Ex Parte Butcher , 122 Tex. Crim. 39 ( 1932 )

Relator renews complaint originally made questioning whether there is now on our statute books any penalty against him who operates a laundry and permits a female employee to work therein for more than fifty-four hours in one calendar week. Examining again article 1569, P. C., 1925, we note that it has three subdivisions: The first forbidding that a female employee, engaged in the occupations named, be allowed to work more than nine hours in any one calendar day, or more than fifty-four hours in any one calendar week; the second forbidding that female employees in laundries be permitted to work more than fifty-four hours in one calendar week, and commanding that her hours of work be so arranged as not to permit her to work more than eleven hours in any one day; and third, prohibiting that female employees, in the occupations named, be allowed to work more than ten hours per day, or more than sixty hours in any week. Article 1572, P. C., fixes the penalty for the wrongful act of an employer who violates the above prohibitions, and commands and states: "Any employer * * * who shall permit any female to work in any place mentioned * * * more than the number of hours provided for during any day of the twenty-four hours, or who shall fail or refuse to so arrange the work of such employes in said place so that they shall not work more than the number of hours soprovided for."

The matter under discussion seems one of first impression; we being unable to find where it has been before this court. There seem to be but two matters forbidden in article 1569, supra, which are made penal by the terms of article 1572, supra, viz: First, permitting female employees to work more than the number of hours provided for in any one day; second, failing and refusing to so arrange the work of such employees as that they shall not work more than the number of hours so provided for. Just what this last expression "so provided for" means, we are not called on to say, in as much as this relator is not charged with "failing or refusing to so arrange the work" of his female employees so that they shall not work either more than the hours per day or per week provided for. He is plainly charged with permitting such employees to work more than fifty-four hours in a laundry in a calendar week — an offense for which no penalty is fixed by article 1572, supra. We see no way by which we can go beyond the language of article 1572, supra, as written and enacted in the revised Penal Code of 1925, and read into said article any penal clause which may have been put therein by any former act of the Legislature in 1915. The matter before us is not merely one pertaining to procedure, concerning which slight differences between Civil and Penal Codes may be so interpreted by the courts as to uphold orderly procedure. The mandate of our statute is that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty affixed thereto by the written law of this state. Article 3, P. C. Nor can he be held to answer for such offense until there is filed a proper pleading by the state charging him with same "in plain and intelligible words," wherein shall be set forth everything necessary to be proved against him, with that certainty which will not only apprise him of the offense charged, but also enable him to plead the judgment in bar of any subsequent prosecution for the same offense. Articles 396-398, C. C. P.

Can it be contended that this relator — charged with permitting Helen George to work more than fifty-four hours in one calendar week in his laundry — would or could know that thereby he was charged with "failing and refusing to so arrange" the work of Helen George as that she should not work more than fifty-four hours per week? We do not think so. The only command of article 1569, supra, which in any way binds relator to "so arrange the work" of Helen George states plainly that "the hours of work to be so arranged as to permit the employment of such female at any time so that she shall not work more than a maximum of eleven hours during the twenty-four-hour period of one day." In said article 1569 some latitude is given to the employer in arranging the hours of work per day of his female employees, that is, in the matter of lengthening or shortening such work day, but none is given him in extending or lengthening the hours of work per week. He may make six nine-hour work days, or in some cases so many eight hour or ten hour or even eleven hour work days during the week if he chooses and be within the terms of the statute, but he can not arrange the work so that any employees named in subdivision one and two of said article can work more than fifty-four hours in any week. There is no question about the week's work hours. If such employer of female labor lets his employees work more than fifty-four hours in a week, he violates the command of article 1569. No arrangement of work hours could affect this fact. We are constrained to hold that article 1572, supra, fixes no penalty for the act of an employer of female labor in a laundry who permits his employees to work more than fifty-four hours per week, and, in obedience to the command of our statute, we must hold that the prosecution in this case, under the allegations of the complaint, must fall; no penalty being affixed by the written law of this state to the act charged.

The motion for rehearing is granted, the judgment remanding relator is set aside, and the relator is ordered discharged.

Relator ordered discharged.

Presiding Judge Morrow adheres to his views as originally written.