Untitled Texas Attorney General Opinion ( 1964 )

THE Anvmzmc~ GENEELM.
OF TEXAS
Honorable Henry Wade Opinion No. c-341
Dlatrlct Attorney ,'
Records Building Validity of Article
Dallas 2, Texas &l-h, Sections 31 and 32(d)
V.C.S. which provide that
any pereon-whose license or
registration shall have been
suapended shall Immediately
return his license and regis-
tration to the Department of
Public Safety and prescrlb-
ins a penalty for the will-
Dear Mr. Wade: ful violation thereof.
You request; our opinion construing the validity of
Sections 31 and 32(d) of Article 6701-h,Vernon's Civil
Statutes, with particular emphasis on the use of the word
"lmmedfately" as used ln,Sectlon 31.
You have advised this office that it is,your opinion
that Section 31 of Article 6701-h, "offends against Article
7 of the Texas Penal &de and la thus Invalid."
In support of our opinion you have cited Guerra v.
Stiite, 234 S.W.2d 8g6 (Tex.Crlm. 1950).
Article 6701-h, Section 31 Is as follows:
,
"Section 31. Any person whose license or
registration shall have been suspended as
herein provided, or whose policy of insurance
or bond, when required under this Act, shall
have been cancelled or terminated, or who
ahall neglect to,funleh other proof upon
request of the Department shall immediately
return his license and registration to the
Department. If any person shall fail to
return to the Department the license or
registration as provided herein, the Depart-
ment shall forthwith direct any peace officer
to secure possession thereof and to return
the same to the Department, and the Depart-
ment shall eend a certified copy of the act
Hon. Henry Wade, page 2 (C-341).
or order of the Deparkent requiring the re-
turn of the license or regletratlori to the
sheriff of the county of the peraon’a last
Mown addresd.~ The sheriff or his deputy
shall Immediately upon receipt of the certl-
fled copy secure possession of the license
or registration and return the same to the
Department. The director of the Department
of Public Safety or a person dkslgnated by
him shall file a Complaint In any court of
competent jurisdiction under Subsection (d)
of Sectlon 32 against any peraon who he has
reason to believe has willfully failed to
return license or registration as required
herein. As amended Acts lp3, 58th Leg.,
p. 1320, Ch. 506, Par. 19.
Article 6701-h, Section 32(d) la as follows:
“(d) Any person willfully falling to return
license or registration’as required In Section
31 shall be fined not more than five hundred
yg”’ or imprisoned not to exceed thirty (30)
, or both;”
Article 7,~ Vernon’s Penal Code Is as follows:
?Phls C.ode and every other law upon the
subject of crime which may be enacted shall
be construed according to the plain Import
of the language in which It is written, with-
out regard to the,distinctlon usually made
between the construction of penal laws and
laws upon other BUbjeCtS; and no pereon~ shall
be punished for an offense which Is not made
;;:I; by the plain import of the words of a
In auerra Y. State, supra, the appellant was tried
and convTZ%iToT TGIiitlon of Article 226, Vernon’s
Penal Code, which is as’follows:
“Any presiding officer of any elect&n
precinct who shall fall, Immediately after
such election, to securely box, in the mode
prescribed by law, all the ballots cast there-
at, and within the time provided by law, there-
after to deliver the same to the county clerk
of his county, shall be fined not less than
Hon. Henry Wade. page 3.(C-341).
fifty nor'more .than five hundred dollars, and
In addition thereto, may be lmptilaoned In jail
not exceeding six months."
It was appillantla contention that the court must look
to Article 2677, Vernon's Civil Statutes, to',determlne the
time provided by‘law tia mentioned in Article~226, rather
than to Article 3028, Vermont8 Civil Statutes as amended,
now Election Code, Article 8.32, Vernon's Civil Statutes.
In answer to this contention the Court stated:
"Article 2677, R.C.S., refers to 'returns
of their election,' and not to the box con-
taining the voted ballots, poll list and
tally list described in Article 226, P.C."
"It may be noted that Article 226, P.C.,
In combination with Article 3028, R.C.S.,
as amended, provides for the punishment of
any presiding officer of any election pre-
cinct who shall fall . . . (2) ~lmmedlately~
k:;;after to deliver the same to the county
.
II. . .
'Article 2677, R.C.S., on the other hand,
requires that the returns of the election of
county school trustees (the kind of election
here) shall be made to the county clerk wlth-
In five days after the election.
"We find then that the presiding judge
of the election la required by statute to
deliver the box containing the voted ballots
with 'a copy of.the report of the returns'
to the county clerk ~lmmedlately,~ and by
another statute to deliver the 'returns of
their election1 to the same officer 'within
five days.1
"Since the amendment of Article 3028, R. C.
S substituting 'lmmedlately~ for the former
p&l&ion requlfing the delivery of the boxes
-1617,
Hon. Henry Wade, page 4 (C- 341).
‘within ten days after the election, Sundays
and the ~days of election excluded, I the offense
here charged la no longer so defined that a pre-
siding officer of an election may ascertain in
advance with reasonable certainty when the box
containing the voted ballots must be delivered
to the county clerk in order to avoid prosecu-
tion and punishment.
“We are therefore constrained to hold that
Article 226, P.C., construed in connection
with Article 3028, R.C.S., a8 amended, offends
against Article 7, P.C., wherein it la pro-
vided that ‘no person shall be punished for
an offense which Is not made penal by the plain
Import of the words of a law. I
I,
. . .
“The judgment is reversed and the proaecu-
tlon ordered d18mlased.”
In view of the following, we assert and reaffirm the
decision in Ciuerra v. State, supra:
“No cltlzen of this State shall be deprived
of life, liberty, property, privileges or im-
munlties, or in any manner disfranchised, except
by the due course of the law of the land.” Tex.
