Concurring Opinion
SAM D. JOHNSON, Justice.While concurring with the result reached by the majority it would seem that there is a more fundamental basis on which this opinion should be bottomed, this being the obvious unconstitutionality of that portion of the statute here in issue. Those accountable for the untold work of enforcing our juvenile laws, the trial courts with the awesome responsibility of juvenile cases, and the public alike, all are dependent upon and must know when our statutes do not comport with minimum constitutional standards. This is indeed an area of possible legislative concern, but this concern is focused upon the problem only when our courts immediately and decisively respond when confronted with an issue of fundamental and patent unconstitutionality. Such a case is here presented.
This is not to say that the other points are not well taken. Where a twelve-year-old female is held in custody for almost two months prior to trial and counsel is appointed on the day of trial, it is not to be questioned that she is denied the effective assistance of counsel. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. Where the jury is instructed to respond on the issue of delinquency not beyond a reasonable doubt, but on a preponderance of the evidence, the child is denied due process and equal protection as well. In re Gault, supra; Speiser v. Randall, 357 U.S. 513; 78 S.Ct. 1332, 2 L.Ed.2d 1460; In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716; Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362. These of course, are in addition to those points well stated and stressed by the majority.
Far more basic, however, is that portion of the statute here in issue. Vernon’s Ann.Civ.St., Art. 2338-1, Sec. 3(f), defines a delinquent child as one who “habitually so deports himself as to injure or endanger the morals or health of himself or others * * No evidence was here presented to justify a delinquent adjudication under any other provision of the statute defining a delinquent child.
A statute which “either forbids or re- ’ quires the doing of an act in terms so vague *822that men of common intelligence must necessarily guess at its meaning and differ as to its application,” fails to meet the standards required by due process of law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
In Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, the Supreme Court said, “If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. * * * It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. * * * ” The quoted portion of the Texas statute is not sufficiently narrow and precise to give fair warning concerning what conduct is forbidden. The Court in Lanzetta emphasized, “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commends or forbids.” 306 U.S. 451, 453, 59 S.Ct. 618, 619.
The Texas delinquency statute uses the words “injure,” “endanger” and “morals,” words that have considerably less than a precise or definite meaning. A minimum requirement of a penal statute is that it inform with reasonable precision what acts it intends to prohibit. Vernon’s Ann.P.C., Art. 6 of Texas provides: “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 from some other written law of the State, such penal law shall be regarded as wholly inoperative.” Ex Parte Meadows, 133 Tex.Cr.R. 292, 109 S.W.2d 1061 (1937).
Vernon’s Ann.Tex.Const., Art. 1, Sec. 10, provides that the accused shall have the right to know the nature of the accusation against him; Art. 1, Sec. 19 provides that “no citizen of this State shall be deprived of life, liberty, property, privileges or immunities * * *, except by the due course of the law of the land.” The Fourteenth Amendment to the United States Constitution provides that no state may deny a person life, liberty or property without due process of law.
Texas Courts have consistently followed the rule laid down by the Supreme Court of the United States that “a statute which either forbids or requires the doing of an act in terms so 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.” Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673 (1949); See Ex parte Wilmoth, 125 Tex.Cr.R. 274, 67 S.W.2d 289 (1933); Ex parte Meadows, supra; State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964).
Applying the foregoing rule of statutory construction to that portion of the Texas delinquency statute here before the court, it cannot be said that any juvenile, parent or other interested party of ordinary intelligence knows when the statute is being violated. The manner of conduct necessary to indicate whether a juvenile is habitually injuring or endangering the morals or health of himself or others is not expressed or defined by the statute. The quoted portion of the statute defines delinquency in such broad, general, vague and indefinite terms that under its provisions a juvenile might be charged as delinquent under almost any set of circumstances.
The delinquency statute is penal in its effect for the court may commit the child to a public institution until the child reaches the age of twenty-one years. The statute must be construed therefore, in the same manner it would be construed under the penal code.
The quoted portion of the statute is ob- . viously void on its face because of vagueness, denying appellant her liberty without due process of law. Most respectfully, it is on this basis that this opinion should be made.