Untitled Texas Attorney General Opinion

Hon. Robert S. Calvert Opinion No. V-1213
Comptroller of Public Accounts
Austin, Texas Re: Definition of “coin-operated
machine” for taxation pur-
poses in view of possible
conflict between House Bills
31 and 307, Acts 52nd Leg-
Dear Mr. Calvert: islature.
You request the opinion of this office as to whether
House Bill No. 307 pass,ed by the 52nd Legislature repeals or a-
mends House Hill No. 31, passed at the same session of the Leg-
islature.
House Bill 31 passed the House on April 18, 1951, and
the Senate on May 3, 1951, by a record vote sufficient to become
immediately effective upon approval by the Governor. The Gove*-
nor approved this bill May 19, 1951. House Bill 307 passed the
House on May 2, 1951, and the Senate on May 10, 1951, with a suf-
ficient record vote to make it immediately effective upon approval
by the Governor. The Governor approved this bill on June 2, 1951.
Both of these acts bear upon the same subject, and it
is our duty under long established rules of statutory construction
to reconcile them, if possible, so as not to render ineffective the
provisions of either, It is our opinion, however, that the a,cts are
irreconcilable. House Bill 31 had for its sole purpose the amend-
ment of paragraph (d) of Article 7047a-2, R.C.S. 1925, so as to add
coin-operated midget movies to the definition of merchandise or
music coin-operated machines. Otherwise, the definition of *mer-
chandise or music coin-operated machine” contained in the amended
law was not changed. However, paragraph (d) as amended by House
Bill 307, the later act, omits all reference to merchandise or coin-
operated midget movies. Paragraph (d) as contained in House Bill
307,is a complete definition within itself and is a part of’the com-
prehensive amendment to Section 4 of Article III of House Bill No,
8, Acts 44th Leg., 3rd C.S. 1936, ch. 495, ‘,p. 2840, relating to the
levy of taxes on certain coin-operated machines. It completely re-
places paragraph (d) as worded in House Bill 31.
There being an irreconcilable conflict between the two
acts, the later act must prevail. Att’y Gen. Op. V-990. Indeed,
House Bill 30:7 expressly repeals all laws or parts of laws in conflict
Hon. Robert.% Calvert, Page 2 (V-1213)
thartwith. The ruI# ia stated in Ex parte De Eaaus de la O., 227
SbW.Zd 212 (Tex. aim. 1950), as follows:
“Where two acts passed at the same session 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 sta@ as the
final expression of the legislative will. See 39 Tex.
Jur. 147, Sec. 78; Gain v. State, 20 Tex. App.’ 359; and
Stevens v. State, 70 Tax. Cr. R. 565, 159 SW. 505.”
This ruie has been followed in this State by both the
Supreme Court and the Court of Criminal Appeals.
In Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063
(1929), the Court had before it the question of which of two acts
passed at 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 ir-
reconcilable. * In holding that the last act prevailed the Court said:
,“It will be observed that in the amendment ap-
proved March 25, 1927, there is no express repeal of
the abolishing Act approved March 22nd. It is well set-
tled that repeals by implication are not favored and that
all acts and parts of acts in pari materia are to be con-
strued as a whole and interpreted- manner as
that all may stand where such may reasonably be done.
It is only where acts are so inconsistent as to be irrec- :. .’ ``
on&able that a repeal by implication will be indulged.
If there exists such conflict, then. there is a presump-
tion of the intention to repeal all laws and parts of laws
in conflict with the clear intention of the last act. This
is necessarily true where both acts cannot stand as valid ;’
enactments.” (16 S.W.2d at 1064.)
,The Court of Criminal Appeals in Stevens v. State, 70
Tex. Grim. 565, 159 S.W. 50,5 (1913), adhered to this rule in the fol-
lowing language:
In the case of Chiles v. State, 1 Tex. App.
a‘
v 0 .
31, this court aa% ‘The two acts, betig passed at the
same strsion of the Legislature, oupht, if possible, to
be construed together, so that both might stand as one
embodiment of the legislative will. But it will be per-
ceived that these two acts, though panaed at the same
session, cannot, by any known rule of construction, be
so reconciled as that both may s,tand; and, ip case there
is such repugnance between the two as that one must
Hon. Robert S. Calvert, Page 3 (V-1213)
give way, the rule is the last must stand as an expres-
sion of the will of the Legislature.’ When the Supreme
.Court had jurisdiction in criminal matters, in the case
of Cainv. State, 20 Tex. 359, Judge Wheeler, speaking
for the court, said: ‘The rule is that, in construction of
acts of the same session, the whole must be taken and
construed as one act, and, to make a latter provision
repeal a former, there must be an express repeal or
an irreconcilable repugnancy between them, and thz
the latter will control’--citing 3 Moore, 77; Sedgwick
on Stat. & Const. Law, 410.”
You are therefore advised that House Bill No. 307 in
effect repeals House Bill No. 31, and you will be governed by House
Bill 307.
SUMMARY
House Bill 31 and House Bill 307, Acts 52nd Leg., -. J
1951, each amending paragraph (d) of Article 7047a-2, ‘.
V.C.S., defining certain coin-operated vending machines, ~’
are in conflict and cannot be harmonized. Since House
Bill 307 is the latest expression of the Legislature, it
will prevail over the provisions of House Bill 31. Att’y
Gen. Op. V-990 (1950).
,Yours very truly,
PRICE DANIEL
Attorney General
APPROVED: By if-
L. P. Lollar
~W. V. Geppert Assistant
Taxation Division
Jesse P. Luton, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant
LPL/mwb