Most people automatically assume that when they board a commercial or chartered bus, they will safely reach their destination. Greyhound and Trailways over a four decade period from the 1940s through the 1970s ingrained that assumption in the American psyche. Before the explosion of air travel in this country in the 1980s, bus travel was considered an economically efficient and fairly comfortable way of traveling across a nation that spans four time zones.
But then another facet of traditional American life began to sour. Bus accidents became more frequent, and increasingly more deadly – especially in Texas whose highways are notoriously crowded with F150s and SUVs, all seemingly in a hurry to get somewhere fast. The following is a list of fatal bus crashes in Texas over the past five years as reported by Associated Press (Aug. 8, 2008):
Then on August 8, 2008 the unspeakable happened. A chartered bus carrying a Vietnamese Catholic church group from Houston to a religious festival in Missouri crashed onto its side into a guard railing after an illegal re-treaded tire blew out on a freeway in Sherman, Texas. Seventeen passengers died – fourteen at the scene – and another 40 were injured, many critically. It was a tragedy that should not have happened. The company that owned the bus, Angel Tours, has been cited for a laundry list of safety violations; the driver of the bus has a history of unsafe driving and substance abuse violations; and the bus itself had been declared unsafe to drive outside the state of Texas.
The Houston Chronicle secured and reported on a 22-page file the Texas Department of Public Safety’s Motor Carrier Bureau has on Angel Tours. That file shows that the company’s drivers were notified of at least 65 safety violations that resulted in 13 tickets since 2005. The Chronicle cited the following of what it said was the “most serious violations”:
The driver of the bus involved in the Sherman crash has his own safety issues. 52-year-old Barrett Wayne Broussard, who remains hospitalized in critical condition, was convicted in 2001 for driving while intoxicated, ticketed in 2004 for speeding, and ticketed twice last year for speeding and again for having an incomplete driver’s log. The bus he was driving at the time with the incomplete log had to be taken out of service. It marked the second time last year that a bus he was driving had to be taken out of service.
The calls for industry reforms and criminal sanctions came swiftly following the Sherman crash.
“Until criminal sanctions are used as an enforcement tool, we’re going to be plagued with this problem,” Dallas attorney Mark Webner was quoted by the Chronicle. “When you have certain operators just flagrantly gaming the system, circumventing safety rules, operating without any legal authority, criminal actions need to be taken.”
Webner won a $36 million judgment for the family of one of four teenagers killed on a chartered bus after a sleep-deprived driver fell asleep at the wheel. Webner and Department of Public Safety tried to get the local prosecutor to take criminal action against the carrier after they produced evidence showing the company had altered documents in order to operate illegally. The prosecutor declined to file charges.
Houston bus accident attorney Rob Ammons agrees with Webner, telling the Chronicle that bus operators and drivers are given too much leniency. But a Grayson County prosecutor has already signaled that bringing criminal charges in the Sherman case may prove difficult.
The only serious criminal charge that could be brought against either the owner of Angel Tours or the bus driver, in state court, would likely be criminal negligent homicide under Article 19.05 of the Texas Penal Code which provides that “a person commits an offense if he causes the death of individual by criminal negligence.” Article 6.03(d) of the Texas Penal Code defines criminal negligence as: “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint”
Under § 6.03(d) and § 19.05, the State would have to prove (1) that the Angel Tours owner or the bus driver should have been aware that their respective actions posed a substantial and unjustifiable risk; and (2) that their failure to perceive these risks constituted a gross deviation from the standard of care an ordinary person would have exercised under similar circumstances from their standpoint. See, Stadt v. State, 120 S.W.3d 428, 433 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
The key to criminal negligence, therefore, is the failure to perceive a risk. See, Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975)(“The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”)
In Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.Crim.App. 1994) the court of criminal appeals said that “ …. nobody is subject to criminal punishment if they are aware of a relatively minor risk or simply negligent.” Id., at 20. As the Supreme Court said in Bank Royalty Company v. Walls, 616 S.W.2d 911 (Tex. 1981) said: “What lifts ordinary negligence into gross negligence is the mental attitude of the defendant.” Id., at 20.
Likewise, what lifts ordinary negligence into criminal negligence is state of mind, an essential element of criminally negligent homicide that may be inferred from the circumstances. The court in Stadt v. State, supra, said that “proof of culpable mental state generally relies upon circumstantial evidence … Ordinarily, it must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances … The issue of whether recklessness or criminal negligence is shown—that is, whether one is aware of the risk or simply fails to perceive it—is a conclusion to be drawn through inference from all the circumstances by the trier of fact.” Id., at 438. For example, driving a car at an excessive speed in a residential neighborhood at a time when children are on their way to school would properly constitute a failure to perceive risk. See, Thompson v. State, 676 S.W.2d 173, 176-77 (Tex.App.-Houston [14th Dist.] 1984, no pet.).
There could be a case for criminally negligent homicide in the Sherman case if the Angel Tours owner knew the re-treaded tire was defective and/or should not have been on the bus as a matter of law. And, of course, if the multiple federal and state investigations disclose that the bus driver was either speeding or intoxicated at the time of the accident, he could face a criminally negligent homicide charge.
In addition to state charges, federal criminal charges could also be file under a number of legal theories.
Whatever state and federal authorities do relative to criminal charges, civil damage lawsuits will be filed in this case. While civil damages may alleviate some of the staggering economic losses that these families will suffer, they will never heal the deep pain caused by this senseless, miserly act.
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