What are the statutory elements required to actually ALLEGE and PROVE a “speeding” offense in Texas? Believe it or not, there are actually 21 individual statutory elements. Yes, that is a two (2) and a one (1). And it is my experience that the STATE knowingly and intentionally avoids providing the required due process Notice of more than two thirds of them in the criminal complaint and other charging instruments.
Which also means that they are denying the Accused in his/her due process right to Notice and defense of those elements, while also making their job as prosecutor unconstitutionally and illegally easier by not having to prove those that they fail or refuse to allege.
This article is intended to teach you how to perform legal analysis and observation in a “connect the dots” fashion. Read the statutes below and make your own conclusions about the necessary elements as I have listed them. But, while you do so, be sure to ask yourself how both the court and the prosecution can meet their individual burdens of ensuring that the Accused’s right of due process, including the right of proper, sufficient and timely Notice, are properly met under the statutes, as well as how they are not according to how they actually file the complaint. And I’ll preface that by pointing out this example.
The STATE cannot rely solely upon the elements asserted in Sec. 545.351(a) OR Sec. 545.352 as the basis for the allegation.
The exercise here is for you to figure out and recognize WHY that is and use it to make a defense according to the remaining statutory provisions.
Here are the individual elements that are actually required to be stated in a valid complaint and proven in a Texas “speeding” allegation according to the various interrelated statutes that follow. Consider that a criminal complaint that fails to state each of these elements is insufficient on its face in substance, as it fails to assert the necessary factual elements that would comprise the required legal Notice to the Accused, as well as that of what the state is required to both allege and prove for the allegation. These are direct violations of the right of due process and a total failure of the state to fully meet its burden of Notice and proof.
- Who (your name),
- Where (within the geographical boundaries of the city/county of…),
- When (on April 1, 2016),
- Did then and there,
- What (specific regulated subject matter (while engaging in “transportation”)),
- While [allegedly] acting as an “operator,”
- Did [allegedly] “drive” (not “operate” like most complaints allege),
- A[n alleged] “motor vehicle,”
- Upon a highway of this state,
- At a[n alleged] speed of xx,
- Where the posted speed limit was xxx,
- Which was [allegedly] greater than reasonable and prudent,
- Under the circumstances and,
- Conditions then existing,
- And [allegedly] without regard for actual and potential hazards then existing,
- Did [allegedly] fail in his duty to exercise due care,
- By [allegedly] failing to avoid a collision,
- With another
- Person, or
- To wit (the injured person’s name),
- Vehicle
- To wit (the vehicle year, make and model),
- That was [allegedly]
- Traveling on the highway, or
- Entering the highway
- In compliance with law.
At first you will probably see that the breakdown of Secs. 545.351 and 545.352 below look to be like either a bad web page render or is just a series of random and nonsensical breaks in sentence structure. But, if you really look at where and how the breaks in the sentence structure are done, you will see that it is broken down by its statutory parameters of conditions and objects. By breaking a statute down this way, it helps you greatly in clarifying and understanding how it actually reads and what it all means.
TRANSPORTATION CODE
TITLE 7. VEHICLES AND TRAFFIC
SUBTITLE C. RULES OF THE ROAD
CHAPTER 545. OPERATION AND MOVEMENT OF
VEHICLES
SUBCHAPTER
A. GENERAL PROVISIONS
Sec. 545.351. MAXIMUM SPEED REQUIREMENT.
(a) An
operator
may
not
drive
at
a speed
greater
than
is
reasonable and
prudent
under
the circumstances
then
existing.
(b) An operator:
(1) may not
drive
a vehicle
at
a speed
greater
than
is
reasonable and
prudent
under
the conditions and
having
regard
for
actual and
potential
hazards
then
existing; and
(2) shall
control
the speed
of
the vehicle
as
necessary
to
avoid
colliding
with
another
person
or
vehicle
that
is
on
or
entering
the highway
in
compliance
with
law and
the duty
of
each
person
to
use
due care.
(c) An operator
shall,
consistent
with
Subsections (a) and
(b),
drive
at
an
appropriate
reduced speed
if:
(1) the operator
is
approaching and
crossing
an
intersection
or
railroad grade crossing;
(2) the operator
is
approaching and
going
around
a curve;
(3) the operator
is
approaching
a hill crest;
(4) the operator
is
traveling on
a narrow
or
winding roadway; and
(5) a special hazard
exists
with
regard
to
traffic,
including
pedestrians,
or
weather
or
highway conditions.
Sec. 545.352. PRIMA FACIE SPEED LIMITS.
(a) A speed
in excess
of
the limits
established by
Subsection (b)
or
under another provision
of
this
subchapter
is
prima facie evidence
that
the speed
is
not
reasonable and
prudent and
that
the speed
is
unlawful.
