P THE ATTORNEY ESERAL OF TEXAS

June 3, 1988

Mr. Charles D. Travis Executive Director Parks andWildlife Department 4200 Smith School Road Austin, Texas 78744 Opinion No. JM-914

Re: Conflict between provisions of the Parks andWildlife Code (RQ-1351)

DearMr. 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 andWildlife 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 firstwill discuss the provisions of S.B. 464; thenwewill turn to S.B. 980.
Prior to the 1985 amendments, section 47.051made violation of a certain list of sections in chapter 47 a misdemeanor, punishable by a fine ofnot less than $10 nor more than $200 and the possible forfeiture for oneyear 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 amisdemeanor punishable by a fine of not less than $100 nor more than $1,000, by confinement in jail fornot less than one month nor more than oneyear, orbyboth.

In 1985 the Parks andWildlife Department was reviewed pursuant towhat isnow chapter 325of 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 andWildlife Code. Acts 1985, 69th Leg., ch. 267, at 1251 et sea. Article 3 0f.S.B. 464 amends chapter 12of the code by adding subchapter E,which established anew penalty schedule for Parks andWildlife Code

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violations in lieu of the specific penalties which had formerly been listed throughout the code.
Article 3of S.B. 464 amends section 47.051 of the code toprovide the following: "Except as provided by Section 47.052 of this code, aperson who violates aprovision of this chapter commits an offense that is a Class C Parks and Wildlife Codemisdemeanor.q' Acts 1985, 69th Leg., ch. 267, art. 3, s 33at 1280. It amends section 47.052 of the code by adding provisions for penalty enhancement in subsection Cd): 1

(a)Aperson who fails to comply with or who violates aprovision of Section 47.003(a) or 47.007 of this code commits an offense that is a Class B Parks andWildlife Code misdemeanor.
(b)The department may seize boats, nets, seines, trawls, or other tackle in the possession of aperson violating the sections listed inSubsection (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 adistrict court in Travis County.
(d)If it is shown at the trial of the defendant foraviolation of Section 47.008, 47.016, or 47.038 of this code that he has been convicted within fiveyears before the trial date of aviolation of the section for which he is being prosecuted, on conviction he shall be punished fora Class B Parks and Wildlife Codemisdemeanor.
L, fi34at 1281.

S.B. 464 also enacted section 12.403, which sets forth the classification of Parks andWildlife Code offenses and provides that Parks andWildlife Codemisdemeanors shall be inthree classes, according to the seriousness of the ?

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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 forpunishment of a "ClassA Parks andWildlife Codemisdemeanor":

An individual adjudged guilty of aClass A Parks andWildlife Codemisdemeanor shall be punished by:
(1)a fine ofnot less than $500 nor more than $2,000:
(2)confinement in jail for a term not to exceed oneyear; or (3)both such fine and imprisonment.
Section 12.405 of the code sets forth the punishment of a I'ClassBParks andWildlife Codemisdemeanor":

An individual adjudged guilty of aClass B Parks andWildlife Codemisdemeanor shall be punished by:
(1)a fine ofnot less than $200 nor more than $1,000;
(2)confinement in jail fora term not .to exceed 180days: or (3)both such fine and imprisonment.
Section 12.406 of the code sets forth the punishment of a I'ClassC Parks andWildlife Codemisdemeanor":

An individual adjudged guilty of aClass C Parks andWildlife Codemisdemeanor 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 fromprosecutions under that code, does not apply to offenses under the Parks and.Wildlife Code. r‘

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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. 980version 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 isguilty of amisdemeanor and on conviction is punishable by a fine of not less than $10 nor more than $200 and is subject to the forfeiture, foroneyear from the date of the conviction, of a license held under the authority of the listed sections.

Acts 1985, 69th Deg., ch. 827, 34at 2886.
The S.B. 980 version of subsection (a) of section 47.052 of the code provides:

(a)Aperson 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 amisdemeanor and on conviction is punishable by a fine ofnot less than $100 normore than $1,000, by confinement in jail fornot less than onemonth nor more than one year, orboth.
Id., at 2886.

In other words, S.B. 464provides that all offenses under chapter 47 of the code arepunishable as Parks and Wildlife Code Class Cmisdemeanors as set forth inthe bill, except forviolations of sections 47.003(a) and 47.007 of the code; violation of those provisions isa Class B Parks andWildlife Codemisdemeanor. 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 forwhich he is then being prosecuted, punishment upon conviction shall be upgraded to the punishment set forth in thebill for a Class BParks andWildlife Codemisdemeanor. ?

S.B. 980, on the other hand, ineffect 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 isamisdemeanor tobe 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

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subject to forfeiture, foroneyear 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 fineofnot less than $100 normore than $1,000, by confinement in jail fornot less than one month normore than oneyear, orboth.

It isclear from a reading ofboth thebills and the bills' legislative histories that the legislature did not intend for the sections listed inS.B. 980 to comprise the exclusive list of sections of chapter 47whose violation would subject the offender topunishment. S.B. 464 contains comprehensive *'sunset'* amendments to the code: the bill is entitled:

AnAct 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 andWildlife 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 andpenalties.

