Untitled Texas Attorney General Opinion ( 1976 )

March 8, 1976
The Honorable Clayton Garrison Opinion No. H-791
Executive Director
Texas Parks & Wildlife Department Re: Validity of deputy
John H. Reagan Building game warden commissions
Austin, Texas 78701 in light of the omission
of the authorizing statute
from a non-substantive
recodification of game
and fish laws.
Dear Nr. Garrison:
You requested our opinion regarding the validity of
deputy game warden commissions after September 1, 1975.
In 1973, the 63rd Legislature authorized the executive
director of the Parks and'wildlife Department to commission
deputy game wardens who, after filing an oath and bond, were
empowered to enforce state laws relating to hunting, fishing,
and the preservation of wildlife and marine animals. Acts
1973, 63rd Leg., ch. 151, at 353. The deputy game wardens
were required to serve without compensation. The author-
izing law was compiled as article 978f-5f of Vernon's Texas
Penal Auxiliary Laws. Commissions were issued after
September 1, 1973.
Two years later the 64th Legislature enacted H.B. 1186
embodying a comprehensive Parks and Wildlife Code. Acts
1975, 64th Leg., ch. 545, at 1405. Section 2(a) of H.B.
1186 expressly repealed certain existing laws, including
"Articles 871 through 978n-2, Vernon's Texas Penal Code
Auxiliary Laws. . . ." But the new Code, which became
effective September 1, 1975, failed to contain a provision
comparable to article 978f-5f specifically authorizing the
appointment of deputy game wardens.
p. 3333
The Honorable Clayton Garrison - page 2 (H-791)
You ask (1) whether deputy game warden commissions
issued between September 1, 1973 and September 1, 1975
remain valid and "permit the commissioned person to continue
enforcement of game and fish laws as authorized under omitted
Article 978f-5f," and (2) whether commissions issued after
September 1, 1975 are valid. The principal issue is whether
authority granted by article 978f-5f survived enactment of
the new Parks and Wildlife Code. In our opinion it did not.
There is no doubt that article 978f-5f of the Penal
Auxiliary Laws, which provided specific authority for
deputy game warden commissions , was repealed by the law
enacting the new Parks and Wildlife Code. Section 2(a) of
H.B. 1186 contained a specific express repealer of "Articles
871 through 978n-2, Vernon's Texas Penal Code Auxiliary
Laws," which is inclusive of article 978f-5f. The article
was not among those specifically saved from repeal by section
2(c) of H.B. 1186.
Deputy game wardens are not mentioned at all in the new
Parks and Wildlife Code. The only apparent source of author-
ity for deputy game warden commissions is section 11.018
which provides generally for the executive director of the
Parks and ,Wildlife Department to appoint employees of the
Department. But like its predecessor proyision, article
978f-3a of the Texas Penal Auxiliary Laws section 11.018
does not provide for appointments, salaried or otherwise,
unless authorized by the current appropriations act. See
Attorney General Opinion M-1080 (1972) construing article
978f-3a. The current appropriations act fails to provide
for deputy game wardens. Acts 1975, 64th Leg., ch. 743,
at 2417.
Section 3 of H.B. 1186 provides:
Sec. 3. This Act is intended as a recod-
ification only, and no substantive change
is intended by this Act.
p. 3334
The Honorable Clayton Garrison - page 3 (H-791)
See also V.T.C.S. art. 5429b-1. While this statement of
legislative intent is helpful in construing the Act, the
language of the Act designed to accomplish that intent must
fairly and reasonably do so.' City of Sweetwater v. Geron,
380 S.W.2d 550, 552 (Tex. Sup. 1964). The rule applicable
to code revisions was addressed by the Texas Supreme Court
in American Indemnit Co. v. City $ Austin, 246 S.W. 1019,
---d---- , where it said:
1024 (Tex. Sup.
Codes are not mere compilations of laws
previously existing, but bodies of laws
so enacted that laws previously existing
and omitted therefrom cease to exist, and
such additions as appear therein are the
law from the approval of the act adopting
the Code. . . .
The Court went on to e,xplain at 1025:
But the Revised Statutes, as we have
seen, are the law, and are to be looked
to with safety and confidence by the
citizen; nor need one, under the rules
of construction shown in the authorities
cited, look into the original acts, except
to explain ambiguities in the Code. . . .
See 246 S.W. 1019, 1024 (authorities cited therein); 1A
.Kherland, Statutory Construction 4th ed. fi 28.05; 53 Tex.
Jur.2d Statutes 99 4, 189, and 190; Freeman, The Texas
Legislative Council's Statutory Revision Program, 29 Tex.
B.J. 1021 (1966). The rule allows for the scrutiny of prior
statutes if the new code is unclear or ambiguous. See
V.T.C.S. art. 5429b-2, 9 3.03; Honea v. United States, 344
F.2d 798 (5th Cir. 1965); Orton 5 Adams, 444 P.2d 62 (Utah
D;;;: Ex parte Copeland, 91 SzW.2d 700 (Tex.Crim:App.
After carefully reviewing the Parks and Wildlife
Code, 'it is our view that the language of the Code with
regard to authority to commission deputy game wardens is
clear and unambiguous. While the Legislature may well have
not intended to eliminate the statutory authority for deputy
game wardens, we do not believe the rules of statutory
construction give us the option of looking behind the very
clear language of the Act. Accordingly, we are required to
p. 3335
The Honorable Clayton Garrison - page 4 (H-791)
conclude that after the Code became effective and article
978f-5f was repealed, the executive direc.tor was without
authority to commission deputy game wardens. Therefore, any
commission issued on or after September 1, 1975 is invalid.
Your inquiry concerning the validity of commissions
issued before September 1, 1975 presented a somewhat dif-
ferent question. Undoubtedly the commissions were valid
when issued if issued in conformance with the requirements
of article 978f-5f. Whether such commissions remain valid
is not the controlling factor in regard to the concerns you
expressed. Even if the commissions remain valid, which we
do not decide in this opinion, the sole source of special
authority for deputy game wardens to enforce the laws of
this state by virtue of those commissions was under article
978f-5f. When that article was repealed, any authority
arising from it was lost. We are unable to find any sug-
gestion that the special enforcement authority in the new
Parks and Wildlife Code, which is broader than that previ-
ously available under article 978f-5f, was intended to
extend to deputy game wardens.
Wildlife Code 9 12.101 et seq. %&-~g~Z&a``ptem-
ber 1, 1975, persons commissioned as deputy game wardens
under article 978f-5f were no longer specially authorized to
enforce the game and fish laws of this state.
SUMMARY
Acts 1975, 64th Leg., ch. 545, at 1405,
which enacted the Parks and Wildlife Code,
repealed article 978f-5f, Texas Penal Auxiliary
Laws, and eliminated authority for deputy
game wardens. Deputy game warden commissions
issued after September 1, 1975 are invalid.
Persons commissioned before September 1,
1975 are not authorized to continue to enforce
the game and fish laws of this state as previ-
ously authorized by article 978f-5f.
#%-JJY+
Attorney General of Texas
p. 3336
The Honorable Clayton Garrison - page 5 (H-791)
APPROVED:
DAVID M/KENDALL, Bidst Assidtant
da c-
C. ROBERT HEATH[, Chairman
Opinion Committee
jwb
p. 3337