State v. Hardin

Full title: THE STATE OF TEXAS, Appellant v. SHEILA JO HARDIN

Court: Court of Criminal Appeals of Texas

Date published: Nov 2, 2022

No. PD-0799-19 (Tex. Crim. App. Nov. 2, 2022)

Opinion

PD-0799-19

11-02-2022

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 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 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 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

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.

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).

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.

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.²We 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

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).

Reasonable Suspicion

A warrantless traffic stop is a Fourth Amendment seizure that is analogous to temporary detention; thus, it must be justified by 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

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).

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

11 Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010).

Statutory Construction

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.¹⁶The end goal is interpreting the text of the statute.¹⁷

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.").

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, 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

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).

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

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).

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

25 Tex. Transp. Code § 545.060(a).

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 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.

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").

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.").

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 late "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.

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 punishment" the word "and" signals that a particular punishment must meet both standards to fall within the constitutional prohibition.³¹

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.

31 Id.

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 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, 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.

32 Kolender v. Lawson, 461 U.S. 352, 357 (1983).

Further, reading the subsections independently of each other would renders 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.³³Reading the two statutory subsections as interconnected and dependent 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.

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.

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 shows that Appellee drove "as nearly as practical" entirely within a single lane, which is not a traffic violation.

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 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.

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.³⁶Under 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.

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.

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.³⁸But § 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.

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:

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.

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

40 Tex. Rev. Civ. Stat. Article 6701d, § 60(a) (Vernon 1977).

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.

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.

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.

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 postLeming. 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 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).

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.

CONCURRING OPINION

Slaughter, J., filed a concurring opinion.

I agree with the Court's statutory interpretation of Texas Transportation Code Section 545.060(a) and its ultimate conclusion upholding the trial court's ruling granting Appellee's motion to suppress. But, I write separately to observe that this situation appears to be a classic case of reasonable mistake of law by the officer who pulled Appellee over. See Heien v. North Carolina, 574 U.S. 54 (2014) (holding that officer's reasonable but mistaken understanding of traffic law could nevertheless give rise to reasonable suspicion to justify traffic stop). Here, the officer's mistaken interpretation of the law was entirely reasonable in view of the nuanced statutory language and the conflicting caselaw from this Court and the intermediate courts of appeals interpreting it. Thus, had the State raised the mistake-of-law issue in the trial court, it appears that the court would have erred by granting Appellee's motion over that argument. Nevertheless, the record reflects that the State did not raise any such argument in the trial court, instead urging only that the officer's understanding of Transportation Code Section 545.060(a) was in fact correct. Because the State did not raise any alternative argument based on mistake of law, this Court cannot now reverse the trial court's ruling on a basis not presented to it. See State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998). Therefore, being presented with no basis to reverse, I join the Court's opinion and write separately only to note that the State could have successfully raised mistake of law.

I. Heien v. North Carolina and Reasonable Mistakes of Law

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. Warrantless traffic stops are a form of seizure and are permissible if supported by reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). Reasonable suspicion is a totality-of-the-circumstances determination and is found to exist when the officer has specific, articulable facts that, when combined with rational inferences, would lead the officer to reasonably believe that an offense has been, or is about to be, committed. Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005).

In Heien v. North Carolina, the Supreme Court for the first time expressly recognized that an officer's reasonable mistake of law (and not just a reasonable mistake of fact) may give rise to reasonable suspicion justifying a temporary investigative detention. 574 U.S. at 57. In Heien, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all that the law required. Id.^[1] The Supreme Court ultimately held that the officer's mistake about the meaning of the brake-light law was reasonable, such that the stop was lawful under the Fourth Amendment. Id. In explaining its reasoning, the Court first observed that the "ultimate touchstone of the Fourth Amendment is reasonableness." Id. at 60. It continued, "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community's protection.'" Id. at 60-61 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). Recognizing that the Court had already held that searches and seizures based on mistakes of fact can be reasonable, it further observed that the limiting principle of that rule is that such "mistakes must be those of reasonable men." Id. at 61 (quoting Brinegar, 338 U.S. at 176). The Court then extended this principle to situations involving reasonable mistakes of law, stating:

[1] The law at issue in Heien provided that a car must be "equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps." N.C. Gen. Stat. Ann. § 20-129(g) (2007).