Acts 1985, 69th Legislature, ch. 267 at 1251. The "Purpose of the Bill" set out inthe BillAnalysis 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 anew penalty schedule for Parks andWildlife Code violations and streamline various department activities.
Bill Analysis for S.B. 464. The BillAnalysis forArticle 3 simply states:

Article 111,of this bill amends the Parks and Wildlife Code by:
1)establishing anewpenalty schedule for Parks andWildlife Code violations, and

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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 tobe of more limited scope; thebill isentitled:

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 thebill amends, including section 47.051 and 47.052. subsection (a) of sez;ec;t

The BillAnalysis prepared for the original bill sets forth the purpose of thebill: "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 thebill:

Senate Bill 980 proposes to establish the requirements bywhich seafood products may be bought and sold. Further, itprovides the Commission with greater authority to regulate the importation of red drum and spotted seatrout forresale. Additionally, it proposes to provide for the monthly reporting of purchases, or ifapplicable, nopurchases by seafood dealers.
(BillAnalysis on file in Legislative Reference Library.) There isnothing in the legislative history of S.B. 980 to support the contention that its penalty provisions are intended to supplant the provisions of themore comprehensive S.B. 464; itdoes nothing more than carve out a set of exceptions relating only to the harvesting and sale of certain species of fish.

Statutes that dealwith the same general subject matter are considered as being in sari materia, even though they contain no reference to one another. Inorder 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 ifpossible, and effect will

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be given to all provisions of each act, if they canbe made to stand together. State v. Dver 200 S.W.Zd 813 (Tex. 1947); pintermann V. McDonald, lOZ'S.W.Zd 167 (Tex. 1937); erv. Carlton 296 S.W. 1070 (Tex. 1927); Conlev v. Dauahters of the keDUbliC of TexaS, 156 S.W. 197 (Tex. 1913).

But inan instance inwhich 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:

Inthe absence of an irreconcilable conflictbetween two acts of the same session, eachwill be construed to operate within the limits of its own terms in amanner not to conflict with the other.. However, when two acts of the same session cannot beharmonized
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 intheir 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 firstpassed the Senate onMarch 11, 1985. The House passed thebill with amendments onMay 16, 1985. The Senate concurred in the House amendments on May 21, 1985. S.B. 980 firstpassed the Senate onApril 25, 1985. The House passed thebillwith amendments onApril 21, 1985. The Senate concurred ins the House amendments on May 27, 1985. S.B. 980was the last enacted statute and, therefore, represents themost 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

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between the two.. The only remaining issue isdetermining in justwhat instances there issuch conflict.

The punishments tobe 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 inthe 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 forviolation of any of the sections listed above, except for sections 47.003(a), 47.007, and 47.012, shall be a fineof not less than $10normore than $100; inaddition, 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 forviolation of sections 47.003(a), 47.007, and 47.012 shall be by a fine ofnot less than $100 nor more than $1,000, by confinement in jail fora term ofnot less than onemonth normore than oneyear, orbyboth.
The punishments to be assessed upon conviction for violation of the remaining sections of chapter 47 of the Parks andWildlife Codemust be assessed inaccordance with the provisions of S.B. 464. Therefore, punishment for violation of any of the remaining sections of chapter 47 shall be a Class CParks andWildlife Codemisdemeanor with punishment tobe 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 aperson has a prior conviction within fiveyears of the trial date under either section 47.008, 47.016, or 47.038 of the code and he isconvicted of an offense under the section under which he has a prior conviction, punishment upon conviction is enhanced to the level of a Class BParks andWildlife Code misdemeanor.

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-. SUMMARY
Any punishments assessed forviolation of the following sections of the Parks and Wildlife Codemust 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 forviolation 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 normore than $100; additionally, anyone so convicted is subject to the forfeiture, for oneyear from the date of the conviction, of any license held under the authority of the listed sections. Punishment tobe assessed for the violation of sections 47.003(a), 47.007, or 47.012 of the code shallbe by a fine ofnot less than $100 normore than $1,000, by confinement in jail fora term ofnot less than one month normore than oneyear, orby both.
Punishments tobe 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 andWildlife Codemisdemeanor with punishment tobe assessed as a fine ofnot less than $25
normore than $500. S.B. 980 is silent as to enhancement ofpunishment foranyprior convictions; accordingly, any specific enhancement provisions set forth in S.B. 464 will control. Therefore, pursuant to S.B. 464, if anyperson has aprior conviction within five years of the trial date under either sections 47.008, 47.016, or 47.038 of the code and he isconvicted of anoffense under the section forwhich he has aprior conviction, punishment upon conviction isenhanced to the level of a Class B Parks and Wildlife Code misdemeanor.
Very truly yor , 

# i-//h

A JIM MATTOX Attorney General of Texas

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MARY KELLER First Assistant Attorney General

LOUMCCRKARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKIZY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by JimMoellinger Assistant Attorney General

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