Untitled Texas Attorney General Opinion ( 1950 )

EATTOR~EY'GENERAL
‘QDF TEXAS ‘.
ALUwnN 11. TEXAS
PRICE DANIEL
ATTORNEYCENERAI.
January 26, 1950
Honorable A. C. Winborn
District Attorney ul/&,-xJ7
Houston, Texas Opinion No, V-990 *1c/
ZLLd,
212 (MS0 )
Re: The status of H-B, 656 and
S.B. 425, Acts Slst Leg., 1949,
relative to contributing to child
delinquency in view of apparent
Dear Mr. Winborn: iaconeistency between them.
Your request for an opinion relates to the etatus of H.B.
656 and S.B. 425, Acts 51st Leg., R-S,, 1949,‘Chaptera 500 and 488,
pages 924 and 910, respectively, both of which undertook to add to
and strengthen the law for punishment of those who encourage or
contribute to child delinquency. The general purpose of the two
bills, in so far as they relate. to child delinquency, is the same. But
so many details and special provisions of the two bills are different
that both bills on the same offense earnrot stand., You ask which, if
either, of the bills is now effective.
H.B, 656, which contained an emergency clause, was fi-
nally enacted by the Legislature on June 21, 1949, It was subsequently
approved by the Governor on June 29, 1949, and reads as follows:
‘Section 1. In all cases where any child shall be a
delinquent, dependent OP neglected child, as defined in
the Statutes of this State, irrespective, of whether any
formal proceedings have been had to determine the status
of oneh child, the parent or parents, legal guardian, or any
person having such custody of such child, or any other
person or persons who shall by any act encourage, cause
or contribute to the dependency or delinquency of such
child, o,k who acts in conjunction with such child in the I
acts which cause such child to be dependent or delinquent,
shall be guilty of a misdemeanor, and upon conviction
shall be punished by fine not exceeding Five Hundred Dol-
lars ($500), or by imprisonment in the county jail for not
more than six (6) months, or by both fine and imprison-
mentg provided, however, that the court in which the case
is heard may suspend the sentence for violation of the
provisions of this Act, and impose conditions upon the de-
fendant as to his future conduct, and may make such sus-
pension dependent upon the fulfillment by the defendant ,of
,
Hon. A. C. Winborn, Page 2 (Opinion V-990)
such conditions, and in case of the breach ‘of such con-
ditions or any part of them, the court may impose sen-
tence as though there had been no such suspension. The
court may also as a condition of such suspension, re-
quire a bond in such sum as the court may designate,
to be approved by the Judge requiring it, to secure the
performance by such person of the conditions placed
by the court on such suspension; the bond by its terms
shall be made payable to the County Judge of the county
in which the prosecution is pending, and any money re-
cefv@d from a breach of any of the provisions of the bond
shall be paid into the county treasury. The provisions
of law regulating forfeiture of appearance bonds shbll
govern so far as they are applicable. Exclusive juris-
diction of the offense defined in this Act is hereby ccn-
ferred on Juvenile Courts, in accordance with the pro-
visions of law establishing such courts.
““Sec. 2. By the term ‘delinquency,’ as used in this
Act, is meant any act which tends to debase or injure
morals, health or welfare of a child, drinking oe in-
toxicating liquor, the use of narcotics, going into or
remaining in any bawdy house, assignation house, dis-
orderly house or roadhouse, hotel, public dance hall,
or other gathering place where prostitutes, gamblers
or thieves are permitted to enter and ply their trade,
going into a place where intoxicating liquors 0~ narcotics
are kept, drunk, used, sold or given away, or associating
with thieves and immoral persons, or enticing a minor
to leave borne or to leave the custody of its parents,
guardians or persons standing in lieu thereof, without
first receiving the consent of the parent, guardian or
other person, in addition to all of the other acts which
any other laws now in effect define to be delinquency or
which create any child a delinquent,
“Sec. 3. Nothing contained in this Act shall be con-
strued to repeal or affect any other Statutes regulating
the powers and duties of Juvenile Courts; but Srticle 534
of the Penal Code is expressly repealed.”
S.B. 425, which purported to amend Art. 534 of the Penal
Code, was finally enacted by the Legislature on June 22, 1949, and
was approved by the Governor on June 2 9, 1949. This Act was effective
ninety days after adjournment of the Legislature or on October 5, 1949.