(b) Unless
a special hazard
exists
that
requires
a slower speed
for
compliance
with
Section 545.351(b),
the following speeds
are
lawful:
(1) 30 miles per hour
in
an urban district
on
a street
other
than
an
alley and
15 miles per hour
in
an
alley;
(2) except
as
provided by
Subdivision (4),
70 miles per hour
on
a highway
numbered by
this state
or
the United States
outside
an
urban district,
including
a farm-to-market
or
ranch-to-market
road;
(3) except
as provided by
Subdivision (4),
60 miles per hour
on
a highway
that
is
outside
an
urban district and
not
a highway
numbered by
this state
or
the United States;
(4) outside an
urban district:
(A) 60 miles per hour
if
the vehicle
is
a school bus
that
has passed
a commercial motor vehicle inspection
under
Section 548.201 and
is
on
a highway
numbered by
the United States
or
this state,
including
a farm-to-market road;
or
(B) 50 miles per hour
if
the vehicle
is
a school bus
that:
(i) has
not
passed
a commercial motor vehicle inspection
under
Section 548.201;
or
(ii) is traveling
on
a highway
not
numbered by
the United States
or
this state;
(5) on
a beach,
15 miles per hour;
or
(6) on
a county road
adjacent to
a public beach,
15 miles per hour,
if
declared by
the commissioners court
of
the county.
(c) The speed limits
for
a bus
or
other vehicle
engaged
in
the business
of
transporting passengers
for
compensation
or
hire,
for
a commercial vehicle
used as
a highway post office vehicle
for
highway post office service
in
the transportation
of
United States mail,
for
a light truck, and
for
a school activity bus
are
the same
as
required
for
a passenger car
at
the same time and
location.
(d) In
this section:
(1) “Interstate highway”
means
a segment
of
the national system
of
interstate and
defense highways
that
is:
(A) located
in
this state;
(B) officially designated by
the Texas Transportation Commission; and
(C) approved under
Title 23, United States Code.
(2) “Light truck”
means
a truck
with
a manufacturer’s
rated carrying capacity
of
not
more
than
2,000 pounds,
including
a pick-up truck,
panel delivery truck, and
carry-all truck.
(3) “Urban district”
means
the territory
adjacent
to and
including
a highway,
if
the territory
is
improved
with
structures
that
are
used for
business,
industry,
or
dwelling houses and
are
located
at
intervals
of
less than
100 feet
for
a distance
of
at least
one-quarter mile
on
either side
of
the highway.
(e) An entity
that
establishes
or
alters
a speed limit
under
this
subchapter
shall
establish
the same
speed limit
for
daytime and
nighttime.
Now, using the example above of how to break down a statute in order to understand it better, read the following statutes and practice breaking them down in the same manner. Don’t worry about how hard it seems at first, because the more you practice doing it, the easier and more natural it feels and becomes. You will be surprised how much easier it gets. I even did the first one for you so you can learn to see the patterns involved.
Just understand that you ALWAYS want to break and isolate “and,” “but”, or “or,” and most times “if.” You will also want to break at conditional statements like “are,” “at least,” “less than,” “greater than,” etc.
You will be surprised at how you will begin to translate this breakdown practice into virtually everything you read. You will gain insight and understanding in written matter that you never knew you were capable of, and how few other people actually understand the things they are reading because they don’t do it. And that especially applies to attorneys.
TRANSPORTATION
CODE
TITLE
7. VEHICLES AND TRAFFIC
SUBTITLE
B. DRIVER’S LICENSES AND PERSONAL IDENTIFICATION CARDS
CHAPTER
522. COMMERCIAL DRIVER’S LICENSES
SUBCHAPTER A. GENERAL PROVISIONS
Sec.
522.003. DEFINITIONS. In this chapter:
…
(3) “Commercial driver’s license” means
a license
issued to
an individual
that authorizes
the individual
to drive
a class of
commercial motor vehicle.
(4) “Commercial learner’s permit” means
a permit
that restricts
the holder
to driving
a commercial motor vehicle
as provided by
Section 522.011(a)(2)(B).
(5) “Commercial motor vehicle” means
a motor vehicle
or
combination of
motor vehicles
used
to transport
passengers
or
property
that:
(A) has
a gross combination weight
or
a gross
combination weight rating of
26,001
or
more pounds,
including
a towed unit
with a
gross vehicle weight
or
a gross vehicle weight rating of
more than
10,000 pounds;
(B) has
a gross vehicle weight
or
a gross vehicle weight rating of
26,001
or
more pounds;
(C) is designed to
transport 16
or
more passengers,
including the driver;
or
(D) is
transporting hazardous materials
and
is required
to be placarded
under 49 C.F.R. Part 172, Subpart F.
