TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-20-00519-CR Bernard Daniel, Appellant v. The State of Texas, Appellee FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 80234, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING DISSENTING OPINION I respectfully dissent from the Court’s opinion and would hold that it is objectively reasonable for Officer Todd to have reasonable suspicion that Daniel violated Section 545.060(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). In my opinion, an officer’s mistake of law in adhering to the plurality opinion’s statutory construction in Leming v. State, 493 S.W.3d 552, 556–61 (Tex. Crim. App. 2016), is objectively reasonable when the validity of this Court’s contrary interpretation of Section 545.060(a) in Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin 1998, pet. ref’d), has not been considered post-Leming, although Hernandez remains the law in this jurisdiction. I also write separately because it is my view that “exceptional circumstances require en banc consideration,” see Tex. R. App. P. 41.2(c), to provide needed clarity to the officers in this jurisdiction as to the interpretation of Section 545.060(a) and the status of Hernandez. Since this Court denies en banc consideration in its opinion today, I encourage the Court of Criminal Appeals to address this issue, especially given the split across the courts of appeals. See Dugar v. State, 629 S.W.3d 494, 499 (Tex. App.—Beaumont 2021, pet ref’d) (“That the interpretation of section 545.060 is not yet settled is apparent from examining the intermediate courts of appeals cases discussing Leming.”). 1 The statutory issue in this appeal concerns whether Section 545.060(a) sets forth two distinct requirements, 2 creating a statutory violation for the failure to comply with either requirement, or whether its provisions operate together, creating a statutory violation only if an operator fails to comply with both Subsections (1) and (2). In Hernandez, this Court held that “the statutory language shows a legislative intent that a violation of section 545.060 occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely” and that the provision does not “create[] two separate offenses, but rather only one: moving out of a marked lane when it is not safe to do so.” 983 S.W.2d at 871 (citing Atkinson v. State, 848 S.W.2d 813, 815 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)). Eight years after 1 The Court of Criminal Appeals has granted a petition for discretionary review that raises this issue but has not issued a decision in that case. See State v. Hardin, No. PD-0799-19 (Tex. Crim. App. Oct. ^[2], 2019), available at https://search.txcourts.gov/Case.aspx?cn=PD-0799- 19&coa=coscca (last visited Dec. 17, 2021).

Hernandez, however, a plurality opinion of four judges on the Court of Criminal Appeals expressly disavowed Hernandez’s construction of Section 545.060(a), concluding:

We do not think the fact that both the requirement (stay within a single lane as far as practical) and the prohibition (do not leave that lane unless it is safe to do so) originally appeared in the same subsection of the statute necessarily means that the Legislature intended that both must be violated before an offense has occurred. To interpret the statute as the courts of appeals in Atkinson and Hernandez have done essentially reads the requirement aspect (stay in a single lane as far as is practical) out of the statute, leaving only the prohibition aspect (do not change lanes when it is unsafe to do so) intact.

Leming, 493 S.W.3d at 558 (plurality op.); see also id. at 558–60 (plurality op.). But because

Judge Alcala did not join this section of the plurality opinion—although she joined the other sections of the opinion—Leming did not overrule Hernandez. See Leming, 493 S.W.3d at 553.

Nevertheless, in my view, an officer’s adherence to the plurality’s construction of Section 545.060(a) in Leming is an objectively reasonable mistake of law. See Dugar, 629 S.W.3d at 500–01 (holding that mistake of law that Leming’s construction of section

545.060 superseded construction in 2000 binding precedent from same court was objectively

reasonable after date of plurality Leming opinion (citing Heien v. North Carolina, 574 U.S. 54, 61 (2014); Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.—Beaumont 2000, no pet.))). 3 Five judges joined Parts I, III, and IV of Leming and the plurality statutory construction—Part II—is seamlessly included within the opinion of the Court as a whole. See Leming, 493 S.W.3d at 553

(“Yeary, J., announced the judgment of the Court and delivered the opinion of the Court with

respect to Parts I, III, and IV in which Keller, P.J., and Meyers, Alcala and Richardson, JJ., joined, and an opinion with respect to Part II in which Keller, P.J., and Meyers and Richardson, JJ., joined.”). Moreover, Leming’s conclusion in Part IV, which five judges joined, restates the plurality’s conclusion in Part II. See id. at 565 (“Gillow had reasonable suspicion to detain Appellant to investigate both the offense of failing to maintain a single lane of traffic and the offense of driving while intoxicated” (emphasis added)). The Court asserts that the officer’s

mistake of law is not reasonable “when this Court has never stopped following Hernandez or cast any doubt on its continuing validity.” Ante at ___. But in April 2017, when Officer Todd stopped Daniel’s vehicle, this Court had not cited either Hernandez or Leming in a post-Leming decision, nor has it applied Hernandez or considered its validity in light of Leming since then. ^[4] Finally, in today’s opinion, the Court goes even further than concluding that

Hernandez is binding. This Court states that “Hernandez was decided correctly” because

Subsections (1) and (2) “are joined by the conjunctive ‘and,’ which means that to violate Section

545.060(a), a motorist must both fail to drive as nearly as practical entirely within a single lane and fail to make that movement safely.” Ante at ___. But this reasoning misconstrues Section

545.060(a)’s logical form as setting forth two violations, rather than two requirements. When two requirements are joined by the conjunctive “and,” the violation of either requirement constitutes a violation of the statutory provision. ^[5]

For these reasons, I respectfully dissent and encourage the Court of Criminal

Appeals to revisit the issue and reconsider Hernandez’s construction of Section 545.060(a).