Untitled Texas Attorney General Opinion ( 1955 )

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AI1OPIIECI
naFxaar,.
August 23, 1955
Honorabie Weldon Hart ,Opinion No, S-169
Chairman and Executive Director
Te.xav Employment Commission Re: Constructlon of
Austin, Texas Senate Bills 44 and
286, 54th Legislature,
amending Unemployment
Dear Mr. ‘Hart: ” Compensation .Act 0
You have requested ad,vice as’to ~the effect of
the Legislature’s having passed both Senate Bill No. 44
and Senate Bill No. 286 at Its last session. Each of
these bills’pur&rts to amend Subsection’(d) of Section 5
of the Texas Unemployment Compensation Act, as amended
(Ch. 482, Gen: and Spec. Laws of Texas, 44th Leg. 3rd
Called Session, 1936, as amended),,but S.B. No. 286 pur-
ports to amend other sections of that Act as well.
Senate, Bil; No. 44 ~88 finally passed on May 31,
1955, and S.B. No. 286 was finally passed on June 7, 1955.
The Governor approved S.B~. No. 44’on June 22, 1955, and
then approved S.B. No. 286 on June 24, 1955.
An examination of the language ,of the two bills
discloses irreconcilable conflict, insofar as the amend-
ment of Subsection d
( 1; of Section 5 IS concerned. Senate
Bill No. 286 makes Ifallure, or refusal to croav a picket
line or refusal for any reason during the continuance of
such labor dispute to accept and perform his available
and customary work” a disqualifying circumstance ; whereas,
S.B. Noi 44 contains no such language. Senate Bill No,
286 contains no provision ~deallng with burden of proof;
whe~reav S.B. No. 44 does contain such a provision. In
addition, there are many~other differences in the amenda-
tory language of the two .bllls.
These facts’, standing alone, would be sufficient
to require that we’ adv$ve youa that~ the terms of S.B. No.
286 ss t.hey amend Subsection ,(d) af Section 5 of the Act,
are controlling, and, wil-I “prevail.. over, the ‘provisions of
S.B. ,No. 44,, vSnce the rule is that :~ ‘,
“Where two acts passed a,t the same ‘sesvlon
of the Legislature’ cannot be reconciled by any
known rule, of construction, the first in time or
position must give way to the last, and the latter
act will stand as the final expression of the
legislative will .‘I
Honorable Weldon Hart, page 2 (S-169)
The authorities in sunnbrt of this rule are
discussed in our Opinion No. V-930, January 26, 1950,
which was affirmed by Ex parte De Jesus de La 0 154
Tex. Grim. 326, 227 S.W.2d 212 (1950) from whihh the
above quotation wav taken.
Senate Bill No. 286 contains an express repeal
provision which constitutes a clear statement of the pur-
poae of the Legislature to repeal all acts and parts of
acts in conflict with its terms. 39 Tex.Jur. 131. Such
wav not the case before the court In Ex Darte De Jesus
de La 0, vupra, There the later of the two acts contained
no express repeal clause but the court held that there ,wav
an implied repeal. The instant facts are therefore strong-
er than the facts which were before the cou$t in the cited
cave.
In,connectlon with your inquiry about provisions
in S.B. No. 44 relating to burden of proof which are not
contained In later S.B. No. 286, it, is to be noted t,hat
the court in the cave cited had before it just vuch a
situation. The earlier act contained provisions foi? suv-
pension of sentence and for bond and forfeiture of bond;
whereas the later act did not, The court held:
“The two acts are In irtieconcilable con-
flict, and tkterefore the latter act, . , ,
being the latest exgrevslon of the legislature,
will prevail. . . . 227 S,,W. 2d 213.
Regardless of whether there IV actually an
irreconcilable conflict between paragraph (3) in S.B.
No. 44 and the express provisions of S.B. No. 286, it
is our opinion that the answer Co your inquiry revpect-
ing thlv paragraph would be the same. The ultimate
factor in determining whether a later amendatory act
repeal8 a former one Is whether the Legislature intended
the later act to be a substitute for all previous amend-
mentv to the portion of the vtatute under consideration.
Where two amendatory acts pavved at the vame vevvion
change different parts of the section being amended,
and each had as its purpose a change in that portion
only, the court8 have allowed the intermediate change
to stand even though it was not Included in the later
amendment* ,Peoule v. Lloyd, 304 111. 23, 136 N.E. 505,
; Gerdts v, Getidtv, 196 Minn. 599, 265 N.W.
g ;gg ; State v. Hindson, 40 Mont. 353, 1.06 Pac.
i i . However, where the history and clrcuinstances
of enactment ihow that the Legislature intended by a later
act to revise the subject matter of a farmer one and to
* ,-
.
Honorable WeIdon Hart, page 3 (s-169)
make it replace all prior enactment6 on the subject, the
subsequent statute will repeal a prior one though not
repugnapt;‘: 10: all Its ~provlslona. ee ca8e8 alted In
34 Texas Digest, Statutes, Seq. 161 s I). While ~the pre-
sumption against Implied repeal le stronger where two,
Independent acts are passed at the came seaalon, this
preaumptlon must give way to the demonstrated leglsla-
tlve intent to make the later enactment embrace the full
subject matter to which it relates.
The amendments to Subeectlon (d) .ln both these
bills relate to the came purpose and eubjeat~matter.
The hlstor of the bills in the Legislature ahows that
S.B. No.~ 25 6 was enacted wlth~.full consciousness of the
ohanges embraced in S.B. No. 44. In ,the course of enact-
ment S.B, No. 286 wee changed 80, 8~8 to adopt, in identical
language, many of the ahanges which S.B. No, 44 made in
the existing law. One of the House amendments to S-B.
No. 286, in which the Senate refused to concur, was a
provision that S.B. No, 286 should not be construed as
having the effect of repealing, altering, modifying or
making any change in the provlelons of S.B. No. 44.
See Dally House Journal,,54th Leg,, p. 3276. Many other
circumstances’show that the conference report on S.5. No.
286, which was prepargd and adopted,after adoption of
the conference report on S.B. No. 44, was Intended as
the final, complete expreealon of 811 the changes which
were to be embraced in Subsection (d),
You ere therefore advlaed that the terma of
S.B. No. 286 muat stand ae the final expression of the
legli%lat :lv@ will and that the terms of 8.8. No. 44 must
giie way.
There being lrmconcllable conflict between
the terms of S.B. No. 44 and S.B. No. 286, 54th
Leglelabure, amending Subsection (d), Section 5
of the, Texaa Unemployment Compensation Act, S.B.
NO. 286, the latest exDreaalon of the Legislature,
will prevail over S.B.-No. 44,
APPROVED: Yours very truly,
L. P. Loller
Taxation Dlvlalan
Mary K. Wall
Reviewer
Asalatant
Honorable Weldon Hart, page 4 (S-169)
J. A. Amls, Jr.
Reviewer
WI11 D. Davis
Special Reviewer
Davis Grant
Special Reviewer
Robert S. Trottl
First Assistant
John Ben Shepperd
Attorney General
SL:amm