But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer's understanding of the facts and his

understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: The facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Id. Applying these principles to Heien's case, the Court had "little difficulty concluding that the officer's error of law was reasonable" under those circumstances. Id. at 67. It examined the pertinent statutory language and observed that the statute was not entirely clear with respect to whether one or two brake lights was required. Id. at 68. "It was thus objectively reasonable for an officer in Sergeant Darisse's position to think that Heien's faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop." Id. ^[2]

[2] I recognize that, unlike the present situation, the Supreme Court also considered that the provision at issue had "never been previously construed by North Carolina's appellate courts." Heien, 574 U.S. at 68. But the Court did not suggest that this was a condition precedent to applicability of the mistake-of-law doctrine. Instead, this was but one factor taken into account in examining the overall reasonableness of the officer's mistake. Further, as discussed in the next section, though the statute at issue here had been construed by several appellate courts, those interpretations were not all in agreement. Thus, before today's holding, the caselaw has been in a state of conflict on the meaning of this statutory language.

II. The officer's mistaken understanding of Transportation Code Section 545.060(a) was reasonable.

Applying the Supreme Court's reasoning in Heien to the situation at hand, the officer's mistaken understanding of Transportation Code Section 545.060(a) was entirely reasonable for Fourth Amendment purposes. The statute provides, in relevant part, that:

(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). The Court's opinion concludes that this language means that a driver may lawfully briefly leave her lane of traffic, so long as doing so is not unsafe. But, as shown by the competing dissenting opinions in this case, reasonable minds can disagree on the meaning of the statutory terms. See generally, dissenting opinions of Keller, P.J., and Yeary, J. Thus, it is not implausible or unreasonable to argue that failing to "drive as nearly as practical entirely within a single lane" constitutes a violation of the statute, regardless of whether such action is in any way unsafe. Indeed, in this Court's plurality opinion in Leming v. State, four judges agreed with that view of the statutory language. 493 S.W.3d 552, 559-60 (Tex. Crim. App. 2016) (plurality op.).^[3] Yet, prior to Leming, several intermediate appellate courts had reached the opposite conclusion and interpreted the statute in the manner adopted by this Court's opinion today.^[4] Thus, the existence of these competing interpretations of the statutory language demonstrates that even a well-informed officer acting at the time of Appellee's traffic stop could have been reasonably mistaken as to whether her conduct constituted a violation of the law.

[3] Four judges, however, disagreed, joining two dissenting opinions. See Leming, 493 S.W.3d at 566 (Keasler, J., dissenting); id. at 573 (Newell, J., dissenting).

[4] See State v. Houghton, 384 S.W.3d 441 (Tex. App.-Fort Worth 2012, no pet.) (holding Section 545.060(a) to only be violated when a person drifted out of his or her lane in an unsafe manner); State v. Cerny, 28 S.W.3d 796 (Tex. App.-Corpus Christi-Edinburg 2000, no pet.) (same); State v. Arriaga, 5 S.W.3d 804 (Tex. App.-San Antonio 1999, pet. ref'd) (same); Hernandez v. State, 983 S.W.2d 867 (Tex. App.-Austin 1998, pet. ref'd) (same).

While this Court has not previously had the opportunity to consider whether an officer's mistaken interpretation of Transportation Code Section 545.060(a) may constitute a reasonable mistake of law satisfying Fourth Amendment concerns, the United States Fifth Circuit Court of Appeals has recently considered such a case and held that no Fourth Amendment violation occurred. See United States v. Valenzuela-Godinez, 816 Fed.Appx. 914 (5th Cir. 2020) (per curiam). In that case, a police officer followed a driver for several miles and observed his vehicle "veer over the fog line several times." Id. at 915. The officer initiated a traffic stop based on his understanding of Section 545.060(a). Id. at 916. During the stop, officers discovered cocaine underneath the back seat. Id. In upholding the denial of the motion to suppress based on the officer's reasonable misunderstanding of the law, the Fifth Circuit noted that the disagreement between Texas appellate courts and the plurality opinion in Leming supported a conclusion that the officer's understanding, while mistaken, was reasonable. Id. at 918 ("In light of the statute's ambiguous text, coupled with the clear divide among Texas courts over its meaning, we hold that [the officer's] belief that Valenzuela-Godinez broke the law by failing to maintain a single lane of traffic, even if mistaken, was objectively reasonable."). Other Fifth Circuit decisions have also endorsed the applicability of mistake of law under similar scenarios involving Section 545.060(a). See United States v. Cedillo, 855 Fed.Appx. 954 (5th Cir. 2021) (per curiam); United States v. Neal, 777 Fed.Appx. 776, 776-77 (5th Cir. 2019) (per curiam) ("[A]ny belief by officers that [Section] 545.060(a) required only failure to maintain a lane (and not, in addition, unsafe movement), even if mistaken, was objectively reasonable.").

