without load when upon a straight, level, unlighted highway under normal atmospheric conditions unless a different time or condition is expressly stated.
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"Sec. 111.
"(a) After January 1, 1972, every motor vehicle, trailer, semitrailer and pole trailer, and any other vehicle which is being drawn at the end of a combination of vehicles, shall be equipped with at least two (2) tail lamps mounted on the rear which when lighted as required in Section 109, shall emit a red light plainly visible from a distance of one thousand (1,000) feet to the rear, except that passenger cars and trucks manufactured or assembled prior to model year 1960 shall have at least one (1) tail lamp ...”

. All emphasis added by the author of this opinion.