P 

THE ATTORNEY ESERAL 

OF TEXAS 

June 3, 1988 

Mr. Charles D. Travis 

Executive Director 

Parks and Wildlife 

Department 

4200 Smith School Road 

Austin, Texas 78744 

Opinion No. JM-914 

Re: Conflict between provisions 

of the Parks and Wildlife Code 

(RQ-1351) 

Dear Mr. Travis: 

The 69th Legislature enacted Senate Bill No. 464 (Acts 

1985, 69th Legislature, chapter 267, at 1251), and Senate 

Bill No. 980 (Acts 1985, 69th Legislature, chapter 827, at 

2885), both of which contain amended versions of sections 

47.051 and 47.052 of the Parks and Wildlife Code. YOU ask 

whether the two amended versions are in conflict and, if 

they are, which amended version prevails. We conclude, 

first, that the amended sections are in irreconcilable 

conflict, but only as to the specific sections set out in 

S.B. 980, and, second, that S.B. 980 controls in the event 

of any such conflict. We first will discuss the provisions 

of S.B. 464; then we will turn to S.B. 980. 

Prior to the 1985 amendments, section 47.051 made violation of a certain list of sections in chapter 47 a 

misdemeanor, punishable by a fine of not less than $10 nor 

more than $200 and the possible forfeiture for one year of 

any license held under the authority of the listed sections. 

Prior to the 1985 amendments, section 47.052 made violation 

of certain other listed sections a misdemeanor punishable by 

a fine of not less than $100 nor more than $1,000, by 

confinement in jail for not less than one month nor more 

than one year, or by both. 

In 1985 the Parks and Wildlife Department was reviewed 

pursuant to what is now chapter 325 of the Government Code, 

q 

the so-called "Sunset Law," and, as a consequence, the 69th 

Legislature enacted S.B. 464, which sets forth comprehensive 

amendments to the Parks and Wildlife Code. Acts 1985, 69th 

Leg., ch. 267, at 1251 et sea. Article 3 0f.S.B. 464 amends 

chapter 12 of the code by adding subchapter E, which established a new penalty schedule for Parks and Wildlife Code 

p. 4563 
Mr. Charles D. Travis - Page 2 (JM-914) 

violations in lieu of the specific penalties which had 

formerly been listed throughout the code. 

Article 3 of S.B. 464 amends section 47.051 of the code 

to provide the following: "Except as provided by Section 

47.052 of this code, a person who violates a provision of 

this chapter commits an offense that is a Class C Parks and 

Wildlife Code misdemeanor.q' Acts 1985, 69th Leg., ch. 267, 

art. 3, s 33 at 1280. It amends section 47.052 of the code 

by adding provisions for penalty enhancement in subsection 

Cd) : 

1 

(a) A person who fails to comply with or 

who violates a provision of Section 47.003(a) 

or 47.007 of this code commits an offense 

that is a Class B Parks and Wildlife Code 

misdemeanor. 

(b) The department may seize boats, nets, 

seines, trawls, or other tackle in the possession of a person violating the sections 

listed in Subsection (a) of this section and 

hold them until after the trial of the' 

person. 

(c) Violatiqns of the above sections may 

also be enjoined by the attorney general by 

suit filed in a district court in Travis 

County. 

(d) If it is shown at the trial of the 

defendant for a violation of Section 47.008, 

47.016, or 47.038 of this code that he has 

been convicted within five years before the 

trial date of a violation of the section for 

which he is being prosecuted, on conviction 

he shall be punished for a Class B Parks and 

Wildlife Code misdemeanor. 

L, fi 34 at 1281. 

S.B. 464 also enacted section 12.403, which sets forth 

the classification of Parks and Wildlife Code offenses and 

provides that Parks and Wildlife Code misdemeanors shall be 

in three classes, according to the seriousness of the ? 

p. 4564 
I&. Charles D. Travis - Page 3 (JM-914) 

offense.1 Sections 12.404, 12.405 and 12.406 of the code, 

also enacted by S.B. 464, set forth the punishments 

P appropriate to Class A, Class B, and Class C misdemeanors 

respectively. Section 12.404 provides for punishment of a 

"Class A Parks and Wildlife Code misdemeanor": 

An individual adjudged guilty of a Class A 

Parks and Wildlife Code misdemeanor shall be 

punished by: 

(1) a fine of not less than $500 nor more 

than $2,000: 

(2) confinement in jail for a term not to 

exceed one year; or 

(3) both such fine and imprisonment. 

