               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 Sup.Ct. 618, 83 L.Ed. 888.
         "The rule Haagalso been adopted by this
     court,   See : Ex Parte Slaughter,   92 Tex.Cr.R.
     212, 243 S.W. 478, 26 A.L.R. 891. Ladd v. State,
     115 Tex.Cr.R. 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.Cr.R. 512, 228 S.W. 566; Sny-
     der v. State, 89 Tex.Cr.R.    192, 230 S.W. 146;
     Rx Parte Carrlgan, 92 Tex.Cr.R. 309 244 S.W.
     604; Cinadr v. State,    108 Tex.Cr. 147, 300 S.W.
     64; Hallman v. State, 113 Tex.Cr.R. 100, 18 S.
     w.26 652; Dockery v. State, 93 Tex.Cr.R. 320,
     227 S.W. 508; Ex Parte Meadows, 133 Tex.Cr.R.
     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
