THEAYTORNEY GENERAL

OFTEXAS

GERALD C. MANN AUSTIN I,.TEXAR

Honorable ShelburneR. Glover County Attorney Marion County Jefferson, Texas
Dear Sir: OpinionNo. O-3236 Re: Interpretation 3Olb,Vernon's Code. of Article

Annotated Penal

This is in reply to your letter of February 28, 1941, requestlng the opinion of thisDepartment upon the following questions arising under Article 301b,Vernon's Annotated Penal Code:

"1

. Would itbe a violation of the law for an operator of an automobile to pass a schoolbus which did not have signs on each side showing the words 'SchoolBus?'
"2

. Is it a violation of the law for a driver of a schoolbus to operate suchvehicle where the words 'SchoolBus' appear only on the ends of said vehicle?"
Article 301b reads as follows:
"Section1. All vehicles used for the transportationof 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 thewords 'SchoolBus' and saidwords shallbe plainly readable in lettersnot less than six (6) inches in height. It shallbe the duty of the operator of such 'SchoolBus' 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 'SchoolBus' vehicle stops, every operator of a motor vehicle or motorcycle approaching the same from any direction shall bring suchmotor vehicle or motorcycle to a full stopbefore proceeding in any direction; and in event such 'SchoolBus' vehicle is receiving and/- .

Honorable ShelburneH. Glover, page 2 o-3236

or dischargingpassengers, the said operator of suchmotor vehicle or motorcycle shallnot'start up or attempt to pass in any direction until the said 'SchoolBus' vehicle has finished receiving and/or discharging itspassengers. "Section2. Any party who vlolates any of the provisions of Section 1 of thisAct shall, upon conviction thereof, be guilty of a misdemeanor, and upon conviction thereof, shallbe 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 ifdeath results to any person, caused either actually or remotely by a noncomplianceand/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 vehicle showing the words 'SchoolBus.' These words must be plainly readable in letters not less than six inches in height. It is unlawful to operate a schoolbus unless these signs are so displayed. Every operator of a motor vehicle is required to bring his vehicle to a sto$ before proceeding "when

'SchoolBus' vehicle stops. Articles 1, 3 and 7 of the Penal Code read as follows:
"Article1. 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 completewithin itself, and that no system of foreign laws,written or unwritten,may be appealed to, it isdeclared that no person shallbe punished for any act or omission, unless the same ismade a penal offense, and a penalty is affixed thereto by the written law of this State.
"Article7. This Code and every other law upon the subject of crime which may be enacted shall be construedaccording to the plain import of the language inwhich It iswritten, without regard toHonorable ShelburneH. Glover, page 3 o-3236

the distinctionusuallymad~e between the construction of penal laws and laws upon other subjects;and no person shallbe punished for an offensewhich isnot made penal by the plain import of thewords of a law."

In Murray v. State, 21 Cr. App. 620, 57 Am. Rep. 623, 2 S.W. 757, the appellantswere convicted for nilfully and mischievously injuringa locomotive engineunder a statute making itunlawful to destroy or injure "growingfruit, corn, grain, or other agriculturalproducts or property, real or personal." The court dismissed the prosecutionand onmotion for rehearing, quoted the followingwith approval:

"'The legitimate function of courts is to internret the legislativewill, not to supplementit,or to supply It. The judiciarymust limit themselves to expounding the law; they cannot make it. It belongs only to the legislativedepartment to create crimes and ordain punishments. Accordingly, courts, in the construction of statutable offenses,have always regarded it as their plain duty cautiously to keep clearlywithin the expressedwill 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 violated," says Chief Justice Best, "the fate of the accused person is decided by the arbitrary discretion of the judge:,and not by the expressauthority of the laws. The principle that the legislative intent is to be found, if possible, in the enactment itself,and that the statutesare not to be extendedby 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 ismanifest that the safetyand liberty of the citizen are put in peril, and that the legislativedomain has been invaded. Of course, an enactment is not to be fritteredaway by forced constructions,by metaphysicalniceties, or mere verbal and sharp criticisms. Nevertheless the doctrine is fundamental in English and American law that there can be no constructiveoffenses; that, before a man can be punished, his casemust be plainly and unmistakablywithin the statute,&I$ if there be sa doubtwhether the statuteemFaxtythat doubt is to be resolved& favorof ---. .

Honorable ShelburneH. Glover, page 4 o-3236

Cr. the accused. These principles of law admit of no dispute, and have been often declared by the highest courts, and by no tribunalmore clearly than the supreme court of the United States; ***I'

In Strong v. State (Ct. Cr. App. 1907), 52 Tex. Rep. 133, 105 S.W. 785, the court said:
'* * * The rule laid down in the Mitchell Casewas based upon the proposition thatwhere the statute,by express terms, limits the punishment to certain classes, or for the doing of certain acts, that it is only thosewho,are brought by the facts under such definition that are amenable. This,we think, is a sound rule and supported by the authoritiesgenerally. *'* *'I Adverting to Article 301b, the plain import of the languageused is that "such 'SchoolBus'" 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 elementarythat an accused is entitled to every safeguardafforded him by law. Here for the protection of all concerned, the law requires a "SchoolBus" to be so designated in letters at least six inches high on each and every side of the vehicle. One has violatedArticle 301b of the Penal Code onlywhen he passes such a bus without stopPing. AS you so aptly put it,

'Ireason that if the words had been~on the sides of the bus, the operator of the passing vehiclemight have seen them and stopped and that he was entitled to everywarning that the law provided before a convictionwould be sustained."
Before onemay 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 embracesan accused's actions, that doubt will be resolved in his favor. Murray v. State, supra.

Accordingly, it is our opinion that your first question shouldbe answered in the negative.

Your second question is answered in the affirmative by the very language of Article 301b. It provides:

"It shallbe the duty of the operator ofHonorable ShelburneH. Glover, page 5 o-3236

such 'SchoolBus' vehicle to see that such signs are displayed as above provided, and it shall be unlawful to operate anysuch 'SchoolBus' vzhicle unless such signs are so displayed thereon.
Very truly yours
ATTORNEY GENERAL OF TEXAS

By s/JamesD. Smullen JamesD. Smullen

Assistant

JDS:js:wc

APPROVED MARCH 29, 1941 s/GeraldC. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman