Untitled Texas Attorney General Opinion ( 1951 )

Hon. Gibb Gilchrist, Chancellor
Texas Agricultural & Mechanical
College System
College Station, Texas Opinion No. V-1369
Re: Effect of new penal
statute0 regulating
wllfullg or negli-
gently setting forest
or brush fires upon
existing penal stat-
utes relating to the
Dear Mr. Gilchrist: same subject.
Your request for an opinion to inform and guide
the State Forester is as follows:
"Does Article 1318, title 17, chapter 2,
Penal Code, or Article 1321, title 17, chapter
2, Penal Code, in any way conflict with Senate
Bills 178 and 179 enacted by the 52nd Legisla-
ture?
Article 1318, Vernon's Penal Code, penalizes the
wllful burning of any building not a house, or any stack
of corn, hay, fodder, grain, or flax, or any pile of boards,
lumber, or wood, or any fence or other Inclosure, the prop-
erty of another. Article 1321, Vernon's Penal Code, penal-
izes the wilful or negligent setting fire to, or burning,
or causing to be burned any woodland or prairie of another.
Prescribed penalties differ under each article. Senate Bill
178, Acts 52nd Deg., R .S. 1951, ch. 466, p. 82, codified as
Article 1.32lb,V.P.C., makes it a penal offense to neglipent-
l.~set fire to or cause to be set on fire any woods, forest,
cut over, bxh, range, or grassland belonging to another or
set on fire his own and allow such fire to spread to the
property of another, with a penalty prescribed. Senate Bill
179, Acts 52nd Leg., R.S. 1951, ch. 315, p. 537, codified as
Article 1321a, V.P.C., makes it a penal offense to wilfullg
set on fire or cause to be set on fire any woods, forest,
cut over, brush, range, or grassland belonging to another
without the consent of or under the direction of the owner
and prescribes a greater penalty than Senate Bill 178.
Hon. Gibb Gilchrist, page 2 (V-1369)
A reading of Article 1318 and Senate Bills
178 and 179 shows clearly that the latter enactments
have no effect on Article 1318, Vernon's Penal Code.
They deal with different subjects from those dealt
with in Article 1318.
As to Article 1321, V.P.C., we do find a
conflict. That Article provides:
I"Whoever wilfully or negligently
. _ . sets
fire 50, or ourns, or causes to De ournea,
any woodland or prairie not his own, shall
be fined not less than fifty nor more than
three hundred dollars. This offense is com-
plete where the offender sets fire to his
own woodland or prairie and the fire commu-
nicates to the woodland or prairie of another."
Senate Bill 179, Acts 52nd Deg., R.S. 1951,
ch. 315, p. 537, provides:
"Section 1. It shall be unlawful for
any person to wilfully set on fire, cause
to be set on fire, or attempt to set on fire
any woods, forest, cut over, brush, range,
or grassland belonging to another, without
the consent of or under the direction of the
owner, or by any means calculated to effect
the object, or attempts to commit any of-
fense enumerated herein.
"Sec. 2. Any person who shall violate
any provisions of this Act shall be deemed
guilty of a felony, and upon conviction shall
be fined not less than Three Hundred ($300.00
Dollars nor more than One Thousand ($l,OOO.OO
Dollars, or confined in a county jail not less
than thirty (30) days nor more than six (6)
months or confined in the State penitentiary
for not less than one (1) year nor more than
five (5) years, or by both such fine and im-
prisonment.
. 3. 211 laws or parts of laws in
!!Sec
conflict with this Act are hereby repealed
to the extent of such conflict."
Hon. Gibb Gilchrist, page 3 (V-1369)
Senate Bill 178, Acts 52nd Leg., R.S. 1951, ch.
466, p. 821, provides:
'ISection1. It shall be unlawful for any
person to negligently set on fire, or cause to
be set on fire any woods, forest, cut over,
brush, range, or grassland belonging to another,
or to set on fire any woods, forest, cut over,
brush, range, or grassland belonging to himself
and allowing such fire to 'spreadto the property
of another.
"Sea. 2. Any person who shall violate any
provislon of this Act shall be guilty of a mis-
demeanor, and upon conviction shall be fined not
less than Fifteen ($15.00) Dollars nor more than
Two Hundred ($200.00) Dollars.
"Sec. 3. Failure to prevent fire from
spreading to the property of another shall be
prima facie evidence of negligence.
"Sec. 4. All laws or parts of laws in con-
flict with this Act are hereby repealed to the
extent of such conflict."
The Legislature has inaluded In Senate Bills 178
and 179 all the acts which constituted offenses under Arti-
cle 1321. The categories enumerated in Senate Bills 178 and
179 clearly include woodlands and prairies as embraced in
Article 1321. The Legieleture has divided the offenses into
negligent offenses and wilful offenses and has provided dif-
ferent penalties for these two types of offenses, which are
at variance with the penalties prescribed by Article 1321.
It Is our opinion, therefore, that Article 1321,
Vernon's Penal Code, has been repealed by Senate Bills 178
and 179. A later penal statute repeals by Implication a
prior statute upon the subject when it prescribes a differ-
ent nenaltv, or redefines in a substantial manner the of-
fen& which-the prior statute contem lated. 1 Sutherland,
Statutory Construction ( rd Ed. 1943P 505, Sec. 2031; State
v. Smith, 44 Tex. 44, (1376). S gg v. Smith, 205 S.W. 363
(-iv. App. 19183 error ief") . Stansbury v. State, 111
S.W.26 717 (Tex. Grim. 1937). kkiermore, the expressed
purp0se.t.orepeal laws in conflict with the latter Acts
strengthen the implication that Article 1321 is intended to
be repealed.
Hon. Gibb Gilchrist, page 4 (v-1369)
SUMMARY
Article 1321, V.P.C., penalizing the
burning of woodland or prairie, has been
superseded and repealed by Article 1321a,
V.P.C., and Article l32lb, V.P.C. Article
1318, v.P.c., penalizing the burning of
certain other types of property remains un-
affected.
APPROVED: Yours very truly,
Ned McDaniel PRICE DANIEL
State Affairs Division Attorney General
Charles D. Mathews BY h&$ik
First Assistant Assist t
VFI/rt
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