Untitled Texas Attorney General Opinion ( 1970 )

November 30, 1970
Honorable Hunter B. Brush Opinion No. M-737
Criminal District Attorney
Smith County
Tyler, Texas 75701 Re: Has Article 902,
Vernon's Penal Code,
been repealed by
Article 978j-1, of
Dear Mr. Brush: that code?
You have inquired whether Article 902, Vernon's Texas
Penal Code, has been impliedly repealed by Article 978j-1
of that Code. Article 902, originally enacted in 1925,
prohibits the hunting of deer or other protected animals
with artificial lights.l/ Any person violating its
provisions may be fined-from $50.00 to $200.00, or confined
in the county jail from thirty to ninety days, or both.
11 “It shall be unlawful. . . to hunt deer or
any other animal or bird protected by this chap-
ter, by the aid of what is commonly known as a
headlight or hunting-lamp, or by artificial light
attached to an automobile, or by the means of any
form of artificial light. Any person violating
any of the provisions of this article shall be
deemed guilty of a misdemeanor and upon conviction
shall be fined in any sum of not less than fifty
($50.00) dollars nor more than two hundred ($200.00)
dollars, OT by confinement in the county jail for
not less than thirty (30) days nor more than ninety
(90) days, OF by both such fine and imprisonment.”
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Honorable Hunter B. Brush, Page 2 (M- 737 )
Article 9783-1, commonly known as the Uniform Wild-
life Regulatory Act, was enacted in 1967 to reduce the
contents of seventy-one separate Acts into a single Act.
For all counties placed within the Uniform Act, the Parks
and Wildlife Commission is granted authority and power to
provide by proclamation, rule, or regulation the seasons,
means, method and bag limits for the taking of wildlife
resources within such counties. Any person who violates
the Uniform Act or any proclamation, rule or regulation
issued by the Commission may be fined from $25.00 to $200.00
for each violation.
Section 15 of the Uniform Act contains an express
listing of all statutes repealed thereby. Article 902
is not mentioned. However, Section 15 continues as follows:
"Any and all laws, general and special, and not
specifically saved from repeal in this section,
but in conflict with the provisions of this Act
are repealed to the extent of such conflict only."
Article 902 is not specifically saved from repeal. The
question remains as to whether Article 902 is in conflict
with the Uniform Act.
othing in the Uniform Act in conflict with
We
Article see23
902- unless it be that portion of the Uniform
Act which grants authority to the Parks and Wildlife
Commission to regulate the means and methods whereby
game birds and animals may be taken. Whether this pro-
vision, alone, would impliedly repeal Article 902 is
answered in Section 18 of the Uniform Act as follows:
2/ We recognize that if a new law covers the
iShole subject matter of a former law and prescribes
a different penalty, the former law is repealed by
implication. Lane vs. State, 165 Tex. Crim. 222,
305 S.W.2d 595 (Tex.Crim.App., 1957). This rule,
however, is not applicable where, as we have con-
cluded infra, the statutes pertain to different
subject matter offenses.
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Honorable Hunter B. Brush, Page 3 (M-737)
"Section 18
. . .
"All game laws, General and Special, . . . pertain-
ing to the State of Texas or any county OT counties
therein, shall be in full force and effect until
the Parks and Wildlife Commission shall, in accord-
ance with this Act issue a proclamation, rule or
regulation dealing with the subject matter of the
county affected by such presently existing game law."
.As indicated in your letter to us, Smith County was
placed within the regulatory authority of the Commission
by an Act of the Legislature on June 10, 1969. Thereafter,
the Commission promulgated rules for the Smith County re-
gion in "Northeast Texas Hunting Proclamation F-22 (1969-
1970) 11effective October 18, 1969. Part Two of Proclamation
Number F-22 concerns the general means and methods whereby
game birds and game animals may be lawfully taken:
"2.01 Means and Methods
"It shall be unlawful to take or attempt to
take or kill or attempt to kill any game bird
or game animal except by the means and methods
authorized under Part Two of this proclamation."
