THE Anvmzmc~ GENEELM. 

OF TEXAS 

Honorable Henry Wade 

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 

any pereon-whose license or 

registration shall have been 

suapended shall Immediately 

return his license and registration to the Department of 

Public Safety and prescrlbins a penalty for the willDear 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 Department shall forthwith direct any peace officer 

to secure possession thereof and to return 

the same to the Department, and the Department shall eend a certified copy of the act 
Hon. Henry Wade, 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.~ The sheriff or his deputy 

shall Immediately upon receipt of the certlfled 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, without 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 thereat, and within the time provided by law, thereafter 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 containing 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 precinct 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 wlthIn 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 presiding 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 prosecution 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 provided 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 proaecutlon 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 immunlties, 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 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. 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. Corporation 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 Haag also 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 

State, 86 !l'ex.Cr.R. 1 

S.W.2d 104; Griffin v. 

98, 218 S.W. 494; Russell 

v. State, 88 Tex.Cr.R. 512, 228 S.W. 566; Snyder 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 productive 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 relative signiflcatlon. Sometimes It Is understood to mean Instantaneously 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 mean with 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 and clrcum- 

-161% 
Hon. Henry Wade, page 6 (C-341). 

stances. Necessarily some time must elapse 

between the arrest and the presentment before 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 "lmmedlately" 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 connectfon 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, 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. 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 

APPROVED FOR THE ATTORNEY GENERAL 

B9: Roger Tyler