             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