Section 12.405 of the code sets forth the punishment of 

a I'Class B Parks and Wildlife Code misdemeanor": 

An individual adjudged guilty of a Class B 

Parks and Wildlife Code misdemeanor shall be 

punished by: 

(1) a fine of not less than $200 nor more 

than $1,000; 

(2) confinement in jail for a term not .to 

exceed 180 days: or 

(3) both such fine and imprisonment. 

Section 12.406 of the code sets forth the punishment of 

a I'Class C Parks and Wildlife Code misdemeanor": 

An individual adjudged guilty of a Class C 

Parks and Wildlife Code misdemeanor shall be 

punished by a fine of not less than $25 nor 

more than $200. 

P 

1. Section 12.403 also provides that section 12.41.of 

the Penal Code, which classifies convictions for offenses 

not obtained from prosecutions under that code, does not 

apply to offenses under the Parks and.Wildlife Code. 

r‘ 

p. 4565 
Mr. Charles D. Travis - Page 4 (JM-914) 

S.B. 980, on the other hand, also contains, inter alia, 

amended versions of sections 47.051 and 47.052 of the code. 

The S.B. 980 version of section 47.051 provides: 

A person who violates a provision of 

Section 47.002, 47.004 through 47.006, 47.009 

through 47.011, 47.013 through 47.015, 

47.017, 47.032 through 47.034, or 47.037, of 

this code is guilty of a misdemeanor and on 

conviction is punishable by a fine of not 

less than $10 nor more than $200 and is 

subject to the forfeiture, for one year from 

the date of the conviction, of a license held 

under the authority of the listed sections. 

Acts 1985, 69th Deg., ch. 827, 3 4 at 2886. 

The S.B. 980 version of subsection (a) of section 

47.052 of the code provides: 

(a) A person who fails to comply with or 

who violates a provision of Section 

47.003(a), 47.007, or 47.012 of this code is 

guilty of a misdemeanor and on conviction is 

punishable by a fine of not less than $100 

nor more than $1,000, by confinement in jail 

for not less than one month nor more than one 

year, or both. 

Id., at 2886. 

In other words, S.B. 464 provides that all offenses 

under chapter 47 of the code are punishable as Parks and 

Wildlife Code Class C misdemeanors as set forth in the bill, 

except for violations of sections 47.003(a) and 47.007 of 

the code; violation of those provisions is a Class B Parks 

and Wildlife Code misdemeanor. In addition, if someone is 

tried under sections 47.008, 47.016, or 47.038 and it is 

adduced at trial that that person was convicted within five 

years before the trial date of a violation of the section 

for which he is then being prosecuted, punishment upon 

conviction shall be upgraded to the punishment set forth in 

the bill for a Class B Parks and Wildlife Code misdemeanor. 

? 

S.B. 980, on the other hand, in effect carves out a set 

of exceptions to the punishments set out in S.B. 464, 

providing that violation of any of a list of specified 

sections is a misdemeanor to be punished by a fine of not 

less than $10 nor more than $200. In addition, anyone 

convicted of violating any of the specified sections is 7 

p. 4566 
Mr. Charles D. Travis - Page 5 (JM-914) 

subject to forfeiture, for one year from the date of conviction, of any license held under the authority of those 

P sections. S.B. 980 also provides that violation of any of a 

list of other specified sections is a misdemeanor and 

punishable by a fine of not less than $100 nor more than 

$1,000, by confinement in jail for not less than one month 

nor more than one year, or both. 

It is clear from a reading of both the bills and the 

bills' legislative histories that the legislature did not 

intend for the sections listed in S.B. 980 to comprise the 

exclusive list of sections of chapter 47 whose violation 

would subject the offender to punishment. S.B. 464 contains 

comprehensive *'sunset'* amendments to the code: the bill is 

entitled: 

An Act relating to the continuation, composition, powers, and duties of the Parks and 

Wildlife Department; . . . to the enforcement 

of laws and regulations relating to activities permitted by licenses and permits issued 

by the Parks and Wildlife Department; to 

state recovery for certain violations of the 

Parks and Wildlife Code: to authorizing the 

Parks and Wildlife Department to recover 

damages for certain violations of the Water 

Code: providing penalty schedules for the 

Parks and Wildlife Code: . . . providing 

enforcement procedures and penalties. 

