THE 

## Anvmzmc~ GENEELM. OF TEXAS

Honorable HenryWade Dlatrlct Attorney ,' Opinion No. c-341 Records Building Validity of Article Dallas 2, Texas &l-h, Sections 31 **and**32(d) V.C.S. which provide that anypereon-whose license or registration shall have been suapended shall Immediately return his license and registration to the Department of Public Safety andprescrlbins a penalty for the willDear Mr. Wade: ful violation thereof. Yourequest; **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. Youhave 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, whenrequired 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 Department shall forthwith direct anypeace officer to secure possession thereof andto return the sameto the Department, andthe Department shall eend **a** certified copy of the actHon. HenryWade, page 2 (C-341).



### or order of the Deparkent requiring the return of the license or regletratlori to the sheriff of the county of the peraon’a last Mown addresd.~ Thesheriff or his deputy shall Immediately upon receipt of the certlfled copy secure possession of the license or registration and return the sameto the Department. Thedirector 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 32against any peraon whohe has reason to believe has willfully failed to return license or registration as required herein. As amendedActs lp3, 58th Leg., p. 1320, Ch. 506, Par. 19. Article 6701-h, Section 32(d) la as follows:

“(d) Anyperson 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.odeand every other law upon the subject of crime which maybe enacted shall be construed according to the plain Import of the language in which It is written, without regard to the,distinctlon usually made between the construction of penal laws and laws upon other BUbjeCtS; andno 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 whoshall fall, Immediately after such election, to securely box, in the mode prescribed by law, all the ballots cast thereat, andwithin the time provided by law, thereafter to deliver the sameto the county clerk of his county, shall be fined not less thanHon. HenryWade. page 3.(C-341).

fifty nor'more .than five hundred dollars, **and** In addition thereto, maybe lmptilaoned In jail not exceeding six months." It wasappillantla contention that the court must look to Article 2677, Vernon's Civil Statutes, to',determlne the time provided by‘law tiamentioned in Article~226, rather than to Article 3028, Vermont8 Civil Statutes as amended, nowElection 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 containing the voted ballots, poll list and tally list described in Article 226, P.C."

"It maybe 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 precinct whoshall fall

. . . (2) ~lmmedlately~ k:;;after to deliver the sameto the county

. II

. . . 'Article 2677, R.C.S., onthe other hand, requires that the returns of the election of county school trustees (the kind of election here) shall be madeto the county clerk wlthIn **five** days after the election. "Wefind 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,~ andby another statute to deliver the 'returns of their election1 to the sameofficer 'within five days.1

"Since the amendmentof Article 3028, R. C. S substituting 'lmmedlately~ for the former p&l&ion requlfing the delivery of the boxes -1617,Hon. HenryWade, page 4 (C-341).

‘within ten days after the election, Sundays and the **~days**of election excluded, Ithe offense here charged la no longer so defined that a presiding officer of an election mayascertain **in** advance with reasonable certainty whenthe box containing the voted ballots must be delivered to the county clerk in order to avoid prosecution andpunishment.

“Weare 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 provided that ‘no person shall be punished for an offense which Is not madepenal by the plain Import of the words of a law.I

I,

. . .

“Thejudgment is reversed andthe proaecutlon ordered d18mlased.” In view of the following, weassert andreaffirm the decision in Ciuerrav. State, supra:

“Nocltlzen of this State shall be deprived of life, liberty, property, privileges or immunlties, or in anymannerdisfranchised, except by the due course of the law of the land.” Tex. Con&. Art. I, Sec. 19.

“There are no commonlaw offenses in this State, so noact or omlsaion Is a crime unl;za madeso by the written law of the State.” Tex.Jur.2d 89, Criminal Law, Sec. 1. WheneverIt appears that a provision of the penal law Is so Indefinitely framed or of such doubtful construction that It cannot be understood, 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. 6Texas Penal Code.

