Untitled Texas Attorney General Opinion ( 1961 )

THEA'ITORNEY.GENERAL
OF TEXAS
AUSTIN 11. TEXAS
FVILL WILSON
A-- GENERAL
February 27, 1961
Honorable J. 0. Duncan Opinion No. .WW-1001
District-CountyAttorney
Gilmer, Texas Re: Constitutionalityof Sub-
section (cl),Section 7 ,of
Artlcle~l722a,The Water.
Safety Act, requiring every
motorboat to carry life pre-
servers of the type approved
by the Commandant of the
Dear Mr. Duncan: United States Coast Guard.
In your letter re uesting an opinion from this office
you ask whether Subsection ?d), Section 7 of Article 1722a,
The Water Safety Act, is constitutional.
Section 7, Article 1722a of Vernon's Penal Code, Acts
1959, 56th Legislature,chapter 179, page 369,statesin part:
"(d) Every motorboat or vessel shall have
aboard one life preserver, buoyant vest, ring
buoy or buoyant cushion of the type approved by
the Commandant of the United States Coast Guard
in good and serviceablecondition for each per-
son on board.
"(e) No person shall operate or give,per-
mission for the operation of a vessel which is
not equipped as r$quired by this Section or modi-
fication thereof.
Section 14 of the Act prescribes penalties as follows:
"(a) Every person who violates orfails to
comply with any provision of this Act, ,shallbe
guilty of a misdemeanor.
"(b) Every person convicted of a misdemeanor
for which another penalty isnot .providedshall be
:
Honorable J. 0. Duncan, Page 2 (WW-1001)
punished by a fine of not less than Ten Dol-'
lars ($10) nor more than Fifty Dollars ($50)."
In our opinion, these provisions are constitutional,
for the following reasons.
Subsection (d) undertakes to adopt by reference cer-
tain provisions of federal law, namely, the regulations
issued by the Commandant of the United States Coast Guard,
In discharge of his official duties, approving certain types
of water safety devices. We must first determine whether
Subsection (d) was intended to include devices approved after
the effective date of Article 1722a, for while the Legislature
is competent to adopt existing provisions of federal law,
an attempted adoption of prospectiveprovisions of federal
law, whether statute or administrativeregulation,is uncon-
See State v. Urauhart, 50 Wash.
and cases cited therein; Santee
Mills v. Query, 122 S.C. 115 S.E. 202 (1922); Brock v.
Superior Court, 9 Cal. 26 291, 71 P. 2d 209,(1943); Fla. Indus-
trial Commissionv. PeninsularLife Ins. Co., 152 Fla. 55, 10
but Bee People v. Goldfogle, 242 N.Y. 277,
Ex Parte Lasswell, 1 Cal. App. 2d 183,
In Texas the constructionof a so-called
as with other questions of~statutory
construction,Is a matter of ascertaininglegislativeintent.
Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927).
Since the statute does not'expressly resolve the question,
and since the Legislature will be presumed not~,tohave in-
tended to contravene the Constitution,County School Trustees
v. Edna IndependentSchool Dist., 9 S.W.2d 506 (Civ. App.