Acts 1985, 69th Legislature, ch. 267 at 1251. The "Purpose 

of the Bill" set out in the Bill Analysis states that, among 

other purposes, the bill is intended to 

provide the agency with greater authority for 

resource protection activities, enforcement 

functions and fees charged for departmentrelated activities. Other changes the bill 

makes will establish a new penalty schedule 

for Parks and Wildlife Code violations and 

streamline various department activities. 

Bill Analysis for S.B. 464. The Bill Analysis for Article 3 

simply states: 

Article 111,of this bill amends the Parks and 

Wildlife Code by: 

1) establishing a new penalty schedule for 

Parks and Wildlife Code violations, and 

p. 4567 
Mr. Charles D. Travis - Page 6 (JM-914) 

2) deleting specific penalties listed 

throughout the code and substituting a 

reference to a penalty on the newly established penalty schedule. 

S.B. 980, on the other hand, is intended to be of more 

limited scope; the bill is entitled: 

An Act relating to regulation of transportation of and commerce in fish and other edible 

marine products and to records of convictions 

and their use; providing penalties. . . . 

Acts 1985, 69th Leg., ch. 827 at 2885. The title goes on to 

list the specific sections.of the code that the bill amends, 

including section 47.051 and 

47.052. 

subsection (a) of sez;ec;t 

The Bill Analysis prepared for the original 

bill sets forth the purpose of the bill: "To strengthen the 

protections provided in legislation regulating the 

commercial harvest of redfish and speckled sea trout by 

imposing record-keeping requirements at all points of sale." 

The Bill Analysis prepared for the House Committee on 

Environmental Affairs contains a fuller statement of the 

purpose of the bill: 

Senate Bill 980 proposes to establish the 

requirements by which seafood products may be 

bought and sold. Further, it provides the 

Commission with greater authority to regulate 

the importation of red drum and spotted seatrout for resale. Additionally, it proposes 

to provide for the monthly reporting of 

purchases, or if applicable, no purchases by 

seafood dealers. 

(Bill Analysis on file in Legislative Reference Library.) 

There is nothing in the legislative history of S.B. 980 to 

support the contention that its penalty provisions are 

intended to supplant the provisions of the more comprehensive S.B. 464; it does nothing more than carve out a set of 

exceptions relating only to the harvesting and sale of 

certain species of fish. 

Statutes that deal with the same general subject matter 

are considered as being in sari materia, even though they 

contain no reference to one another. In order to arrive at 

the proper statutory construction, all parts of the acts h 

pari materia will be construed together, as though they were 

parts of the same law. Any conflict between their 

provisions will be harmonized if possible, and effect will 

p. 4568 
Mr. Charles D. Travis~ - Page 7 (JM-914) 

be given to all provisions of each act, if they can be made 

to stand together. State v. Dver 200 S.W.Zd 813 (Tex. 

1947); pintermann V. McDonald, lOZ'S.W.Zd 167 (Tex. 1937) ; 

er v. Carlton 296 S.W. 1070 (Tex. 1927); Conlev v. 

Dauahters of the keDUbliC of TexaS, 156 S.W. 197 (Tex. 

1913). 

But in an instance in which conflicting statutes are 

enacted by the same session of the legislature, the latest 

expression of legislative intent prevails. Sx carte de 

Jesus de la 0, 

Attorney Generai 

227 S.W.Zd 212 (Tex. Crim. App. 1950); 

Opinions MW-139 (1980): H-1115 (1978). 

Sutherland Statutorv Construction offers the following 

rules: 

In the absence of an irreconcilable conflict between two acts of the same session, 

each will be construed to operate within the 

limits of its own terms in a manner not to 

conflict with the other.. However, when two 

acts of the same session cannot be harmonized 

or reconciled, that statute which is the 

latest enactment will operate to repeal a 

prior statute of the same session to the 

extent of any conflict in their terms. 

Because the latest expression of the 

legislative will prevails, the statute last 

passed will prevail over a statute passed 

prior to it, irrespective of the time of 

taking effect. Where two acts of the same 

session take effect at the same time, the 

latest passed will prevail. 

1A Sutherland Statutorv Construction § 23.17 (4th ed.) 

(footnotes omitted). 

In this instance, both bills were enacted during the 

69th Legislature, and both deal with the same subject 

matter, namely punishments assessed for violations of the 

code. S.B. 464 first passed the Senate on March 11, 1985. 

The House passed the bill with amendments on May 16, 1985. 

The Senate concurred in the House amendments on May 21, 

1985. S.B. 980 first passed the Senate on April 25, 1985. 

The House passed the bill with amendments on April 21, 1985. 