“Apenal law cannot be sustained unless what It commandsIs 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 commonIntelligence must guess as to Its meaning anddiffer as to Its application lacks the first essential of 'due process of law.' 14Am.Jur. 

### 773,779, Criminal Law, Seca. 19,22. "The rule stated has become so fixed as to be deemedaxiomatic. It has been repeatedly followed by the SupremeCourt of the Unlted States. See: Champlain Refining Co. v. Corporation commission, 

### 286U.S. 210, 

### 52sup.ct. 559, 

### 76L.Ed. 

### lC62,~86A.L.R. 403; Connally v. General Construction Co., 269 U.S. 

### 385,46Sup. ct. 

### 126,170L.Ed. 322; IPnzetta v. l?ewJersey, 

### 306U.S. 

### 451,59 Sup.Ct. 

### 618,83L.Ed. 888. "The rule Haag

also been adopted bythis court, See: ExParte Slaughter, 92Tex.Cr.R. 212, 243 S.W. 478, 26A.L.R. 891. Laddv. State, 115 Tex.Cr.R. 355, 2 State, 86 !l'ex.Cr.R. 1 S.W.2d 104; Griffin v. 98, 218 S.W. 494; Russell v. State, 88Tex.Cr.R. 512, 228 S.W. 566; Snyder v. State, 89Tex.Cr.R. 192, 230 S.W. 146; RxParte Carrlgan, 92 Tex.Cr.R. 309 244 S.W. 604; Cinadr v. State, 108 Tex.Cr. 147, 300 S.W. 64; Hallmanv. State, 113Tex.Cr.R. 100, 18S. w.26 652; Dockery v. State, 93Tex.Cr.R. 320, 227 S.W. 508; ExParte Meadows, 

### 133Tex.Cr.R. 292, 109 S.W.2d 1061." ExParte Chernosky, 153Tex.Crlm. 52, 217 S.W.2d 673 (19491

. Anextensive research of the case8 has not been productive In defining with reasonable certainty the measure of the term "Immediately." Mr. Justice Hickmanapeaklng for the court in Hicks v. Metthewe, 153,Tex. 177, 266 S.W.3d 846 (1954) construes the word "immediately" as follows:

"Theword *Immediately1 1s a term of relative signiflcatlon. Sometimes It Is understood to meanInstantaneously or without intervention 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 appllcation. Accordingly, the word Vlmmediatelyt Is very generally held to meanwith due diligence, the accused has the right to be presented without delay, but the question of what la delay must be determined by all the facts andclrcum-
-161%Hon. HenryWade, page 6 

### (C-341).

stances. Necessarily sometime must elapse between the arrest and the presentment before the magistrate." Although this language wasadopted by the Court of Criminal Appeals In Gilbert v. State, 

### 162Tex.Cr. 290, 

### 284S,W,2d go6 (X955'), It was used only to determine whether the petitioner had been denied due process of lawby 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 onthe 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 "lmmedlately" meansinstantenously andwithout 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 menof commonintelligence must necessarily guess as to the meaning of the tens anddiffer as to its application. Thus, the statute andthe various court decisions have not defined with reasonable certainty deserving of commonand ordinary understanding the word "immediately." Fromthis there can be no conclusion other than tha%Article 6701-h, Section 32(d), construed In connectfon with Article 6701-h, Section 

### 31,is unconstitutional and violative of fundamental due process onthe grounds of Indefiniteness and uncertainty. SUM MARY Bythe 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 amendedor the term "Immediately" has been determined, measured, defined and redused to a reasonable certainty capable of commonand ordinary understanding, Artlcle 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. HenryWade, page 

### 7 (C-341).

WAGGONER

CARR Attorney General of Texas

WJA:gm APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chair-mm Cecil Rotsch BobFlowers Joe Long Robert D. McGee APPROVED

FORTHEATTORNEY

GENERAL B9: Roger Tyler