Untitled Texas Attorney General Opinion ( 1951 )

November 20, 1951
Hon. William L. Taylor Opinion No. V-1352
Prosecuting Attorney
Harrison County Re: Conititutlonallty of
Marshall, Texas House Bill 584, Acts
52nd Leg., R.S. 1951,
regulating the taking
and kllllng of deer In
Panola, Rusk, Harrison,
Gregg, and Shelby Coun-
Dear Mr. Taylor: ties.
In your recent letter you ask whether House
Bill 584, Acts 52nd Leg., R.S. 1951, ch. 493, p. 1195,
Is constitutional. House Bill 584 reads in part as fol-
lows:
"Section 1. It shall be~lawful to take
or kill buck deer with pronged horns In Panola,
Rusk, Harrison, Gregg and Shelby Counties dur-
In& the period from November 15th to November
25th, lncluslve, each year, and each out of
county hunter shall be allowed to hunt in these
countles, provtded he has a hunting license and
a slip from the county clerk of the county in
which he intends to hunt; this slip to be valid
for three days per season and not subject to re-
newal.
"Sec. 2. It shall be unlawful for any per-
son to kill or take by any method whatever any
deer within Panola, Rusk, Harrison, Gregg and
Shelby Counties at any season or time of the
year other than as provided In Section 1.
"Sec. 3. Any person violating any provi-
sion of this Act shall be guilty of a mlsdemean-
or and upon conviction shall be fined not less
than Twenty-five Dollars ($25) nor more than
Five Hundred Dollars ($500) or by confinement
in the county jail for not less than ten (10)
days nor more than six (6) months or both such
fine and imprisonment."
Hon. William L. Taylor, page 2 (V-1352)
Your first reason for questioning the consti-
tutionality of House Bill 584 Is that the Act diacrim-
Inates against out-of-county hunters, limiting them to
three days' hunting during the open season while county
residents are not so limited. You feel the classlfica-
tlon of persons as resident and nonresident of the re-
spective counties is unreasonable in relation to the
spirit and purpose of the regulation and is arbitrary
and unjustly discrlmlnatory. It will also be observed
that the penalty prescribed by Section 3 for violation
of the Act Is more severe than the penalty provided by
the general law, Article 873, V.P.C.
Section 1 of the Fourteenth Amendment to the
United States Constitution reads:
"All persons born or naturalized in the
United States, and subject to the jurlsdlc-
tlon thereof, are citizens of the United
States and of the State wherein they reside.
Ho State shall make or enforce any law which
shall abridge the privileges or Immunities
of citizens of the United States; nor shall
any State deprive any person of life, liberty,
or property, without due process of law; nor
deny to any person within Its jurlsdictlo~
the equal protection of the law&" (Emphasis
added.)
Texas Constitution, Article I, Section 3, reads:
"All free men, when they form a social
compact, have equal rights, and no man or
set of men, is entitled to exclusive aepar-
ate public emoluments, or privileges, but in
consideration of public services."
The regulation of game and wild life by the Leg-
lslature of Texas IS a valid regulation under the police
the State. However, any such regulation as House
EP5Z must not discriminate among the citizens of the
State as to their right and privilege to take and enjoy
the game and wild life of the State. This wild life or
game "Is owned by the'state of Texas in trust for all of
the people of the state." Att'y Gen. Op. V-22 (1947).
It Is our opinion that the dividing of hunters
of deer within a county Into two groups, resident and non-
Tesident, and limiting nonresldent hunters to three days
Hon. wllllam L. Taylor, page 3 (v-1352)
of hunting per open season, while resident hunters may
hunt during the entire period of the open season, is an
arbitrary and unreasonable classification of hunters.
The Act deprives nonresident citizens of the privilege,
right, and pleasure of hunting deer for the entire pe-
riod of the open season as resident hunters may do. It
1s our opinion that this classification and grouping of
Texas citizens is not based upon a substantial dlffer-
ence In relation to the subject of the Act.
In Harper v. Gal-, 51 so. 226 (Fla. sup.
1910). the petitioner for a writ of habeas COPRUSwas
ci-iar&dwith violation of a game law of Florida requir-
ing nonresidents of Marion County, Florida, to give three
days' notice to the game warden of Marion County of their
IntentIon to hunt La Marion County and to purchase a ll-
tense for the privilege. Residents of Marion County were
not required to give notice or have a license. In dis-
charging the petitioner from custody of the sheriff and
holding the resident - nonresident classification for
hunting in Marion County unconstitutional for violating
the equal protection clause of the United States Consti-
tution, the court said:
II. . . the classification of persons af-
fected by the regulation is such that resl-
dents of the state who do not reside in Marion
county are dlscrimlnated against In the regu-
latlon of a subject as to which all the resl-
dents of the state have some Interest; and the
dlscritnlnatlonis apparently not founded upon
any real differences in conditions with refer-
ence to the subject regulated. Such dlscrim-
Ination is therefore unjust, and in effect
denies to the residents of the state who do
not reside in Marion county, among them being
the petitioner, the equal protection of the
laws of the land.
