Untitled Texas Attorney General Opinion ( 1976 )

The Honorable John C. White Opinion No. H-764
Commissioner of Agriculture
Texas Department of Agriculture Re: Whether persons who
P. 0. Box 12847 sell citrus fruit from
Austin, Texas 78711 door to door must be
licensed under the Citrus
Bonding and Licensing
Act.
Dear Commissioner White:
You have requested our opinion concerning an apparent
conflict between sections 22 and 4(b) (5) of article 118b,
V.T.C.S., The Citrus Fruit Growers Act. Section 22 of the
Act provides in part:
The provisions of this Act shall not
apply to a retailer of citrus fruit. . . .
Section 4(b)(5), enacted by the 64th Legislature, provides:
For a license as a 'dealer' who sells
any citrus fruit from door to door or
from temporary locations, the sum of
One Dollar ($1).
You have asked whether persons described in section
4 (b) (5) are "retailer[sl" within the meaning of section 22
and if so which provision prevails. The word "retailer" is
not defined in the Act. However, we need not fully explore
the scope of the meaning of "retailer" for in our view even
were these vendors within the normal definition of "retailer,"
the new section 4(b)(5) clearly removes them from the scope
of that term as used in section 22.
p. 3228
The Honorable John C. White - page 2 (H-764)
It is well established that in the case of conflict
between statutory provisions the later enacted and more
specific provisions must control. 53 Tex.Jur. Zd, Statutes,
5s 100, 101, 143, 161, 187, and authorities cited therein.
Since section 4(b)(5) is both the later enacted and more
specific provision, it must control. Accordingly, it is our
opinion that persons who sell citrus fruit door to door or
from a temnorarv location are not “retailerlsl” within the
exemption contaked~in section 22. See Paui v. Eggman, 53
Cal. Rptr. 237 (Cal. Ct. App. 1966);xrest v. Morgan, 7
N.Y.S.2d 988 (Sup. Ct. N.Y. 1938).
SUMMARY
Section 4(b) (5) of article 118b prevails
over section 22 of the same article.
Thus, persons who sell citrus fruit door
to door or from temporary locations are
not within the exemption granted to
"retailer[sl" in section 22.
Very truly yours,
Attorney General of Texas
APPROVED:
Ti&yiQ+y KENDALL,~ First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jwb
pm 3229