It reads as follows:
“Section I. That Article 534 of the Penal Code of
the State of Texas, as amended by Acts 1907, page 209;
Hon. A. C, Winborn, Page 3 (Opinion V-990)
Acts 1918, 4th Called Session, page 125; Acts 1929, 41st
Legislature, Chapter 103, be and the, same is hereby
amended so as to hereafter read as follows:
” ‘When any person is an habitual drunkard or an
addict to cocaine, morphine or other narcotics, and
in all cases where a child is caused to become a de-
linquent child or a dependent and neglected child under
the age of seventeen years, whether previously con-
victed or not, the parent, guardian or person having
the custody of, or the,,porson responsible for such child,
habitual drunkard or narcotic addict, or any person who
by any act encourages, causea, acts in conjunctionwith,
or contributes to the delinquency, dependency or the
neglect of such child, habitual drunkard’or narcotic ad-
dict, or who shall in any manner cause, enaourage,. act
in conjunction with or eontribute to the delinquency,
dependency or the neglect of any such child under the
age of seventeen years, or habitual drunkard or nar-
cotic addict, shall be fined not exceeding Five Hundred
($500) Dollars or be imprisoned in jail not to exseed
one year, or both. By the term ‘*delinquency” as used
herein is also meant any act which tends to debase or
injure the morals, health or welfare. of such child,
habitual drunkard or naraotic addict, and includes
drinking intoxicating liquor, the use of narcotias, go-
ing into or remaining in any bawdy house, assignation
house, disorderly house, or road house, hotel, public
dance hall where prostitutes, gamblers or thieves are
permitted to enter and ply their trade, going into a
place where intoxicating liquors or narcotics are kept,
drunk, used or sold, or associating with thieves and
immoral parsons, or oause them to leave home or to
leave the custody of their parents or guardian or per-
sons’ standing in lieu thereof without first receiving
their consent or aga~inst their will, or who by undue in-
fluence, cause such habitual drunkard or .nascotic ad-
d ict to unlawfully cohabit with, any person known to them
to be an habitual drunkard or narcotic addict, and any
other act which would constitute sucha child a delin-
quent or cause it to become a delinquent by committing
such act, The fact that a child has not been declared a
delinquent child or a neglected or dependent child, as
defined by the Statutes of this State, shall not, be a de-
fense under this Act,” n
It is readily apparent that even though the two acts are in
emateria ,they are inconsistent with eaoh other in various pro-
visions, including those pertaining to jurisdiction, punishment, author-
ity to suspend sentence, and requiring bond. It is also to be observed
Hon. A. C. Winborn, Page 4 (Opinion V-990)
that the Act passed June 22, 1949 (S-B. 425) did not contain a pro-
vision expressly repealing the Act passed June 21, 1949 (H.B. 656).
When two acts on the same subject passed at the same
legislative session are in irreconcilable conflict, and the first
contains an emergency clause but the second does not, and both
acts are approved by the Governor on the same day, which act,
if either, is controlling?
It is stated in 1 Sutherland Statutory Construction (3rd
Ed. 1943) 484, Sec. 2020 that:
““In the absence of an irreconcilable conflict be-
tween two acts of the same session, each will be con-
strued to operate within the limits of its own terms
in a manner not to conflict with the other act. w-
ever. when two acts of the same session cannot be
harmonized or reconciled, that statute which is the
latest enactment will operate to repeal a prior statute
of the same session to the extent of any conflict in
their terms . e D .M (Emphasis ours)
The same rule is announced in 59 Corpus Juris 928. Statutes,
Sec. 533, wherein it is said that:
00
0 0 I)where two acts relating to the same subject
matter are passed at the same legislative session, there
is a strong presumption against implied repeal, and
they are to be construed together, if possible, so as to
reconcile them, give effect to each, and thereby avoid
an implied repeal, rather than to infer that one destroys
the other; but, if the two are irreconcilable, the one
which is the later expression of the legislative will or-
dinarily prevails over, and impliedly repeals, the other
PO
90e*
The rule is stated in 39 Tex. Jur- 147, Statutes, Sec. 79, as
follo”s:
P
* D * But where two acts passed at the same ses-
sion cannot be reconciled by any known rule of con-
struction, the first in time or position must give way
to the last, which will stand as the final expression of
the legislative wiLw
The above rules have been followed in this State by both the
Supreme Court and the Court of Criminal Appeals.
In Townsend v. Terre& 118 Tex. 463, 16 S.W.2d 1063 (1929),
the Court had before it the question as to which of two acts ppaaed at
.