…
(8) “Department”
means
the Department of Public Safety.
(9) “Disqualify” means
to withdraw
the privilege
to drive
a commercial motor vehicle,
including
to suspend,
cancel,
or
revoke
that privilege
under a state
or
federal law.
(10) “Domicile” means
the place
where
a person
has the person’s
true,
fixed,
and permanent
home
and
principal residence
and
to which
the person
intends to
return whenever absent.
(11) “Drive” means to
operate
or
be in
physical control of
a motor vehicle.
(12) “Driver’s license” has
the meaning
assigned by
Section 521.001,
except
the term
does not
include
a commercial learner’s permit
unless
otherwise provided by
this chapter.
(13) “Drug” has the meaning
assigned by
Section 481.002, Health and Safety Code.
(14) “Employer” means
a person
who owns
or
leases
a commercial motor vehicle
or
assigns
a person
to drive
a commercial motor vehicle.
(15) “Federal act” means
the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. App. Section 2701 et seq.).
(16) “Foreign jurisdiction” means
a jurisdiction
other than
a state.
(17) “Gross combination weight rating” means
the value specified by
the manufacturer
as the loaded weight of
a combination
or
articulated vehicle
or,
if
the manufacturer
has not specified
a value,
the sum of
the gross vehicle weight rating
of the power unit
and
the total weight of
the towed unit
or
units
and
any load on
a towed unit.
(18) “Gross vehicle weight rating” means
the value specified by
the manufacturer
as the loaded weight of
a single vehicle.
(19) “Hazardous materials” has
the meaning
assigned by
49 C.F.R. Section 383.5.
(20) Repealed by Acts 2001, 77th Leg., ch. 941,
Sec. 43, eff. Sept. 1, 2001.
(21) “Motor vehicle” means
a vehicle,
machine,
tractor,
trailer,
or
semitrailer
propelled
or
drawn
by mechanical power
and
used
on
a highway.
The term does not include
a vehicle,
machine,
tractor,
trailer,
or
semitrailer
operated exclusively
on
a rail.
(22) “Non-domiciled commercial driver’s license” means
a commercial driver’s license
issued by
a state
to
an individual
who
is domiciled
in
a foreign jurisdiction.
(22-a) “Non-domiciled commercial learner’s permit” means
a commercial learner’s permit
issued by
a state
to
an individual
who is
domiciled in
a foreign jurisdiction.
(23) “Out-of-service order” means:
(A) a temporary prohibition against
driving
a commercial motor vehicle
issued under
Section 522.101,
the law of another state,
49 C.F.R.
Section 383.5,
386.72, 392.5,
392.9a, 395.13,
or
396.9,
a law
compatible with
those federal regulations,
or
the North American Standard Out-of-Service Criteria;
or
(B) a declaration by
the Federal Motor Carrier Safety Administration
or
an authorized
enforcement officer of
a state
or
local jurisdiction
that
a driver,
commercial motor vehicle,
or
motor carrier operation
is
out of service
under 49 C.F.R.
Section 383.5,
386.72, 392.5,
392.9a, 395.13,
or
396.9,
a law
compatible with
those federal regulations,
or
the North American Standard Out-of-Service Criteria.
(23-a) “Person”
includes
the United States,
a state,
or
a political subdivision of
a state.
(24) “Secretary” means
the United States
secretary of transportation.
(24-a) “Seed cotton module” means
compacted seed cotton in
any form.
(25) “Serious traffic violation” means:
(A) a
conviction
arising from
the
driving of
a motor vehicle,
other than a
parking,
vehicle weight,
or
vehicle defect violation,
for:
(i) excessive speeding,
involving a
single charge of
driving 15 miles per hour
or
more
above
the posted speed limit;
(ii) reckless driving,
as defined by
state
or
local law;
(iii) a violation of
a state
or
local law
related to
motor vehicle traffic control,
including
a law
regulating
the operation of
vehicles
on highways,
arising in
connection with
a
fatal accident;
(iv) improper
or
erratic
traffic lane change;
(v) following
the vehicle
ahead
too closely;
or
(vi) a violation of
Sections 522.011
or
522.042;
or
(B) a violation of
Section 522.015.
(26) “State” means
a state of
the United States
or
the District of Columbia.
Sec. 201.904. SPEED SIGNS.
The department shall erect and maintain on the highways and roads of this state appropriate signs that show the maximum lawful speed for commercial motor vehicles, truck tractors, truck trailers, truck semitrailers, and motor vehicles engaged in the business of transporting passengers for compensation or hire (buses).
TRANSPORTATION CODE
TITLE 7. VEHICLES AND TRAFFIC
SUBTITLE C. RULES OF THE ROAD
CHAPTER 541. DEFINITIONS
SUBCHAPTER
A. PERSONS AND GOVERNMENTAL AUTHORITIES
Sec.