The Senate concurred ins the House amendments on May 27, 

1985. S.B. 980 was the last enacted statute and, therefore, 

represents the most recent expression of legislative intent 

on the subject. Accordingly, S.B. 980 prevails over S.B. 

464 in the event that there are irreconcilable conflicts 

p. 4569 
Mr. Char1es.D.~ Travis - Page 8 (JM-914) 

between the two.. The only remaining issue is determining in 

just what instances there is such conflict. 

The punishments to be assessed upon conviction of a 

violation are different under each bill, thereby rendering 

the two bills irreconcilably in conflict as to those 

specific sections set out in the later-enacted S.B. 980. 

Therefore, any punishments assessed for violation of 

sections 47.002, 47.003(a), 47.004 through 47.006, 47.008, 

47.009 through 47.011, 47.012, 47.013 through 47.015, 

47.017, 47.032 through 47.034, and 47.037 of the Parks and 

Wildlife Code must be assessed in accordance with the 

provisions of S.B. 980. Accordingly, the punishment to be 

assessed for violation of any of the sections listed above, 

except for sections 47.003(a), 47.007, and 47.012, shall be 

a fine of not less than $10 nor more than $100; in addition, 

anyone so convicted is subject to the forfeiture, for one 

year from the date of the conviction, of any license held 

under the authority of the listed sections. Punishment to 

be assessed for violation of sections 47.003(a), 47.007, and 

47.012 shall be by a fine of not less than $100 nor more 

than $1,000, by confinement in jail for a term of not less 

than one month nor more than one year, or by both. 

The punishments to be assessed upon conviction for 

violation of the remaining sections of chapter 47 of the 

Parks and Wildlife Code must be assessed in accordance with 

the provisions of S.B. 464. Therefore, punishment for 

violation of any of the remaining sections of chapter 47 

shall be a Class C Parks and Wildlife Code misdemeanor with 

punishment to be assessed as a fine of not less than 825 nor 

more than $500. S.B. 980 is silent as to enhancement of 

punishment for any prior convictions: accordingly, any 

specific enhancement provisions set forth in S.B. 464 will 

control. Therefore, pursuant to S.B. 464, if a person has a 

prior conviction within five years of the trial date under 

either section 47.008, 47.016, or 47.038 of the code and he 

is convicted of an offense under the section under which he 

has a prior conviction, punishment upon conviction is 

enhanced to the level of a Class B Parks and Wildlife Code 

misdemeanor. 

p. 4570 
Mr. Charles D. Travis - Page 9 (JM-914) 

-. 

SUMMARY 

Any punishments assessed for violation of 

the following sections of the Parks and 

Wildlife Code must be assessed in accordance 

with the provisions of S.B. 980: sections 

47.002, 47.003(a), 47.004 through 47.006, 

47.008, 47.009 through 47.011, 47.012, 47.013 

through 47.015, 47.017, 47.032 through 

47.034, and 47.037. Therefore, the punishment to be assessed for violation of any of 

the sections listed above, except for 

sections 47.003(a), 47.007, and 47.012, is a 

fine of not less than $10 nor more than $100; 

additionally, anyone so convicted is subject 

to the forfeiture, for one year from the date 

of the conviction, of any license held under 

the authority of the listed sections. 

Punishment to be assessed for the violation 

of sections 47.003(a), 47.007, or 47.012 of 

the code shall be by a fine of not less than 

$100 nor more than $1,000, by confinement in 

jail for a term of not less than one month 

nor more than one year, or by both. 

Punishments to be assessed for violation 

of the remaining sections of chapter 47 are 

governed by S.B. 464. Therefore, violation 

of any such section shall be a Class C Parks 

and Wildlife Code misdemeanor with punishment 

to be assessed as a fine of not less than $25 

nor more than $500. S.B. 980 is silent as to 

enhancement of punishment for any prior convictions; accordingly, any specific enhancement provisions set forth in S.B. 464 will 

control. Therefore, pursuant to S.B. 464, if 

any person has a prior conviction within five 

years of the trial date under either sections 

47.008, 47.016, or 47.038 of the code and he 

is convicted of an offense under the section 

for which he has a prior conviction, punishment upon conviction is enhanced to the level 

of a Class B Parks and Wildlife Code 

misdemeanor. 

Very truly yo r , i-/ A /h 

JIM MATTOX 

Attorney General of Texas 

p. 4571 
Mr. Charles D. Travis - Page 10 (JM-914) 

MARY KELLER 

First Assistant Attorney General 

LOU MCCRKARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKIZY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 4572