III. The State failed to raise mistake of law in the trial court, such that it cannot now rely on that theory to support reversal of the trial court's ruling.

Notwithstanding the foregoing analysis, the State did not raise the issue of mistake of law in the trial court. Therefore, this Court may not now rely on that theory as a basis for reversing the trial court's suppression ruling here. That is because a reviewing court generally cannot reverse a trial court's ruling on grounds not presented to the trial court when reviewing a decision on a motion to suppress. See Mercado, 972 S.W.2d at 75; see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (noting that "appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised"). Here, it does not appear from the record that the State ever advanced mistake of law as an alternative theory to justify the reasonableness of the officer's conduct. There was only a brief statement during the motion to suppress hearing where the State argued, in the middle of its closing, that:

. . . knowing that he [the officer] was looking for something to stop [her] for, in his mind what was important in his report was the immediate cause that he was stopping [her] for, which was - he believed it was a violation for [her] to swerve into that lane and come back. Whether it is or isn't, that was what he believed was the immediate cause for the stop. And that's how he wrote his report.

This argument potentially alludes to the fact that the officer did not have to be correct about the law, so long as any mistake was reasonable. But this argument was too implicitly stated to plausibly raise a mistake-of-law issue here. Indeed, there was never any explicit argument regarding mistake of law, and neither the trial judge nor opposing counsel addressed nor acknowledged the State's brief allusion to the officer's understanding of the law, whether right or wrong. Even now on discretionary review, the State does not argue in its brief to this Court that mistake of law should apply or that it should even be permitted at this juncture to argue that it does.

Thus, recognizing that mistake of law was not properly raised in this case, I agree with the Court's implicit determination that, although apparently meritorious, that argument cannot now serve as a basis to reverse the trial court's suppression ruling. With these comments, I join the Court's opinion upholding the trial court's suppression ruling.

Keller, P.J., filed a dissenting opinion in which Yeary and Keel, JJ., joined.

Is it legal for a car to straddle a lane for ten minutes, with each half of the car in a different lane, as long as doing so is not unsafe? Under the Court's opinion, the answer is "yes," but under the statute the answer is clearly "no."

Section 545.060 of the Transportation Code provides:

(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.

Because subsections (1) and (2) are connected by an "and," a driver is required to follow both subsections. Failure to comply with either one of the subsections constitutes a failure to comply with the statute. Under the plain language of Subsection (1), then, the driver must drive as nearly as practical entirely within a single lane, even if it would be safe not to do so.

The Court contends that the statute's use of the conjunctive word "and" means that an offense occurs only if both subsections are violated, but the Court has it backwards. This statute does not by itself create a criminal offense. Like most of the "Rules of the Road" provisions of the Transportation Code, it imposes requirements upon drivers, and a different statute provides that a failure to comply with one of the "Rules of the Road" constitutes a criminal offense.^[1] For a statute that directly creates an offense, the use of the word "and" would ordinarily suggest that all of the joined elements must be committed before there is an offense. For example, a person commits aggravated robbery if he commits robbery "and" he causes serious bodily injury.^[2] If a person fails to commit one element, he has not violated the statute. But for a statute that imposes requirements, the use of the word "and" would ordinarily suggest that the statute has been violated if a person fails to commit even one of the joined requirements. For example, a statute requires the operator of a vehicle involved in an accident resulting in injury, death, or property damage to:

[1] 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.").

[2] Tex. Penal Code § 29.03.

(1) give the operator's name and address, the registration number of the vehicle the operator was driving, and the name of the operator's motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle

involved in the collision;

(2) if requested and available, show the operator's driver's license to a person described by Subdivision (1); and

(3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.^[3]

[3] Tex. Transp. Code § 550.023. A violation of this statute is criminalized under other statutes. See id. §§ 550.021(a)(4), (c), 550.022(a)(3), (c).

The conjunction "and" is used both in the first subsection and in connecting the three subsections. A driver in an accident described above must comply with all of the requirements in the statute. He must give his name, address, registration number, and insurance carrier. He must show his operator's license if requested and available, and he must provide reasonable assistance to any person injured in accordance with the third subsection. If he fails to comply with even one of these requirements, he has violated the statute. Because Section 545.060 is likewise structured as a requirements statute rather than as an offense statute, the word "and" serves a function opposite to what it would ordinarily serve in a statute that directly creates an offense.