Hunting by use of artificial lights is not mentioned in
the proclamation. Therefore, since such means are not
expressly permitted it would be unlawful by implication of
omission to take deer or other protected animals through
this method. It is clear, however, that the Commission,
through its proclamation, has not attempted to define a
specific offense of headlighting deer. Article 902 deals
specifically with this question.
Applying the rules of statutory construction, we
recognize the general rule that a later statute usuallv
controls an earlier statute concerning the same subject
matter. cf. 53 Tex.Jur.2d 149, Statutes, Section 101. Im-
plied repeal of a statute, however, is looked upon with
disfavor by Texas courts. Standard vs. Sadler, 383 S.W.2d
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Honorable Hunter B. Brush, Page 4 (M-737)
,391 ~ITex., 1964); Gordon vs. Lake, 163 Tex. 392, 356 S.W.2d
138, (1962). The doctrine of implied repeal may not be
invoked merely because there is some difference, discre-
pancy, inconsistency, or repugnancy between earlier and
later legislation. Royalty vs. Nicholson, 411 S.W.2d
,565 (Tex.Civ.App., 1967); 53 Tex.Jur.2d 148, Statutes,
Section 100. Where there is no express repeal, the
presumption is that in enacting a new law the Legislature
intended the old statute to remain in operation. 53
Tex.Jur.Zd 150, Statutes, Section 102. Thus, every effort
is made to reconcile two overlavvinu statutes, and unless
the statutes are in irreconcilable conflict, both statutes
will be allowed to stand. State vs. Jackson, 370 S.W.Zd
797, (Tex.Civ.App.,
_. 1963, aff'd 376 S.W.2d 341, Tex.Sup.
1964).
Where statutes do conflict, a specific statute usually
prevails over a general statute. State vs. Humble Oil and
Refining Company, 187 S.W.2d 93 (Tex.Civ.App., 1945). This
rule anvlies even thouqh the general statute has been enacted
more recently. Thus, a- general law will not ordinarily be
held to have repealed by implication, a particular law,
though both relate to the same subject matter. American Canal
Company vs. Dow Chemical Company, 380 S.W.2d 662 (Tex.Civ.App.,
1964); Royalty vs. Nicholson, 411 S.W.2d 565, supra.
We have concluded that Article 902 and the Uniform
Act (as supplemented by Proclamation Number F-22) may be
easily reconciled. The two statutes do not contain con-
flicting requirements, nor do the two statutes have the
same objects in mind. The Uniform Act and Proclamation
F-22 are primarily concerned with enumerating the means
and methods by which game may be taken. Article 902 con-
tains an express prohibition and penalty against taking
any game by means of artificial light. There can be a
repeal by implication only when the two acts or statutory
provisions treat the same matters, or their subject and
object are the same. Thus, though the two may refer to
the same subject, both will stand unless their objects
are the same or unless there is some irreconcilable con-
flict on the specific subject. Cole vs. State, 106 Tex.
472, 170 S.W.2d 1036 (Tex., 1914); Long vs. Fort Worth,
333 S.W.2d 644 (Tex.Civ.App., 1960). It is our opinion
that the two statutes deal with different subject matter
and do not conflict.
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Honorable Hunter B. Brush, Page 5 (M- 737)
Even should the statutes be considered as conflicting,
Article 902 is clearly the more specific statute. Thus,
insofar as the specific subject matter of taking game by
means of artificial light is concerned, Article 902 would
control.2/
We recognize that the statutes overlap inasmuch as
headlighting would not be authorized under either statute.
The statutes, however, in no way conflict as to what con-
duct is proscribed, and impose no conflicting requirements
upon the hunter. We therefore conclude that the specific
Article 902 has vitality and that it supplements the Uni-
form Act in Smith County. We regard the statutes as cumu-
lative rather than mutually exclusive. Our conclusion
appears to be in conformity,with a venerated principle of
statutory construction dating back to 1885 where, in
Lufkin vs. City of Galveston, 63 Tex. 437, the Supreme
Court stated:
“As a natural result of this principle, it follows
that where in one section a general rule is pre-
scribed, which without qualification would embrace
an entire class of subjects, and in another section
31 State vs. Jackson, supra, concerned the effect
of a Parks and Wildlife Commission proclamation
directly in conflict with a specific State statute.
