Untitled Texas Attorney General Opinion

THEAYTORNEY GENERAL
OFTEXAS
AUSTIN I,.TEXAR
GERALD C. MANN
Honorable Shelburne R. Glover
County Attorney
Marion County
Jefferson, Texas
Dear Sir: Opinion No. O-3236
Re: Interpretation of Article
3Olb, Vernon's Annotated Penal
Code.
This is in reply to your letter of February 28,
1941, requestlng the opinion of this Department upon the
following questions arising under Article 301b, Vernon's
Annotated Penal Code:
"1. Would it be a violation of the law
for an operator of an automobile to pass a
school bus which did not have signs on each
side showing the words 'School Bus?'
"2. Is it a violation of the law for a
driver of a school bus to operate such vehicle
where the words 'School Bus' appear only on the
ends of said vehicle?"
Article 301b reads as follows:
"Section 1. All vehicles used for the
transportation of pupils to and/or from any
school or college, shall have a sign on the front
and rear and on each side of said vehicle, showing
the words 'School Bus' and said words shall be
plainly readable in letters not less than six (6)
inches in height. It shall be the duty of the
operator of such 'School Bus' vehicle to see that
such signs are displayed as above provided, and
it shall be unlawful to operate any such 'School
Bus' vehicle unless such signs are so displayed
thereon. When any such 'School Bus' vehicle stops,
every operator of a motor vehicle or motorcycle
approaching the same from any direction shall
bring such motor vehicle or motorcycle to a full
stop before proceeding in any direction; and in
event such 'School Bus' vehicle is receiving and/
- .
Honorable Shelburne H. Glover, page 2 o-3236
or discharging passengers, the said operator of
such motor vehicle or motorcycle shall not'start
up or attempt to pass in any direction until the
said 'School Bus' vehicle has finished receiving
and/or discharging its passengers.
"Section 2. Any party who vlolates any of
the provisions of Section 1 of this Act shall,
upon conviction thereof, be guilty of a misdemeanor,
and upon conviction thereof, shall be fined not less
than Ten ($lO,OO) Dollars nor more than Five Hundred
($500.00) Dollars, or confined in the county jail
not to exceed ninety (90) days, or both such fine
and imprisonment; provided, however, that if death
results to any person, caused either actually or
remotely by a noncompliance and/or violation of
any of the provisions of this Act, then and in
that event, the party or parties so offending shall
be punished as is now provided by law.'
Note that all vehicles used for the transportation
of pupils to and from any school or college are required to
have a sign on the front, rear and on each side of the ve-
hicle showing the words 'School Bus.' These words must be
plainly readable in letters not less than six inches in height.
It is unlawful to operate a school bus unless these signs
are so displayed. Every operator of a motor vehicle is re-
quired to bring his vehicle to a sto$ before proceeding "when
'School Bus' vehicle stops.
Articles 1, 3 and 7 of the Penal Code read as fol-
lows:
"Article 1. The design of enacting this code
IS to define in plain language every offense against
the laws of this Stateb and to affix to each offense
its proper punishment.
"Article 3. In order that the system of penal
law in force in this State may be complete within it-
self, and that no system of foreign laws, written or
unwritten, may be appealed to, it is declared that
no person shall be punished for any act or omission,
unless the same is made a penal offense, and a penalty
is affixed thereto by the written law of this State.
"Article 7. This Code 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, without regard to
Honorable Shelburne H. Glover, page 3 o-3236
the distinction usually mad~ebetween the construction
of penal laws and laws upon other subjects; and no
person shall be punished for an offense which is not
made penal by the plain import of the words of a law."
In Murray v. State, 21 Cr. App. 620, 57 Am. Rep.
623, 2 S.W. 757, the appellants were convicted for nilfully
and mischievously injuring a locomotive engine under a stat-
ute making it unlawful to destroy or injure "growing fruit,
corn, grain, or other agricultural products or property,
real or personal." The court dismissed the prosecution and
on motion for rehearing, quoted the following with approval:
"'The legitimate function of courts is
to internret the legislative will, not to supple-
mentit,or to supply It. The judiciary must lim-
it themselves to expounding the law; they cannot
make it. It belongs only to the legislative de-
partment to create crimes and ordain punishments.
Accordingly, courts, in the construction of stat-
utable offenses, have always regarded it as their
plain duty cautiously to keep clearly within the
expressed will of the legislature, lest otherwise
they shall hold an act or an omission to be a
crime, and punish it, when in fact the legislature
had never so intended it. "If this rule is vio-
lated," says Chief Justice Best, "the fate of the
accused person is decided by the arbitrary dis-
cretion of the judge:, and not by the express au-
thority of the laws. The principle that the
legislative intent is to be found, if possible, in
the enactment itself, and that the statutes are
not to be extended by construction to cases not
fairly and clearly embraced in their terms, is one
of great importance to the citizen. The courts
have no power to create offenses, but if , by a
latitudinarian construction, they construe cases
not provided for to be within the legislative
enactments, it is manifest that the safety and
liberty of the citizen are put in peril, and that
the legislative domain has been invaded. Of course,
an enactment is not to be frittered away by forced
constructions, by metaphysical niceties, or mere
verbal and sharp criticisms. Nevertheless the doc-
trine is fundamental in English and American law
that there can be no constructive offenses; that,
before a man can be punished, his case must be
plainly and unmistakably within the statute, &I$
if there be sa doubt whether the statute em-
Faxtythat doubt ---
is to be resolved & favor of
. .
Honorable Shelburne H. Glover, page 4 o-3236
the accused. These principles of law admit of
no dispute, and have been often declared by the
highest courts, and by no tribunal more clearly
than the supreme court of the United States; ***I'
In Strong v. State (Ct. Cr. App. 1907), 52 Tex.
Cr. Rep. 133, 105 S.W. 785, the court said:
'* * * The rule laid down in the Mitchell
Case was based upon the proposition that where
the statute, by express terms, limits the punish-
ment to certain classes, or for the doing of cer-
tain acts, that it is only those who,are brought
by the facts under such definition that are amen-
able. This, we think, is a sound rule and sup-
ported by the authorities generally. *'* *'I
Adverting to Article 301b, the plain import of the
language used is that "such 'School Bus'" refers to a bus
displaying the required signs. By the plain language of the
article it is only a violation of law to pass such a bus
without stopping.
It is elementary that an accused is entitled to
every safeguard afforded him by law. Here for the protection
of all concerned, the law requires a "School Bus" to be so
designated in letters at least six inches high on each and
every side of the vehicle. One has violated Article 301b of
the Penal Code only when he passes such a bus without stop-
Ping. AS you so aptly put it,
'I reason that if the words had been~on
the sides of the bus, the operator of the passing
vehicle might have seen them and stopped and that
he was entitled to every warning that the law pro-
vided before a conviction would be sustained."
Before one may be prosecuted his acts must fall
within the letter and spirit of the statute. Waldstein v.
State, 20 Tex. Cr. App. 82, 14 S.W. 394. If there is any
doubt whether a statute embraces an accused's actions, that
doubt will be resolved in his favor. Murray v. State, supra.
Accordingly, it is our opinion that your first
question should be answered in the negative.
Your second question is answered in the affirmative
by the very language of Article 301b. It provides:
"It shall be the duty of the operator of
Honorable Shelburne H. Glover, page 5 o-3236
such 'School Bus' vehicle to see that such signs
are displayed as above provided, and it shall be
unlawful to operate anysuch 'School Bus' vzhicle
unless such signs are so displayed thereon.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/James D. Smullen
James D. Smullen
Assistant
JDS :js :wc
APPROVED MARCH 29, 1941
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman