Untitled Texas Attorney General Opinion ( 1970 )

L .
OF TEXAS
Honorable J. R. Singleton Opinion No. M-675
Executive Director
Texas Parks and Wildlife Dept.
John II. Reagan Building Re: Are the Game Management
Austin, Texas 78701 Officers of the Texas
Parks and Wildlife Depart-
ment authorized under Ar-
ticle 1722a, Vernon's Penal
Code, to enforce a certain
Resolution of a.County Com-
Dear Mr. Singleton: missioners Court?
You~have inquired whether game wardens in your depart-
ment are authorized to enforce a Red River County Commissioners
Court resolution purportedly enacted under the provisions of
the Texas Water Safety Act, .Article 1722a, V.P.C. The resolu-
tion makes unlawful the Possession of rifles or pistols on,
over or within five hundred (500) feet of "Langford Lake"
near Clarksville, Texas.&/
1/ "It shall be unlawful for any person to possess
for the purpose of shooting, any rifle or pistol
of any kind or character on or over the waters
of. . .'Langford Lake'. . .in Red River County, and
the possession by any person of a rifle or pistol
within a distance of five hundred (500) feet from
the water of said lake shall be prima facie evidence
of a violation . e .
D . ,
"This Regulation is enacted under the provisions
of Section 19b of the Texas Water Safety Act, V.P.C.
1722a, and all provisions of this Section are intend-
ed to be consistent with said Texas Water Safety Act."
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Honorable J. R. Singleton, Page 2 (M-675 )
Undoubtedly, the Legislature may validly bestow such
-II -------- l
Legislative authority
authc as it sees fit upon the respective
countv Commissioners
county Commission--- Courts. cf. Tex.Const., Art.,V, Sec.
18; Canales vs. Laughlin,
Laugh 147 Tex. 169,.214 SW2d 451 (1948).
Sect'ion 19(b) of the Texas Water Safety Act authorizes Com-
missioners Courts to issue orders with respect to certain
lakes which either (a) designate specific areas for restrict-
ed use or (b) make rules and regulations relating to the
operation and equipment of boats.z/ Section 24(a) of*the
Act authorizes game wardens to act as enforcement officers
for the purposes of the Texas Water Safety Act.21 Thus,
we conclude that game wardens may enforce all Commissioners
Court orders properly issued in accordance with Section 19(b).
We have determined, however, that the resolution in
question is by nature a rule and regulation which plainly
21 "The Commissioners Court of any county, with
respect to public waters within the territorm
limits of the county but outside the corporate
limits of any incorporated city or town or po-
litical subdivision as contained in (c) below,
except lakes owned by an incorporated city or
town, is hereby authorized by order of the Com-
missioners Court entered upon its records to des-
ignate certain areas to be bathing, fishing, swim-
ming or otherwise restricted areas, and to make
such rules and regulations relating to the oper-
ation and equipment of boats as it may deem neces-
sary for the public safety, the provisions of which
are consistent with the provisions of this Act.”
r Emphasis Supplied/
3/ "All peace officers and game wardens of this
state and its political subdivisions shall have
and are hereby given authority as enforcement
officers for the purposes of this Act. ~ .I’
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Honorable J. R. Singleton, Page 3 (M-675 )
does not deal with the operation and equipment of'boats.31
The resolution must therefore be considered invalid as an
attempt to regulate subject matter not within the scope
of the legislatively delegated authority.
We recognize, however, the beneficent intent of the
Commissioners Court and the laudable purpose behind its
resolution. Enforcement of such a rule might result in
the preservation of human life. We have therefore given
detailed attention to the possibility that your department
might consider the resolution a de facto designation of
an "otherwise restricted area" wEhin the meaning of the
statute - the rationale being that the resolution desig-
nates the entire lake and five hundred (500) feet beyond
as an "area" in which the possession of rifles and pistols
is proscribed. We have concluded, nevertheless, that
should you so construe the resolution, the courts would
not uphold the resolution as being within the statutory
authority granted by Section 19(b).
First, the resolution does not necessarily constitute
a de facto designationof an "otherwise restricted area".
Apsication of rudimentary rules of statutory construction
seem to compel the conclusion that the Legislature did not
intend its delegation of authority to encompass restriction
of firearms. A settled rule of statutory construction is
that words used repeatedly in a statute will bear the same
meaning throughout unless a contrary intention appears.
cf. 53 Tex.Jur. 2d 220, Statutes Section 153. Section 18
of the Texas Water Safety Act, entitled "Restricted Areas"
clearly contemplates that "otherwise restricted areas"
means only those areas in which the operation of boats .is
4/ Webster's Third New International Dictionary
defines a "regulation"as:
11
. . 0 an authoritative rule or principle dealing
with details of procedure, especially one intended
to promote safety. . *; a rule or order having the
force of law issued by an executive authority of a
government, usually under power. . .delegated by
legislation.”
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Honorable J. R. Singleton, Page 4 (M- 675 )
prohibited or restricted./ Under this rule, the term
restricted areas" in Section 19(b) should be given the
same construction as Section 18.
Two other pertinent rules, exemplified by the Latin
phrases, Ejusdem-qeneris and Noscitur a sociis, would in-
dicate the same result. Ejusdem gene+smes if, after
an enumeration of Darticulars. there IS a sweeoinq clause
comprising all other things...The doctrine imports that
general words following an enumeration of particular or
specific things will be confined by construction to things
of the same kind. Section 19(b) reads as follows:
"The Commissioners Court. ~ .is hereby author-
ized. o oto designate certain areas tb be bath-
or otherwise resti-icted areas. . .I'
such like" and includes only others of like kind or cha>ac-
ter. cf. 53 Tex.Jur. 2a 221, Statutes 8155 and cases cit-
ed therein. Especially is this rule applicable where
statutes penal in nature are to be construed. Ex Parte
Muckenfuss, 107 S.W. 1131, (Tex.Crim., 1908)'; Ex Parte
Roguemore, 131 S.W. 1101 (Tex.Crim., 1910); Zucarr.oS.
State, 197 S.W. 982 (Tex.Crim., 1917). The Noscit:ur-- a
sociis doctrine reiterates that wherever the ext--.-
:ent of
_~
theass enumerated is doubtful or uncertain, the mean-
ing of a doubtful word may be ascertained by reference
to words associated with it. cf. 53 Tex.Jur. 26 221,
Statutes $154 and cases cited therein. Under either or
11 Restricted areas
"Section 18. No person shall operate a boat
within a water area which has been clearly marked
by buoys or some other distinguishing device as a
bathing, fishing, swimming or otherwise restricted
area by the Depa~rtment OF by a political subdivision
of the State; provided, that this Section shall not
apply in case of an emergency, or to patrol or res-
cue craft."
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Honorable J. R. Singleton, Page 5 (M-675 )
both doctrines, the conclusion necessarily follows that
the Legislature intended "otherwise restricted areas" to
pertain to areas in which traditional water activities
or sports are restricted. The possession or shooting
of firearms cannot reasonably be considered such an ac-
tivity. We therefore hold that the Commissioners Court
resolution does not constitute a de facto designation
of an "otherwise restricted area.=-
Secondly, even under the application ,of a theory
of a de facto designation , we note that Section 19(b)
requi=sthat Commissioners Court orders be "consistent
with the provisions of this ‘[TexasWater Safety] Act".
The "declaration of policy" contained in Section I of
the Act indicates that the scope of the Act is limitea
in purpose to the regulation of use, operation and equip-
ment of boats and to the promotion of uniformity of laws
relatingzeto., 6/ Section 29 of the Act, entitled 'Vlni-
formity reiterates the limited purpose of the Texas Water
Safety Act to the enactment. of uniform boating regulations.z/
Any restrictions on firearms is consequently broader than
the scope of the Act.
Section 29 (cf..footnote 7) declares that the basic
authority for the enactment of boating regulations is ,re-
served to the State of Texas. The Parks and Wildlife De:
partment is not authorized to regulate. the possession and
Y Declaration of p&icy
"Section 1. This Act shall be referred to as
the 'Water Safety Act.' It is the policy of this
state to promote safety for persons and property
in and connected with the use, operation, and equip-
ment of vessels and fo promote uniformity of laws
relating thereto." L Emphasis Supplieg/
L/ "Sec. 29. In the interest of uniformity it is
hereby declared to be a basic policy of the State
of Texas that the basic authority for *the enactment
of boatin re ulations is reserved to 'the State."
LBEmphasi: e
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Honorable J. R. Singleton, Page 6 CM- 675 I
shooting of firearms either by the Texas Water Safety
Act or by any other state statute. we doubt that the
Courts would conclude the Legislature intended to convey
through Section 19(b) a more expansive authority to the
Commissioners Court than has been granted to the Parks
and Wildlife Department in which the basic regulatory
authority has been entrusted. For the foregoing reasons,
it would appear that the resolution might easily be held
inconsistent with the terms and provisions of the Texas
Water Safety Act.
Finally we must conclude, in any event, that the
resolution of the County Commissioners Court would be
held invalid under any theory, since it purports to re-
gulate not only the waters of Langford Lake but also the
land within five hundred (500) feet therefrom. Section
19(b) clearly restricts the Commissioners Court regula-
tory authority to "public waters within the territorial
limits of the County" (cf. footnote 2, Supra). Unques-
tionably, that portion of the resolution which purports
to regulate possession of firearms --
on land must be con-
sidered invalid.
Construing the Commissioners Court resolution strict-
ly as we mustg/, we can only conclude that the resolution
neither regulates the "operation and equipment of boats",
nor does it designate an "otherwise restricted area" with-
in the meaning of the Texas Water Safety Act. Accordingly,
the resolution is unauthorized by the Texas Water Safety
Act. Seeing no other constitutional or statutory basis for
sustaining the resolution , we must therefore advise that it
would be improper for game wardens to enforce such a regula-
tion.
s/ Legislative acts of County Commissioners Court
are restricted since such courts have no inherent
legislative authority whatsoever. Legislative power
of the Commissioners Court is strictly limited to
that expressly conferred or necessarily implied by
the Texas Constitution or State statutes. cf. Ar-
ticle V, Section 18, Constitution of the State of
Texas; Van Rosenburg v. Lovett, 173 S.W. 508 (Tex.
Civ.App., 1915, err. ref.); Roper v. Hall, 280 S.W.
289 (Tex.Civ.App., 1925); Childress County v. State,
127 Tex. 343, 92 S.W.2d 1011 (1936); Canales v. Laughlin,
Supra; Hill v. Sterret, 252 S.W.2d 766 (Tex.Civ.App.,
1952, err. ref. n.r.e.).
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. I
Honorable J. R. Singleton, Page 7 (M- 675. )
SUMMARY
The resolution enacted by the Red River County
Commissioners Court has no sustaining indepen-
dent constitutional or statutory basis and over-
steps the authority granted by Section 19(b) af
the Texas Water Safety Act. Accordingly, game
wardens are not authorized to enforce the prq-
visions of the resolution.
Prepared by Earl S. Hines
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jay Floyd
David Longoria
Ivan Williams
Roger Tyler
WFADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
FirstAssistant
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