I agree with the Court that there is some interconnection between the subsections, but I disagree with its conclusion that this means that the subsections do not impose independent requirements. While the requirements in these subsections are related, they are nevertheless distinct. The first requirement sets a general rule that a driver must drive entirely within a single lane and sets an exception when following this general rule is not "practical." Even when the exception applies-when driving within a single lane is not practical-the driver must still follow the second requirement of moving from the lane only when it can be done safely.

One can see how these provisions work together when a driver changes lanes. A driver cannot drive within a single lane when changing lanes, so the "as nearly as practical" language of the first subsection allows the driver to briefly drive in more than one lane while changing lanes. But the driver who changes lanes must still follow the second subsection and change lanes only when it can be done safely. And when the lane change is complete, the general rule from the first subsection applies and requires the driver to again drive entirely within the new lane.

Another example of how these provisions work together is when a driver sees an obstacle in his lane. An obstacle in the lane might make driving within a single lane impractical. The driver might need to briefly move partially into another lane to avoid the obstacle before moving back entirely within the original lane. But the driver in that situation is still subject to the second subsection's requirement that he move into the other lane only when it is safe to do so.

The Court concludes that reading the two subsections as independent requirements would render Subsection (2) meaningless because any movement from a single marked lane would result in the commission of an offense regardless of whether it is "safe." But this overlooks the words "as nearly as practical." In fact, the Court's construction renders Subsection (1) meaningless. If all the legislature cared about is whether a driver could move from his lane safely, then the statute would need only Subsection (2). There would be no need at all for Subsection (1) and its practicality standard.

Relying on a recent version of Merriam-Webster's dictionary, the Court defines "nearly" as "almost but not quite," and concludes that a motorist is not actually required to maintain a single marked lane under Subsection (a)(1) but that, instead, he must "almost, but not quite stay within the lane." But the Court overlooks the grammatical context in which the word "nearly" is found, and there are other definitions that better fit that context. None of the usage examples on the Merriam-Webster website track the context in which "nearly" appears in our statute, with an "as" on each side of the word. But the Oxford English Dictionary has examples that do. Under one entry, "With close approximation or near approach (to some state or condition, etc.),"^[4] the examples are "As nearly as a I may, I'll play the penitent to you" and "As nearly prime minister as any English subject could be under a prince of William's character."^[5] Under the "close approximation" definition, the statutory wording requires a driver to drive entirely within a single lane in as close an approximation as practicality dictates. Such a requirement dictates driving entirely within the lane unless an exceptional circumstance makes doing so impractical.

[4] Nearly, The Oxford English Dictionary (2nd ed. 1989) (entry 6).

[5] Id. (spelling modernized under first example).

The Court further concludes that reading the subsections as independent requirements renders Section 545.103 of the Transportation Code meaningless. Again, I disagree. The Court points to the portion of the statute that provides, "An operator may not . . . move right or left on a roadway unless movement can be made safely."^[6] The language about moving right or left on a roadway safely would cover moving on a road that has no marked lanes. This safe-movement requirement does not conflict with a requirement that a driver stay entirely within a marked lane when practical, even if not needed for safety purposes.

[6] Tex. Transp. Code § 545.103.

The Court also points out that the statute did not always contain subsection divisions and that the two requirements were at one time phrased as part of the same sentence. But they were always two requirements-one with a practicality standard and the other with a safeness standard. My construction of the current statute would apply just as well to the previous version.

In this case, even though Appellant's driving might not have been unsafe, she nevertheless failed to drive as nearly as practical within a single lane. She could have rounded the curve while staying entirely within the lane, but she did not. Consequently, she violated the statute and there was a sufficient basis for the stop.

I respectfully dissent.

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 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] 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[.]"

[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.

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 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 do so, he has committed an offense according to the statutory scheme.^[2]That is how the conjunctive "and" works in this statutory context.

[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).

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]

[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 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).

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 "renders 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 545.103: moving right or left on a roadway when it is unsafe to do so.

[4] In fact, the Court's own reading of the statute renders Subsection (a)(1) meaningless. See note 3, ante.

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).

[7] In 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.

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 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.

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 reasons outlined above, I respectfully dissent.