1928I, affirmed 34 S.W.2d 860 (Corn.App. 1928); Santee Mills
v. uery, supra, weeconclude that subsection (d) must be
construed as including only those types of water safety de-
vices approved by regulationsof the Commandant in effect
at the time of its enactment. See Santee~Millsv. Query,
.ewr&; Fla. Industrial Commissionv. State, 155 Fla. 772,
21 so. 2d 5gg (1945). Subsection (d) is therefore not uncon-
stitutionalas a delegation of legislativepower; its refer-
ence to types of water safety devices approved by the Comman-
dant serves merely to set forth the class of water safety
devices required to be carried aboard in order to avoid the
penalties of Section 14. State v. City of Austin, et al,
Honorable J, 0. Duncan, Page 3 (WW-1001)
331 S.W. x1 737,-Tex.- (lg6o).l
%his case involved the constitutionalityof Article
6674w-4, which provides for reimbursementby the State to
utilities of the expense of relocating facilities of the
utility located on public rights of way when such reloca-
tion is necessitatedby the improvementor constructionof
certain designated interstatehighways, provide: that "such,
location Is eligible for Federal participation. Acts 1957,
55th Legislature,page 724, Chapter 300, Sec. 4A. The Supreme
Court noted in its opinion that this Act was evidently passed
In order to take advantage of the provisions of the Federal-
Aid Highway Act of 1956, which authorizedpayment of Federal
funds to the states as reimbursementfor expenses of utility
relocation,so long as payment by the State to the utility
would not violate State law or any legal contract between the
utility and the State. $e statute,alsoprovided that the
term 'cost of relocation was to refer to an amount calculated
in a specifiedmanner, 'and otherwise as may be fixed by re-
gulations for Federal cost participation." The Court rejected
the contention that the statute was an unconstitutionaldele-
gation offlegislativepower to the United State, its Congress
and agencies, stating:
I,
. . . A change in the percentage of Federal
participation will naturally affect the amount
which the state receives by way of reimburse-
ment, but will not alter in any way the obliga-
tion of the state to the utilities. No part of
the expense will be paid by~the state, of course,
if the relocation is not eligible for Federal
participation,but in making this provision the
Legislature was simply establishinga class of re-
location projects for which the utilities will be
entitled to reimbursement. It is our opinion that
the classificationis reasonableand that the law,
is not unconstitutionalas a delegation of legisla-
tive power.'
The question of whether Article 6674w-4 was intended to adopt
future provisions of federal statutes or administrative,,.regu-
lations was not discussed. We do not believe, howe,ver,that
this opinion is properly read as holding that such an effect
was intended by the Legislature (but that the Article so con-
strued is neverthelessnot an unconstitutionaldelegation of
power to the federal government). We take this view notwith-
standing the language in the opinion regarding future changes
(See Footnote No. 1 continued at the bottom of next page.)
Honorable J, 0. Duncan, Page 4 (WW-1001)
Even though the Statute is notanunconstitutional
delegation of power, the membership of this class of water
safety devices must be ascertainablewith reasonabledefin-
iteness and certainty if the Statute is to withstand an
attack as insufficientlydefinite to afford due process of
law. Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d
446 (1942), answers to certified questions conformed to,
166 S.W.2d 191 (Civ. App. 1942). As to this point, a
referenc,eto the regulationsof the Commandant raises some
initial doubt. In the first place, Section 7 of Article
1722a requires 'one life preserver, buoyant vest, ring buoy
or buoyant cushion of the type apar'ovedby the Commandant
of the United States Coast Guard. Literally read, the
Statute contemplatesan approval by the Commandant of one
type of each of the four kinds of water safety devices men-
tioned. In fact, Coast Guard regulationsprovide~for the
approval of an indefinite number of types of life preservers,,
buoyant vests, ring buoys, and buoyant cushions. 46 C.F.R.
160.002-7, 160.00 -7, 160.004-7, 160.005-7,16o.oog-7,
160.047-7, 160.042-7, 160.049-7, 160.050-7,160.052-q. Under
these regulations,the basic requisite for approval of a
type of water safety device of one of the four kinds mentioned
in Section 7 of Article 1722a is that the type submitted for
approval meet Coast Guard specificationsfor devices of its
kind (whether life preserver, buoyant vest, ring buoy, or
buoyant cushion), material (whetherkapok, cork, balsawood,
fibrous glass, or unicellularplastic foam), and intended
use (some specificationsare~for devices foruse 'onmerchant
vessels, others for devices for use on motor boats, still
others for devices to be used on "motor boats of classes A,
1, or 2 not carrying passengers $or~hire"). As of the
effective date of Article 1722a, furthermore,there were
many types of water safety devices of each of,the four general
kinds mentioned in that Article which had been approved by the
'(Cont'd.) in the percentage of federal participationin
meeting the expense of utility relocation projects. For
the statute did not make reimbursementof the utility con-
ditional upon a project's eligibilityfor federal partici-
pation in any given percentage,but only up,onits eligibility
for federal participation. It adopted no Federal provisions,
whether present or future, regarding the percentage of Federal
participation.
2Ninety days after May 12, 1959.
