Page 39 - TPA Journal March April 2024

gle lane. side the single lane is not safe. And that is how the
safety requirement in (a)(2) is given effect because
Our legislature evinced an intent that these two it provides a way of evaluating when a motorist’s
subsections be read together because they are inability to stay within the lane goes beyond inci-
joined in two ways. First, the legislature’s use of dental movements outside the lane and rises to the
the word “and” in the statute suggests that a driver level of a traffic offense. Reading the statute as two
must both drive in a single marked lane as nearly separate requirements overlooks the interconnect-
as practical and not move from that lane unless it edness of each subsection.
can be done safely. The use of the word “and”
between two words or phrases most commonly Conversely, reading the statutory subsections as
means that the words or phrases on either side of two independent requirements would render sub-
the “and” are required. For example, in the well- section (a)(1) unconstitutionally vague. Generally,
known constitutional phrase “cruel and unusual a penal statute must define a criminal offense with
punishment” the word “and” signals that a partic- sufficient definiteness that ordinary people can
ular punishment must meet both standards to fall understand what conduct is prohibited and in a
within the constitutional prohibition. manner that does not encourage arbitrary or dis-
criminatory enforcement. Had the statute created
Second, subsection (a)(1) refers to “a single lane” a duty to stay entirely within a single lane, we
while subsection (a)(2) refers to “the lane.” might draw a different conclusion. But (a)(1) cre-
Combined with the legislature’s use of the con- ates a duty to stay “as nearly as practical” entirely
junction “and” this reference to “the lane” in sub- within a single lane. Even assuming a motorist has
section (a)(2) is clearly intended as a reference to notice of when he or she is no longer being “prac-
the “single lane” described in subsection (a)(1). In tical,” it is impossible for a motorist to know what
this way, subsection (a)(2) clarifies that the legis- constitutes “almost, but not quite” practical for
lature envisions a driver driving within the single purposes of avoiding criminal liability. In this
lane in subsection (a)(1) and potentially commit- manner, subsection (a)(1), when read alone, not
ting an offense when unsafely moving outside of only fails to tell ordinary citizens how they are
it. Accordingly, incidental movement outside a supposed to drive, it also encourages arbitrary
single lane will not run afoul of the statute, but enforcement by leaving the question of when
unsafe movement will. someone fails to drive “as nearly as practical”
within a single lane entirely up to the arresting
This is the only construction of the statute that
officer.
gives effect to both statutory subsections. Even
though one subsection arguably refers to a Further, reading the subsections independently of
required act and the other refers to a prohibited each other would render subsection (a)(2) mean-
act, both subsections are necessarily focused on ingless. Recognizing an offense for any movement
the same conduct—moving out of the same single from a single marked lane that is something more
lane. In this way, both (a)(1) and (a)(2) are depen- significant than driving “as nearly as practical”
dent upon each other. The phrase “as nearly as within a single lane but nevertheless safe would
practical” is given effect by providing the circum- necessarily subsume any offense based upon an
stances in which a motorist does not commit an “unsafe” movement from that lane. There would
offense even if he or she fails to stay entirely with- be no reason to ever evaluate whether movement
in a single lane. Invariably the determination of from the lane was “safe” if the only necessary
when movement outside of a single lane can be showing is whether the movement was no longer
characterized as no longer staying “almost, but not “as nearly as practical.”
quite” entirely within a single lane requires resort
to facts that suggest the continued movement out- Finally, this reading of the statute would create a

March/April 2024 www.texaspoliceassociation.com • (512) 458-3140 35