541.001. PERSONS. In this subtitle:
(1) “Operator” means, as used in reference to a vehicle, a person who drives or has physical control of a vehicle.
(2) “Owner” means, as used in reference
to a vehicle, a person who has a property interest in or title to a
vehicle. The term:
(A) includes a person entitled to use and possess
a vehicle subject to a security interest;
and
(B) excludes a lienholder and a lessee whose
lease is not intended as security.
(3) “Pedestrian” means a person on
foot.
(4) “Person” means an individual, firm, partnership, association, or corporation.
(5) “School crossing guard” means a responsible
person who is at least 18 years of age and is designated by a local authority
to direct traffic in a school crossing zone for the protection of children
going to or leaving a school.
Sec. 24.013. AIRCRAFT FUEL CONTAINERS; OFFENSE.
(a) A person commits an offense if the person
operates or intends to operate an aircraft equipped with:
(1) a fuel container that the person knows does
not conform to federal aviation regulations or that has not been approved by
the Federal Aviation Administration by inspection or special permit; or
(2) a pipe, hose, or auxiliary pump that is used
or intended for transferring fuel to the primary fuel system of an aircraft
from a fuel container that the person knows does not conform to federal
aviation regulations or that has not been approved by the Federal Aviation
Administration by inspection or special permit.
(b) An offense under Subsection (a) is a felony
of the third degree.
(c) A peace officer may seize an aircraft
equipped with a fuel container that is the subject of an offense under
Subsection (a).
(d) An aircraft seized under Subsection (c) may
be forfeited to the Department of Public Safety in the same manner as property
subject to forfeiture under Article 18.18, Code of Criminal Procedure.
(e) An aircraft forfeited under Subsection (d) is
subject to Chapter 2205, Government Code.
(f) In this section:
(1) “Federal aviation regulations”
means the following regulations adopted by the Federal Aviation Administration
as those regulations existed on September 1, 1985, except a regulation in
existence on September 1, 1985, that is inconsistent with a regulation adopted
after that date:
(A) certification procedures for products and
parts, 14 C.F.R. Part 21;
(B) maintenance, preventive maintenance,
rebuilding, and alteration regulations, 14 C.F.R. Part 43; and
(C) general operating and flight rules, 14 C.F.R.
Part 91.
(2) “Operate” means to use, cause to use, or authorize to use an aircraft for air navigation and includes:
(A) the piloting of an aircraft, with or without
the right of legal control;
(B) the taxiing of an aircraft before takeoff or
after landing; and
(C) the postflight or preflight inspection or
starting of the engine of an aircraft.
Sec.
541.002. GOVERNMENTAL AUTHORITIES. In this subtitle:
(1) “Department” means the Department
of Public Safety acting directly or through its authorized officers and agents.
(2) “Director” means the public safety
director.
(3) “Local authority” means:
(A) a county, municipality, or other local entity
authorized to enact traffic laws under the laws of this state; or
(B) a school district created under the laws of
this state only when it is designating school crossing guards for schools
operated by the district.
(4) “Police officer” means an officer
authorized to direct traffic or arrest persons who violate traffic regulations.
(5) “State” has the meaning assigned by
Section 311.005, Government Code, and includes a province of Canada.
TRANSPORTATION CODE
TITLE 7. VEHICLES AND TRAFFIC
SUBTITLE J. MISCELLANEOUS PROVISIONS
CHAPTER 724. IMPLIED CONSENT
SUBCHAPTER
A. GENERAL PROVISIONS
Sec.
724.001. DEFINITIONS. In this chapter:
(1) “Alcohol concentration” has the
meaning assigned by Section 49.01, Penal Code.
(2) “Arrest” includes the taking into
custody of a child, as defined by Section 51.02, Family Code.
(3) “Controlled substance” has the
meaning assigned by Section 481.002, Health and Safety Code.
(4) “Criminal charge” includes a charge
that may result in a proceeding under Title 3, Family Code.
(5) “Criminal proceeding” includes a
proceeding under Title 3, Family Code.
(6) “Dangerous drug” has the meaning
assigned by Section 483.001, Health and Safety Code.
(7) “Department” means the Department
of Public Safety.
(8) “Drug” has the meaning assigned by
Section 481.002, Health and Safety Code.
(9) “Intoxicated” has the meaning
assigned by Section 49.01, Penal Code.
(10) “License” has the meaning assigned
by Section 521.001.
(11) “Operate” means to drive or be in actual control of a motor vehicle or watercraft.
(12) “Public place” has the meaning
assigned by Section 1.07, Penal Code.
Breakdown of Elements in a Speeding Charge
Criminal Complaint
Tao of Law 