Honorable J. 0. Duncan, Page 5 (WW-1001)
Commandant,each type having been found to meet the basic
specificationsfor devices of its general kind. See, e.g.,
1959 Federal Register 1871 f.f., Notice of United States
Coast Guard of Approval and Terminationof Approval of Equip-
ment, Installations,or Materials and Change in Name and
Address of Manufacturers,March 10, 1959.
Since a Statute is not to be held unconstitutionalif
it is subject to any other reasonable construction,State v.
City of Austin, su ra; see TraDD v. Shell 011 Co., 145
323, 198 S.W. zdT%-(1g46) , we conclude that it was the
intent of the Legislature that the carrying of a life pre-
server, buoyant vest, ring buoy, or buoyant cushion of m
of the types approved as of the effective date of Article
1722a would satisfy the requirementsof Subsection (d) of
Section 7 of that Article. The requirementsof the Statute
thus may be precisely and definitely ascertained,so as to
remove any question of its constitutionalityin this respect.
The fact that the Statute is not unconstitutionalas a
delegation of legislativepower or as an insufficientlydefinite
penal law does not, of course, preclude the possibility of un-
constitutionalityon other grounds. State v. City of Austin,
sum-q, held, in addition to the holding already cited, that a
statute limiting the class of utility relocationprojects en-
titled to be undertaken at state expense to those which under
Federal law would entitle the state to a reimbursementfrom the
Federal Government was not an unreasonableclassification. 331
S.W.2d 737, 746. In the case of the present penal statute,
however, we are concerned not with privileges dispensed by the
Legislature,as to which the Constitutionrequires only that
they be distributed without arbitrary discrimination,but ather
with rights of person and property, which the ConstitutionT pro-
tects against arbitrary deprivationby the state. A legislative
restrictionupon such rights imposed by the State in the exercise
of its police power is arbitrary and unconstitutionalunless it
bears a reasonable causal relationshipto the ends sought to be
achieved and unless the ends themselves fall within the scope of
the legitimate concern of the State for the protection of the
health, safety, or morals of the public. American Federation of
Labor v. Mann, 188 S.W.2d 276 (Civ. App. 19451, no writ history.
s. S. Constitution,Amendment XIV; Texas Constitution,
Article I, Section lg.
Honorable J. 0. Duncan, Page 6 (WW-1001)
We feel that there can be no.questionbut that the
State may properly enact legislationdesigned to promote safety
in the use of boats by private persons. The.questionis whe-
ther making it a penal offense to operate a,,boatwithout a life
preserver or other water safety device of the type approved by
the Commandantof the United States Coast Guard tends toward the
achievementof this end with reasonable certainty and effective-
ness. The Commandant of the United States Coast Guard, a high
]iederalofficial, is under a general duty by Federal law to
. . . promulgate and enforce regulationsfor,the promotion of
safety of life and property on the high seas and on,,waterssub-
ject to the jurisdictionof the United States . . . 14 U.S.C.,
Section 1. At the time Article 1722a was enacted, furthermore,
the Commandanthad various specific duties with respect to formu-
lating minimum standards of approval for many kinds of water
safety devices, including the four kinds mentioned in that Arti-
cle, 46 U.S.C., Sections 390b, 481, 526e, 526p,'and had formulated
and published many su;hCs~hdards In detail, frequentlyrevising
and amending them. Subsection Q, Specifications.
While public officials aie't& invariably fair, diligent, and
efficient in the discharge of their duties; it is reasonably
probable, and will be presumed, that the Commandant of the Coast
Guard has met this standard. This being the case It is also
reasonablyprobable that the requirementthat boats be equipped
with safety devices of the type approved by the Commandant will
result in the protection of the life and limb of ~membersof the
public; this, in our opinion, is all that the'Constitutionre-
quires.
Consequently,we conclude that Subsection (d), Section
7 of Article 1722a, Vernon's Penal Code, is constitutional.
SUMMARY
Subsection (d), Section 7 of Article
1722a, Vernon's Penal Code, is con-
stitutional.
Yours very truly,.
WILL WILSON
Attorney General of Texas
wExr%w
Assistant
LH:mm/hmc
.
Honorable J. 0. Duncan, Page 7 (WW-1001)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Ben Harrison
Marietta Payne
Arthur Sandlln
Iola Wilcox
Joe Osborn
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbltt