Untitled Texas Attorney General Opinion

May 12, 1967
Honorable Jack Hightawer Opinion No. M- 73
Chairman
Game and Fieh Committee Re: Constitutionality of H.B.
State Senator No. 741 of the 60th Legis-
Austin, Texas lature, with amendment8
thereto.
Dear Senator Hightower:
You regueet an opinion from this office aa to the
constitutionality of H.B. No. 741 of the 60th Legislature, with
amendments thereto, FQr clarity we will stats the Bill,as proposed.
"A BTLL
TO BE ENTITLED ,,
AN ACT relating to reciprocal hunting and fitihing
privileges between Texas resldents and
residents of other States; and declaring
an emergency.
"Section 1, The Parks and Wildlife
Department shall Issue a Texas Hunting and
Fishing License for the same fee a8 is
charged re@ldent@ of Texas if it is shown
that the nonresident applicant's state
grants a similar, reciprocal privilege to
residents of the State of Texas.
'ISec. 2. A resident of Louisiana may
engage in lawful sport hunting In Jasper,
Orange, Newton, Sabine and Shelby counties
If he has purchased a valid license by the
state of his residence and that his state
grants a similar, reciprocal hunting
privilege to residents of the State of
Texas.
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Hon. Jack Hightower, page 2 (M-73)
“Sec. 3. A resident of Louisiana may
engage in lawful sport fishing in any of
the waters forming a boundary by the
Sabine River and the Sabine Lake between
his state and this state without a Texas
license if he has a valid license issued
by the state of his residence and that
his state grants a similar, reciprocal
fishing privilege to residents of the
State of Texas.
‘Sec. 4. The importance of this
legislation and the crowded condition
of the calendars in both houses create
an emergency and an imperative public
necessity that the Constitutional Rule
requiring bills to be read on three
several days in each house be susp$nded,
and this Rule is hereby suspended.
We have made a thorough search of the case law which
might have tested the constitutionality of a state statute that
granted reciprocal privileges to residents residing outside their
respective states and have been unable to find any cases which
touch upon this question.
In passing upon the constitutionality of Article,934b-1
of Vernon’s Penal Code, the court in Dodgen v. Depuglio, 146 Tex.
533, 209 S.W. 588 (1948) stated on page 591:
“It will be observed that the statute
sought to be nullified is a conservation
statute and that it prescribes a fee for
both non-resident fishermen and the use
of non-resident commercial fishingboats,
as a prerequisite t$ take shrimp
to the state. (Emphasis
me court.) and further stated
as follows:
“Where a state may validly require a
license, it may make such classifications,
subclassifications or exemptions as deemed
necessary, so long as such classifications
are not unreasonable and arbitrary. Hurt
v. Cooper, 130 Tex. 433, 110 S.W.2d 896;
S$;eJvS Woodruff, 134 Fla. 437, 184 So; 81;
. . ., Constitutional Law, B 659. A
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Hon. Jack Hightower, Page 3 (M-73)
classification is never unreasonable or
arbitrary in its inclusion or exclusion
features so long as there is some basis
for the differentiation between classes
or subject matters includ,ed as compared
to those excluded from its operation,
provided the differentiation bears a
reasonable relation to the purposes to
be accom lished by the act.' State v.
Mason, 9 8 Utah,501, 78 Pi2d 920, 923,
117 A.L.RI 330; Hurt v/Cooper, supra;
Hurt v. Cooper, Tex.Civ.App., 113
S.W.2d 929. The mere fact that discrimi-
nation is made does not necessarily vitiate
the classification, and unless there Is
no substantial basis for the discrimination,
there is no warrant for judicial interfer-
ence. Hurt v, Cooper, Tex.Sup., supra;
Hurt v. Cooper, Tex.Civ.App., supra; 16
C.J.S., Constitutional Law, B 529. All
that Is required is that the enactment
shall be applicable to all persons alike
under the same circumstances. Beacon
Lumber Co, v. Brown, Tex.Com.App., 14
S.W.2d 1022; Waid v. City of Fort Worth,
Tex.Civ.App.; 258 S.W. 1114, writ of error
refused, 'One who assails the classifica-
tion * * * must carry the burden of show-
ing that It does not rest upon any reason-
able basis, but Is essentially arbitrary.'
Lindsley v. Natural Carbonic Gas Co., 220
U.S. 61, 78, 79, 31 S.ct. 337, 340, 55
L. Ed. 369, Ann. Cas. 1912C, 160. Depuglio,
in attacking the constitutionality of the
statute in question, has not shown that the
classification involved is unreasonable or
arbitrary."
It thus appears from a reading of the above case that
the state has a right to pass laws requiring a license and it
may make such classifications, subclassifications or exemptions
as long as they are not unreasonable and arbitrary, and that such
statutes are not unconstitutional unless they are unreasonable or
arbitrary. Therefore H.B. No. 741, of the 60th Legislature, with
amendments thereto, is constitutional.
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Hon. Jack Hightower, Page 4 (M-73)
SUMMARY
H.B. No. 741, of the 60th Legislature,
with amendments thereto, Is constitutional.
.Preparedby John H. Banks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Alan Minter
Wade Anderson
Scott Garrison
John Reeves
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.
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