Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERA%
OF ?l3cKAs
AUSTIN. TaxAa 76711
March 18. 1974
The Honorable Clayton T. Garrison Opinion No. H- 260
Executive Director
Texas Parks & Wildlife Department Re: The licensing system
John H. Reagan Building for the use of aircraft
Austin, Texas 78701 in the control of
predator animals
Dear Mr. Garrison:
You have requested our opinion on questions arising out of an
apparent conflict between two statutes passed by the 63rd Legislature.
Both relate to the use of aircraft for predator animal control. The
first bill passed was Senate Bill 251, published as Acts 1973, 63rd Leg.,
ch. 20, p. 23. The second was Senate Bill 44, published as Acts 1973,
63rd Leg., ch. 147, p. 348. Both can be found in Vernon’s Texas Penal
Code Auxiliary Laws in the note to Article 901.
S. B. 251 was enacted by the Legislature on March 22, 1973, and
applies to eight named counties. S. B. 44 was subsequently enacted on
May 18, 1973, and applies to 155 named counties, including the eight
counties to which S. B. 251 applies. However, S. B. 44 includes no
express repealer provision, either as to S. B. 251, or to other laws in
general.
The rule in regard to construction of acts of the same session on
the same subject is that the whole must be taken and construed as one
act, and to make a later provision repeal a former, there must be an
express repeal or an irreconcilable repugnancy between them. Wright
v. Broeter, 196 S.W.2d 82 (Tex. 1946); Cain v. The State, 20 Tex. 355
(1857); 53 Tex. Jur. 2d Statutes $105 (1964); IA Sutherland, Statutory Con-
struction § 23.17 (4th ed. 1972).
Each of these Acts is complete within itself in establishing a
system for the regulation of hunting predator animals from aircraft.
p. 1217
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The Honorable Clayton T. Garrison, page 2 (H-260)
Upon comparison, we note differences between the two Acts in the
following particulars: The definitions of “predator animals” differ,
the conduct made punishable differs, the ranges of fines which may
be imposed differ, the information to be contained in an affidavit to
accompany a permit application differs, the information which may
be required to be included in the quarterly report differs, the type of
notice and hearings pursuant to issuance of regulations differs and
one Act authorizes an annual fee while the other does not. There are
eight counties to which both Acts apply.
We cannot conceive of any interpretation of the two Acts by
which they could be reconciled and harmonized as to the eight counties
covered by both Acts. We conclude that the two Acts are in irrecon-
cilable conflict.
When two acts of the same session of the Legislature cannot be
harmonized or reconciled, that statute which is the latest expression
of the will of the ‘Legislature will operate to repeal the prior statute of
the same session to the extent of any conflict in their terms. Ex parte
de Jesus de la 0, 227 S.W.2d 212 (Tex. Crim.App., 1950); Wright v.
Broeter. 196 S.W.2d 82 (Tex. 1946); Townsend v. Terrell, 16 S.W.2d
1063 (Tex. 1929); Stevens v. State, 159 S.W. 505 (Tex. Crim.App. 1913);
Parshall v. State, 138 S.W. 759 (Tex. Crim.App. 1911); 53 Tex. Jur. 2d
Statutes 5 105 (1964); IA Sutherland, Statutory Construction $ 23.17 (4th
ed. 1972); Attorney General Opinion V-990 (1950).
It is our opinion that S. B. 44, the 155-county Act impliedly
repealed in its entirety the eight-county S. B. 251 which had been
enacted earlier in the sarne session. Therefore, the Department is
to be guided by the requirements of the later legislation in all respects.
Our determination is supported by the deliberations, of the House
subcommittee when it considered S. B. 44. There it was indicated that
the 155-county bill was intended to supercede the eariler legislation.
See the recording of the April 5, 1973, meeting of the Wildlife Subcom-
mittee of the House Committee on Environmental Affairs on file with
the House of Representatives.
pe 1218
The Honorable Clayton T. Garrison, page 3 (H-260)
SUMMARY
The licensing system for the use of aircraft
in the control of predatory animals is controlled by
Acts 1973. ch. 147, p. 348, which repealed Acts
1973, ch. 20, p. 23.
Very truly yours,
Attorney Gemral of Texas
APTRRVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1219