Donald Lothrop drives up behind another driver who has slowed down before crossing railroad tracks in Boyd, Texas. Lothrop passes that other driver on an improved shoulder as they are both crossing the tracks. A cop stops Lothrop because the pass is illegal. That stop is the occasion for Lothrop's getting arrested for DWI. Was Lothrop's driving illegal? Judge Melton D. Cude of the Wise County Court of Law Number One thought so. The Second Court of Appeals in Fort Worth agreed. But not the Court of Criminal Appeals. Judge Paul Womack delivered the opinion of the Court, in which Judges Meyers, Price, Johnson, Hervey, Cochran, and Alcala joined. Lothrop cited the Court to Transportation Code section 545.058(a): "An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only . . . to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn . . . or . . . to avoid a collision." The CCA agreed that Lothrop was passing another vehicle that was slowing on the main traveled portion on the road and that "necessary" in the statute couldn't mean what necessity would normally mean in such a statute, that is, necessity to avoid a wreck, since avoiding a collision is one of the other enumerated allowances for driving on the improved shoulder. Judge Cheryl Johnson wrote a concurrence, emphasizing that driving as Lothrop did is normally very unsafe, but that the testimony in favor of the stop was the testimony of the arresting officer only, who only said that Lothrop's driving was illegal, not that it was unsafe. Johnson says that the result would have been different had the cop testified that Lothrop had been driving unsafely. Judge Michael E. Keasler dissented without an opinion. Presiding Judge Sharon Keller concurred without an opinion: no paper trail for her, she's running for reelection.
Appellate advocacy lesson here is that if the precise language of statute makes the ordinary understanding of an expression in another part of the statute supererogatory, if might make it meaningless.
Thanks to Michael Falkenberg of the CCA staff for correcting an error in an earlier edition of this post.