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By Houston Criminal Attorney John Floyd and Mr. Billy Sinclair

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):

• February 4, 2003 – A chartered bus carrying a church group crossed a median and collided with an SUV just south of Waco, killing five bus passengers and two SUV passengers and injuring dozens more.
• May 24, 2004 – A chartered casino bus traveling down Interstate 10 in Southeast Texas returning Texas residents from Louisiana collided with an 18-wheeler, killing one bus passenger and sending numerous others to area hospitals.
• September 23, 2005 – As Hurricane Rita barreled toward the Texas coast, a bus carrying 44 nursing home residents and staffers was rocked by a series of explosions after one of its wheels caught on fire on Interstate 45 near Dallas, killing 23 residents. The National Transportation Safety Board in 2007 faulted the bus company and a federal vehicle safety agency in the fire.
• October 25, 2005 – A tour bus crossed Interstate 35 in San Antonio after tire blew out and crashed into two 18-wheelers, killing the bus driver and injuring two bus passengers and the driver of one of the trucks.
• March 30, 2006 – A bus carrying a Beaumont high school girls’ soccer team to a playoff game in Humble rolled onto its side on Highway 90 near Devers, killing two of the teenage girls.
• January 2, 2008 – A chartered bus from Mexico on its way to Houston rolled onto its side near Victoria and was struck by a pickup truck, killing one person and injuring dozens of others.

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”:

• June 12, 2008 – An Angel Tours bus was taken out of service in Brownsville after it crossed the Mexican border on its way to Houston. DPS found ten safety violations, including: shorted wiring in the fuse box; a leak at the fuel pump and gas tank that was clearly visible; un-insulated power cable; a naked wire on the fuse box; an exhaust leak caused by loose clamps; and brakes on two axles were not adjusted.
• June 3, 2008 – An Angel Tours driver was stopped in Chambers County and ticketed for three violations for having a tire with insufficient tread and a log book lacking information.
• May 26, 2008 –An Angel Tours driver was stopped in Brownsville and ticketed for four violations, including a tire with a visible air leak, a chafed brake hose, a broken shock absorber, and a seriously cracked windshield.
• April 18, 2008 – An Angel Tours driver was stopped in Hidalgo County carrying passengers from Houston to Edinburg and ticketed for having an expired inspection certificate.
• April 18, 2008 – An Angel Tours driver was stopped enroute from Houston to McAllen and ticketed for three violations for having two defective stop lights and an invalid inspection certificate.
• December 3, 2007 – An Angel Tours driver was stopped in Harris County and ticketed for an invalid commercial driver’s license.
• August 6, 2007 – An Angel Tours driver was stopped on I-45 in Walker County and ticketed for not having records of driver duty status and cracked windshield.
• July 7, 2007 – An Angel Tours driver was stopped in Travis County and ticketed for having an expired inspection sticker, a cracked windshield, and not wearing corrective glasses.
• May 29, 2007 – An Angel Tours driver was stopped in Wharton County and ticketed for failing to carry a reflective triangle and flares.
• May 29, 2007 – An Angel Tours driver was stopped in Walker County and ticketed for having a cracked windshield and un-mounted license plate.
• May 19, 2007 – An Angel Tours driver was stopped in Guadalupe County and ticketed for driving without a safety belt during a trip from San Antonio to Houston.
• June 13, 2006 – An Angel Tours driver transporting a Boy Scout troop from Houston to Cimmarron was stopped in Childress County and ticketed for eight violations including disregarding a traffic signal, having an expired license plate, incomplete driver’s log, and operating an unregistered bus.
• February 10, 2006 – An Angel Tours driver was stopped in Harris County and had his bus taken out of service because of 12 violations including 10 defective brake and side marker lights, an unsecured fire extinguisher, and the driver not having a medical certificate.
• November 27, 2005 – An Angel Tours driver was stopped in Walker County and ticketed for four violations for having an empty fire extinguisher, an incomplete driver’s log, and expire inspection certificate.
• July 4, 2005 – An Angel Tours driver was stopped in Walker County enroute from Houston to Dallas and ticketed for four undisclosed violations.
• June 4, 2005 – An Angel Tours diver was stopped in Childress County driving a leased bus carrying 23 Houston church members and ticketed for defective plate light and incomplete driver’s log.

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.