Han, A. C, Winborn, Page 5 (Opinion V-990)
the same session of the Legislature was controlling. The first act
was approved March 22, 1927. The second ‘act was approved March
25, 1927, The two acts were “‘thoroughly inconsistent and irrecon-
cilable.‘” In holding that the last act prevailed the court said:
““It will be observed that in the amendment approved
March 25, 1927, there is no express repeal of the abolish-
ing Act approved March 22nd. It is well settled that re-
peals by implication are not favored and that all acts and
parts of acts inparimateria are to be construed as a
whole and interpreted in such manner as that all may
stand where such may reasonably be done. It is only
where acts are so inconooiatent as to be irreconcilable
that a repeal by implication will be indulged. If there
exists such conflict, then there is a presumption of the
intention to repeal all laws and parts of laws in conflict
w$tb the clear intention of the last act. This is neces-
sarily true where both acts cannot stand as valid enact-
m ents. I0
Again in Wright v. Broeter, 145 Tex. 142, 196 S,W.2d 82
(1946) the Court speaking through the present Chief Justice said:
““There is no better statement of the rule of law ap-
plicable in the construction of two acts of the same ses-
sion of the legislature than that made by Justice Wheeler
in the early ca@e of Cain v. State, 20 Texas 355, This
language is taken from that opinion:
* ‘* * *The rule is, that in the construction of acts
of the same session, the whole must be taken and con-
strued as one act, and to make a latter provision repeal
a former, there must be an express repeal, or an irre-
concilable repugnancy between themi and then the latter
“ill control. * s *
Cm‘* * *nothing short of expressions so plain and
positive as to force upon the mind an irresiat~ble con-
viction, or absolute necessity, will justify a court in
presuming, that it was the intention of ths legislature
that their acts passed at the same session, should abro-
gate and annul one another, The dacent respect due a
co-ordinate department of the government, would seem
to forbid that such a presumption be indulged by the court.
As we had oaaasion to say in Neil1 v, Keees, “it would not
be a reasonable mode of construing aots of the legislature,
so to construe them as to maka one act repeal another
passed at the same session. It cannot-be suppose that it
was their intention that acts thus passed should abrogate
and repeal one another.” 5 Tex, 33,’
Han, A. C. Winborn, Page 6 (Opinion V-990)
“‘That rule has been consistently followed. McGrady
v, Terrell, 98 Texas 427, 84:S.W. 641; Southern Pacific
Co. v, Sorey, 104 Texas 476, 140 S.W. 334; Garrison
v. Richards, 107 SW. 861, error dismissed; 39 Texas
Jur;# Statutes, Se&ion 78, and authorities cited. In order
to uphold both acts the first act may be regarded as an
exception to the second. Cain v. State, supra. Under
the rule requiring that the two acts be construed to-
gether as one, we are not concerned with the question
of whether or not any provisions in one may be found
to be repugnant to corresponding provisions in the other.
Our concern in this case is limited to a consideration of
whether or not there is repugnancy between the particular
provisions. of the acts with reference to service of pro-
cess, If it should be granted, as contended, that certain
provisions of the second act are repugnant to corres-
ponding provisions of the first, it would not follow that
the whole of the first be stricken down, for the second
act would repeal the first act only to the extent of the
repugnancy. Any provisions in the first act not repug-
nant to provisions of the second act would remain as
valid portions of the two acts considered as one. As
stated in Garrison v. Richards, supra, “Where two acts
are passed at the same session of the Legislature they
should be construed together as one act, and, if possible,
so that both may stand. McGrady v. Terrell, 98 Texas
427, 84 SW. 641; Lewis’ Suth. on Stat. Cons&, Sec. 268.
But where the two are repugnant and irreconcilable, the
one approved last repeals the other ----- to the extent of the
repugnanc)r.P m
In Stevens v. State, 70 Tex. Grim, 565, 159 SW. 505 (1913)
the Court held that:
66
0In the case of Chile6 v. State, 1 Tex. App. 31,
0 D
this court said: ‘The two acts, being passed at the
same session of theiLegislature, ought, if possible,
to be conetrued together, so that both might stand as
one embodiment of the legislative will. But it will be
perceived that these two acts, though passed at the
same session, cannot, by any known rule of conatruc-
tion, be so reconciled as that both may stand: and, in
case there is such repugnance between the two as that
one must give way, the rule is the last must stand as
an expression of the will of the Legislature.’ When the
Supreme Court had jurisdiction in criminal matters, in
the case of Cain v. State, 20 Tex. 359, Judge Wheeler,
speaking for the court* said “The, rule is that, in con-
struction of acts of the same session, the whole must
be taken and construed as one act, and, to make a latter
Hon. A, C. Winborn, Page 7 (Opinion V-990)
p~ovisiow repeal a former, there must be an exprese
repeal or an irreconcilable repugnancy between them,
and then the Ratter winn eontPol*” --citing 3 Moore, 77;
SedgwGck 0n Stat. & Con&, Law, 410,‘”
To the game effect are the holdings in Parehall v. State,
62 Tex, Grimm, 177, 136 S,W, 759 (1911); Robertson v. State, 70 Tex.
C1pim. 307, 159 S.W. 713 (1913); and Ex Parte Nitsche, 170 S,W, 1101
(1914).
We rmowpass to a conoideaation of whether the fact that
H.B. 656, because 0% ite emergency clause, and therbiore effective.
prior to S,B, 425, in any manner changes, or calls for an exception
to the above announced rule of statutory construction. We think not.