Con&. Art. I, Sec. 19.
“There are no common law offenses in this
State, so no act or omlsaion Is a crime unl;za
made so by the written law of the State.”
Tex.Jur.2d 89, Criminal Law, Sec. 1.
Whenever It appears that a provision of the
penal law Is so Indefinitely framed or of such
doubtful construction that It cannot be under-
stood, either from the language In which It is
expressed, or some other written law of the
State, such penal law shall be regarded as
wholly inoperative. ’ Art. 6 Texas Penal Code.
“A penal law cannot be sustained unless
what It commands Is so clearly expressed that
an ordinary person can understand in advance
his duties thereunder.” Sportatorlum, Inc. v.
State 115 S.W.2d 483 (Tex.Clv.App. 1938, error
d.
-1618-
Hon. Henry .Wade, page 5 (C-341).
"A statute which either forbids or requires
the doing of an act In terms ao-,vague that men
of common Intelligence must guess as to Its
meaning and differ as to Its application lacks
the first essential of 'due process of law.'
14 Am.Jur. 773, 779, Criminal Law, Seca. 19,22.
"The rule stated has become so fixed as to
be deemed axiomatic. It has been repeatedly
followed by the Supreme Court of the Unlted
States. See: Champlain Refining Co. v. Cor-
poration commission, 286 U.S. 210, 52 sup.ct.
559, 76 L.Ed. lC62,~86 A.L.R. 403; Connally v.
General Construction Co., 269 U.S. 385, 46 Sup.
ct. 126, 170 L. Ed. 322; IPnzetta v. l?ew Jersey,
306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888.
"The rule Haagalso been adopted by this
court, See : Ex Parte Slaughter, 92 Tex. Crim.
212, 243 S.W. 478, 26 A.L.R. 891. Ladd v. State,
115 Tex. Crim. 355, 2 S.W.2d 104; Griffin v.
State, 86 !l'ex.Cr.R. 1 98, 218 S.W. 494; Russell
v. State, 88 Tex. Crim. 512, 228 S.W. 566; Sny-
der v. State, 89 Tex. Crim. 192, 230 S.W. 146;
Rx Parte Carrlgan, 92 Tex. Crim. 309 244 S.W.
604; Cinadr v. State, 108 Tex.Cr. 147, 300 S.W.
64; Hallman v. State, 113 Tex. Crim. 100, 18 S.
w.26 652; Dockery v. State, 93 Tex. Crim. 320,
227 S.W. 508; Ex Parte Meadows, 133 Tex. Crim.
292, 109 S.W.2d 1061." Ex Parte Chernosky,
153 Tex.Crlm. 52, 217 S.W.2d 673 (19491 .
An extensive research of the case8 has not been produc-
tive In defining with reasonable certainty the measure of
the term "Immediately." Mr. Justice Hickman apeaklng for
the court in Hicks v. Metthewe, 153,Tex. 177, 266 S.W.3d
846 (1954) construes the word "immediately" as follows:
"The word *Immediately1 1s a term of rela-
tive signiflcatlon. Sometimes It Is under-
stood to mean Instantaneously or without inter-
vention of time, but, aa used In moat statutes,
It is not to be construed so strictly. The law
must be given a practical and reasonable appll-
cation. Accordingly, the word Vlmmediatelyt Is
very generally held to mean with due diligence,
the accused has the right to be presented with-
out delay, but the question of what la delay
must be determined by all the facts and clrcum-
-161%
Hon. Henry Wade, page 6 (C-341).
stances. Necessarily some time must elapse
between the arrest and the presentment be-
fore the magistrate."
Although this language was adopted by the Court of
Criminal Appeals In Gilbert v. State, 162 Tex.Cr. 290,
284 S,W,2d go6 (X955'), It was used only to determine whether
the petitioner had been denied due process of law by failure
of the arresting officer to take the petltloner before a
magistrate immediately, and the Court did not consider or
apply this verbiage in passing on the validity of a statute
definitive of a crime. However, If this construction 1s to
be applied to the term "immediately" a8 used In Article
6701-h, Section 31, the Issue of whether the tens "lmme-
dlately" means instantenously and without the Intervention
of time or within a reasonable time determined by all the
facts and circumstances of the case la void of answer.
Wherefore, upon this issue men of common intelligence must
necessarily guess as to the meaning of the tens and differ
as to its application. Thus, the statute and the various
court decisions have not defined with reasonable certainty
deserving of common and ordinary understanding the word
"immediately." From this there can be no conclusion other
than tha% Article 6701-h, Section 32(d), construed In con-
nectfon with Article 6701-h, Section 31, is unconstitutional
and violative of fundamental due process on the grounds of
Indefiniteness and uncertainty.
SUM MARY
By the force and authority of Guerra v.
State, supra, and the inhibitions of th
Constitution and Penal Code of the Stat:
of Texas, until Article 6701-h, Section 31
V.C.S. Is amended or the term "Immediately"
has been determined, measured, defined and
redused to a reasonable certainty capable
of common and ordinary understanding, Artl-
cle 6701-h, Section 32(d), V.C.S., construed
in connection with Article 6701-h, Section
31, V.C.S. (3 manifestly unconstitutional
and void on its face for indeflnlteness and
uncertainty of those part~lcular acts or
omfsslons which constitu%e the offense set
forth therein.
Yours very truly,
_ ., - i .,
Ron. Henry Wade, page 7 (C-341).
WAGGONER CARR
Attorney General of Texas
WJA:gm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chair-mm
Cecil Rotsch
Bob Flowers
Joe Long
Robert D. McGee
APPROVEDFOR THE ATTORNEY
GENERAL
B9: Roger Tyler