"The section of the statute for the vlo-
latlon of whleh the imprlaonment of the peti-
tioner was adjudged Is therefore Invalid and
Inoperative as to residents of this state;
. . . (51 so. at 230.)
To the same effect is Hill v. State, 53 So. 411 (Miss.
sup. 1910).
Eon. William L. Taylor, page 4 (V-1352)
16 C.J.S. 1094, Constitutional Law, Sec. 536,
In discussing game statutes similar to House Bill 584
contains the following statement:
“Such a statute. . . Is a denial of the
equal protection of the law If It unjustly
diserlmlnates against any of the people of
the state, as where It grants to the inhabit-
ants of the various counties of the state the
right to take game w&thin their respective
counties, to the exclusion of, or on more
favorable terms than, other residents of the
state; . . .‘I
You are therefore advised that the provisions
of Rouse Bill 584 requiring nonresident hunters to ac-
quire a slip from the county clerk good for only three
days’ hunting is unconstitutional. Section 3 of the
Act prescribing a penalty different from and more severe
th;hl;at prescribed in Article 873, V.P.C., Is likewise
I@ Parte Sizemore, 8 S.W.2d 134 (Tex. Grim.
1928); Ex Papte Carson 159 S.W.2d 126 (Tex. Crlm. 1942);
Att’y Gen. op. v-1315 (1951).
In 9 Tex. Jur. 472, Constitutional Law, Sec.
55, the following rule Is stated:
“A legislative enactment may be uncon-
stitutional and therefore invalid as to some
of its provlslons, and valid as to others.
Indeed, it is elementary law that a statute
will always be sustained, as to portions
which are not unconstitutional, unless the
unconstitutional portions and the constltu-
tlonal portions are so intermingled that
they cannot be severed. The constitutional
and unconstitutional provisions may even be
contained in the same section, and yet be
perfectly distinct and separable, so that
the first may stand though the last fall.
The point is, not whether they are contained
In the same section, for the distribution ln-
to sections Is purely artificial, but whether
they are essentially and inseparably connected
In substance. If the two parts canI_-be possibly
separated, the court should do SO
mlt the Invalid part to destroy i&w’
@iii~a$is added.)
Hon. William L. Taylor, page 5 (V-1352)
It is our opinion that the unconstitutional
provisions of House Bill 584 can be severed from the
conatitutlonal portion. That which remains Is complete
in itself and capable of being executed in accordance
with the apparent legislative intent to fix an open
season for deer in the counties to which It applies,
Independent of that which is rejected.
Your third question asks whether this law
applies to out-of-state as well as out-qf-county hunt-
ers. We feel the Act is clear upon this point. The
Act itself makes only one classiflcatlon -- resident
of the county or nonresident. Out-of-state hunters
fall within the category of nonresident hunters. Since
this plovision of House Bill 584 Is unconstitutional,
out-of-state hunters are not specifically affected by
this Act. Their requisites for hunting are determined
by other Acts regulating hunting throughout the State.
SUMMARY
Section 1 of House Bill 584, Acts 52nd
Leg., R.S. 1951,'ch. 493, p. 1195, providing
for a ten-day open season for hunting deer
in Panola, Rusk, Harrison, Oregg,and Shelby
Counties Is constitutional except for that
portion of Section 1 which requires out-of-
county residents to obtain a slip from the
county clerk in the county in which he hunts
restricting him to three days' hunting, while
residents of the respective counties may hunt
for the ten-day open season.
Section 3 pi the Act prescribing a pen-
alty more severe than that flxed by general
law, Article 873, V.P.C., Is likewise Invalid.
The wild game of this State is owned by
the State in tpqst for all of the people of
the State. Hunting privileges may not be
arbitrarily granted to one class of Texas
Eon. William L. Taylor, Ipage6 (V-1352)
citizens and denied to another on the basis
of county residence.
APPROVED: Yours very truly,
Ned McDaniel PRICE DANIEL
State Affairs Division Attorney General
Everett Hutchinson
Executive Assistant
BY
Charles D. Mathews Milton Richardson
First Assistant Assistant
MR: jIllC