The court in considering whether or not the latter
proclamation took precedence over the earlier statutes
stated as follows:
"It is further our view that if the Legislature
by specific legislation closes or opens bays or
title waters to certain kinds of fishing, only
the Legislature by later similar specific legis-
lation can open or close the same.” 370 S.W.Zd
at 800.
We therefore express some doubt as to whether the
Commission by proclamation can repeal Article 902
by implication.
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Honorable Hunter B. Brush, Page 6 (M- 737 )
a different rule is prescribed for individual sub-
jects of the same class, the latter must be con-
strued as exceptions to the general rule, and be
governed by the section which is applicable to
them alone."
Thus, we conclude that Article 902 has not been impliedly
repealed by the Uniform Wildlife Regulatory Act and the
Northeast Texas Hunting Proclamation F-22.
We have reached the conclusion above not without
detailed consideration of another provision of the Uniform
Act, viz., Section 15(f). Section 15, as indicated above,
contains a specific listing of statutes expressly re-
pealed by the Uniform Act. The Section also contains a
listing of statutes expressly saved from repeal. Subsec-
tion (f) provides as follows:
. * ./vrovided further that: . . . (f) in Webb
CountyTrticle 901, 902 and 924a of the Penal Code of
the State of Texas shall not be affected; . . ."
LEmphasis Added/
At first glance, this section seemingly indicates that
Article 902 may have been repealed in all other counties.
Considering the legislative history of this particular pro-
vision, however, we have concluded that the language has
effect only insofar as it withdraws authority from the
Commission to enact a proclamation, rule or regulation
contrary to the provisions of Article 902.
At this point, it is helpful to digress with a brief
history of the Parks and Wildlife Commission. In 1895,
the Texas Fish and Oyster Commission (predecessor of
the Parks and Wildlife Commission) was established. From
that time until 1943, the Commission employed game war-
dens and other personnel to enforce the game laws of
the state, but such laws were enacted only by the Texas
Legislature. In 1943, the Commission was granted regula-
tory authority similar to that granted by the Uniform Wild-
life Regulatory Act for certain territory west of the Pecos
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Honorable Hunter B. Brush, Page 7 (M- 737 )
River. From that date until 1967, some seventy-two separate
Acts placing various counties within such regulatory au-
thority were enacted.
In 1961, the 51st Legislature, following the procedure
above, placed Webb County within the regulatory authority of
the Game and Fish Commission. Section 16 of that Act contained
the following language:
,I Provided, however, that the provisions of
Artic;e 901, Article 902, and Article 924a of the
Penal Cods of the State of Texas shall remain in
full force and effect in said county."
Clearly, at the time of its enactment this language had
effect only to insure that the Commission regulations would
never permit taking of wild game through the use of head-
lights, or would not change the penalty therefor. Since
the language of Section 15(f) is almost verbatim the same
as in the original Webb County Act, we conclude that the
language has the same effect as it originally did; i.e.,
authority is withdrawn from the Commission to ever enact a
regulation contrary to the provisions of Article 902 in
Webb County.
Our opinion is that Article 902, insofar as it per-
tains to Smith County, has not been impliedly repealed
by the Uniform Wildlife Regulatory Act and Proclamation
F-22. Instead, the,two statutes should be properly re-
garded as cumulative and supplementary to each other.
SUMMARY
Under Parks and Wildlife Commission Proclamation
F-22, Article 902 and Article 9783-1, commonly
known as the Uniform Wildlife Regulatory Act,
are cumulative and supplementary to each other.
Article 902 has not been impliedly repealed in
Smith County by the Uniform Wildlife Regulatory
Act.
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Honorable Hunter B. Brush, Page 8 (M- 737 1
General of Texas
Prepared by Earl S. Hines
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Glenn Brown
Harold Kennedy
Howard Fender
John Reese
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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