                      THEATTORNEY                    GENERAL
                                    OFTEXAS

                                AUSTIN    at.T~xas

   WILL      WILSON
A-l-l-G-       GENEIIAL
                                       July 17, 1962

           Honorable A. W. Walker             Opinion NO. ~~-1388
           County Attorney
           Spur, Texas                        Re:     Whether the term "Highway
                                                      Post Office" vehicle as
                                                      used in Article 827a, Sec-
                                                      tion 8(b) applies to con-
           Dear Mr. Walker:                           tract carriers of U.S. mail.
                     In your request for an opinion from this office you
           stated the following facts:
                     "We have a man in Dickens County who has a
                contract with the Federal Government to carry
                mail from Spur to Lubbock. He operates his own
                truck, carries other items besides the mail, and
                could be properly termed a common carrier. The
                only post office service he renders is the pure
                transportation of the mail. The question is:
                should his truck for speeding purposes be classi-
                fied as a commercial vehicle under Section (4)
                or should it be classified as a 'Highway Post
                Office' vehicle under Section (5)."
                     The sections referred to in your,letter are subsections
           (4) and (5) of Section 8(b), Article 827a, and they provide as
           follows:
                           Forty-five (45) miles per hour at all
                hours"!:)1.ocations other than business or residence
                districts for commercial vehicles except commer-
                cial vehicles which are in authorized use as 'High-
                way Post Office' vehicles, and for truck-tractors,
                trailers, or semi-trailers, as defined in this Act;
                     "(5) The speed for any motor vehicle engaged
                in this State in the business of transporting pas-
                sengers for compensation or hire or for any commer-
                -ial vehicle which is in authorized use as a
                'Highway Post Office' vehicle for furnishing High-
                way Post Office service in transportation of United
                States mail shall be the same as prescribed for all
                vehicles except commercial vehicles, trucks, tractors,
                trailers or semi-trailers as pzovided in paragraph
                (2) as hereinbefore set forth.
Honorable A. W. Walker, Page 2 (~~-1388)


          The above provisions as to Highway Post Office vehicles
first appeared in the 1955 amendment of Article 827a, 54th Leg.,
ch. 488, p. 221. Subsection 5 thereof was amended again in 1961,
57th Leg., ch. 304, p. 662.  The only change noted in the 1961
amendment was that the term "Highway Post Office" as used in the
phrase "for furnishing Highway Post Office service" was capitalized,
           Article 7, Vernon's Penal Code of Texas provides as
follows:
          "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 the distinc-
     tion usually made between the construction of penal
     laws and laws upon other subjects; and no person shall
     be punished for an offense which is not,,madepenal by
     the plain import of the words,of a law.
          Article 10, Section 1, Vernon's Civil Statutes, pro-
vides as follows:
          "1. The ordinary signification shall be applied
     to words, except words of art or words connected with
     a particular trade or subject matter, when they shall
     have the signification attached to them by experts in
     such art or trade, with reference to such subject
     matter."
          Article 10, Vernon's Civil Statutes, describing rules
for the construction of civil statutory enactments applies and
is of binding force in criminal prosecutions. Bradfield v. State,
166 S.W. 734 (Tex.Crim. 1914).
          In construing a statute, the legislative intent, if
that intent can be ascertained, must govern. That the legisla-
ture had in mind a specific type of vehicle in writing the
exception to Subsection 4 is evidenced by the fact that the term
"Highway Post Office" is both capitalized and set out in quota-
tion marks.
          In State v. Internawl     G. N. Ry. Co., 107 Tex. 349,
179 S.W. 867 (1915), the court in construing a penal statute re-
quiring railroads to build and maintain buildings whenever they
repaired railroad equipment in certain instances, but excepting
"light repairs," stated as follows:
     "It will be observed that the act of the Legislature
     in question is penal in its nature, and for this rea-
     son it should be strictly construed. Construing it
Honorable A. W. Walker, Page 3 (~~-1388)


     strictly, if its provisions are vague and uncertain
     of meaning to a degree that those engaged in the
     line of industry affected by the act as operatives
     and managers of such industry could not comprehend
     its meaning, then the act should be held inopera-
     tive and void for uncertainty of meaning. The pro-
     visions of the act, in order for it to be enforce-
     able, should be plain enough in meaning for those
     operating the industry affected by it to know and
     realize whether by engaging in an act of repair they
     would breach its terms. If the act meets and ful-
     fills the requirements of this rule, it would be
     suffi$iently definite in meaning to be operative
     . . .   (Emphasis added)
          In Texas & N. P. Railroad Company v. \J. A. Kelso
                                                         -- Build-
a>Uter&a-ls   Co., Inc.,?50 S.W.2d 426 (Civ.App. 1952 errorref.
n.r.e.rthe Court stated as.follows:
     II
      . . * where a word is used in a statute it should
     usually be construed in its ordinary rather than
     in its technical sense. 'But when a term unknown
     tomthe law has a peculiar or technical meaning as
     applied to some art, science or trade, the court
     will look to the particular art, science or trade
     from which it was taken in order to ascertain its
     proper signification. . . .I'
          The Post Office Department transports mail over the
highways in two ways: (1) by common or contract carriers, known
as Star route carriers, and (2) by Highway Post Office vehicles.
A Highway Post Office vehicle is defined in Section 523.111 of
the Postal Manual as:
          "Highway post offices are bus-type vehicles
     operated over designated routes, authorized by the
     Post Office Department for the acceptance, receipt,
     distribution, storage, dispatch and delivery of
     mail by mobile clerks. All these vehicles are
     operated by private individua$s or companies under
     contract with the Department.   (Emphasis added)
          The principal difference between the two types of car-
riers is that a Highway Post Office vehicle is a specially de-
signed vehicle used to carry postal employees and designed so
that they may sort and work the mail as they move from town to
town, and is used to furnish post office services to the towns
along its route. They perform basically the same type of ser-
vice rendered by the railroad mail cars. Star route carriers
Honorable A. W. Walker, Page 4 (w-1388)


are simply common carriers transporting sacked railroad mail
between towns or cities in any suitable type of commercial
vehicle. They perform no other service than the actual trans-
porting of the mail.
          It is our opinion therefore that the term "Highway
Post Office vehicle" as that term is used in Subsection 4 and 5
of Section 8(b), Article 827a, is not so uncertain and vague
as to be unconstitutional under Article 6, Vernon's Penal Code
of Texas, and Article I, Section 10 of the Constitution of
Texas, and that under the facts stated in your letter, the
vehicle in question wo.lldnot be a Highway Post Office vehicle
but is simply a commercial vehicle as that term is defined in
Article 827a.
                          SUMMARY
      A commercial vehicle used by a common carrier in the
      transportation of United States mail over the high-
      ways, and that is used to transport other commodities
      at the same time and that is used to perform no Post
      Office service except the actual hauling of sacked
      mail is not a Highway Post office vehicle within the
      meaning of Article 827a, Section 8(b), Subsections
      (4) and (5), Vernon's Penal Code of Texas.
                                Sincerely,
                                WILL WILSON
                                Attorney General of Texas


                                     Marvin F. Sentell
                                     Assistant Attorney General
MFS: jkr
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Joe Osborn
Marietta Payne
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Houghton Brownlee, Jr.