Although we have been unable to find any Texas case where the facts
reflect that this exact point was presented and passed upon, it is
well e:stabRished in other jurisdf..ctfons that inasmuch as the latest
expressiom of the Pagislative will prevails, the statute last passed
will prevail over a etaUuhe passed prior to it, irrespective of wheth-
er the prior statute takes effect before or after the later statute,
People v, Kramea, 328 HU. 512, 160 N,E. 60 (1928); Newbauer v. State,
200 %nad.118, I.61 N,E, 826 (1928): State v. Schaumbueg, 149 La. 470,
89 540~536 (192n)z State v, Mamzurr, 34 NJ& 378, 281 P. 454 (1929)i
Winsllow v, FBeiechner, 112 Ore, 23, 228 P. 101, 34 A.L.R. 826 (1924)~
Buttorff v. York, 268 Pa, 143, PPOAt& 728 (1920),
The abow rule warr’stated and followed %n Attorney Gen-
eral’aj Ophbn No. O-5891, daUmlMay 30, 1944.
Your atUent%onw%e invited to the bacts in State vs Mar~um,
oupra, which 5~ our opidann are parallel with those BOW under con- ,.
sidesration, Chaptara 107 and 128, Laws (1905) were:botb enacted by
the same New Mla~xieo Legislative Assembly and thereafter applrowd
by UhhaExaeutive Deparbnent on Uhe same day. Chapter 107 took a%-
feet !mme?diatePy upon ita approval, whereas Chapter 128 took effect
sixty days a%ter approvaL hn holding that the statute which took effect
later clcanatrpdnd, the Cbmt aaid:
“When it 68)imnnpoaaaibk mtirely to hammnize Uwo
stat&se wh%& aw in pari matada, UhaUtaking the later
effect is contnsUim~nng,36 Cye, P15B. The rule applies to
Uwo hatatutes approvsd, as wes-4 ti40cs WA the 6)ame dab.
Harriwgtona v. Hemingtom”e Eest., 53 Vt, 649; Swift & Co.
v. Some, 142 Miss, 660, IlO7So, 881; Nayha v, Bd, of
E&co, 216 Ky* 766, 288 S.W. 690, Article 1 took effect
at itm passage? Lawo 1905, a0 107, 0 7, Article 2 took
e%%kt 60 dayr aff@r Bte passage. Laws R905, e. 128, 8
24, It $&en-m,there%om~ tinat, as regards the matUe% harxe
hvoIbadB asUfcla! R ham bean repealed, and the prosecution
6ains.~
Hon. A. C. Winborn, Page 8 (Opinion V-990)
We also call attention to People v. Illinois Central Ry.
Co,, 295 111. 408, 129 N.E. 66 (1920) wherein it is said:
* a 0 The first amendment mentioned above was
u
approved June 21, 1919, and the last-mentioned amend-
ment was approved June:30, 1919, and the question to
be here decided is which one of these two amendments
controls, Two acts that are passed at the same session
of the Legislature are not to be construed as incons
s&tent if it is possible to construe them otherwise;
but, where it is impossible to give effect to both acts,
the latest in point of time will prevail. Huston v. New-
gass, 228 111. 575, 81 N.E. 1127; People v. Wabash Rail-
road Co., 276 111. 92, 114 N.E. 552. See, also, Lambert
v. Board of Trustees, 151 Ky. 725, 152 S.W. 802, Ann.
Cas, 1915A, 180, and authorities cited in note. The
amendment approved June 21, 1919, was passed as an
emergency act, but there was nothing to indicate that
the other amendment, approved June 30, was passed as
an emergency, but the act approved June 30, being
passed later than the other, must be held, under the
authorities just cited, as the two acts are absolutely
inconsistent and cannot both be in force, to have been
intended to repeal the former act and must prevail
over the amendment approved June 21. . . ,*
Accordingly,.you are advised that S.B. 425, Acts 51st Leg.,
R.S, 1949, Ch. 488, p0 910, being the later of the two Acts under con-
sideration, is controlling and will prevail over the provisions of H.B.
656, Acts 51st Leg., R.S. 1949, Ch. 500, po 924.
SUMMARY
H.B. 656 and S.B. 425, Acts 5lst Leg., R.S. 1949,
Chapters 500 and 488, pp. 924 and 910, dealing with
the subject of child delinquency, were approved by
the Governor on the same day and were effective June
29, 1949, and October 5, 1949, respectively. The two
Acts are in conflict and cannot be harmonized, and
Hon. A. C. Winborn, Page 9 (Opinion V-990)
since S.B. 425 is the latest expression of the Legislature
it will prevail over H,B. 656,
APPROVED: Yours very truly,
Joe R. Greenhill PRICE DANIEL
F i r s t Assistant Attorney General
Price Daniel
Attorney General
By &z-Ad G Ned&
Charles D, Mathews
Executive Assistant
CDM:v