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## TEE A'ITORNEYGENERAL

0r~T~xAs ;z AUSTIN. TEXAS

June

Hon. Howard D. Dodgen Executive Secretary Game, Fish and Oyster Austin, ‘Texas 16, 1948

Commission * Attention: Hon. F. M. Oowsert

Dear’Sir:

ter: *Under the provisions of Article 941, Penal Code 1925, ,asamended by .Acts1929, 41stLeg. p. 269, ch. ,119,the use of 8ei~nesand nets is prohibited in St. Charles bay and Puerto Bay, In H. B. 745,Acts 1943, 48th Leg.,Reg. S,es
., c.h. 334, p? 563, the use of agy tackle then permitted in any other, , coastal county in the State of Texas was made legalwhen fishing,for commercial purposes in all tidal waters of Aransas Countywith exceptions.o!’

passes between inlandbays and the Gulf. This provisionw88 to be in effect for two years or ior the duration,of the war. Re:, Legality of Commercial netting or fish in St. Charles and:

Puerto Bays;

You request an opinion on the followingmat-

“The question pose’d is stated.as follois: ‘The issue seems to be whether Art. 941 of the Penal Code,was, In effect, repealedby the legislationby the 48th Legislature taking efrect in May, 1943, SUSpendin& operation 08 Art. 941 in the :tidalwaters of Aranqas County.lR Chapter,334 of the AOt8 of the 48th Legislature (1943~))

R.8. p. 563, provide8 that it shall be in ‘force-- ..

Hon. Howard D. Dodgen,Page 2. (V-604.)

"Hereafter, for a period of two (2)years and for the duration of the war". And Section 3 of the Acts is as follows:

"Providing that all laws and parts of laws ihconflict, shallbe suspended for a period of two (2)years or until the end of the war." The suspension of a statutemeans a temporary stop for a timeand involvesa power which canbe exercised only by the Legislature. 39 Tex. Jur., 136, Sec. 72; 59 C. J. 940, Sec. 553; 50 Am. Jur. 524, Sec. 512. It is stated in, Vol. 1, Sutherland, Statutory Construction (3rded. 1943) at page 516 and 518,

"The suspension of a statute is a temporary rescission of a.valid legislative enactmentby the execution of a later statute which is to prevail during its limited operation... And where the Legislatureby a later enactment repealsthe suspensory statute, a statutewhich has been suspended by the repealed statute is reinstatedwithout express re-enactment." . In Texas, the Legislature ha8 the sole "power of suspending laws in this State." Texas Constitution, Art. I, Sec. 28; McDonald v. Denton, 132 S.W. 823, 63 Tex. Civ.App. 421,writ of error denied 135 S. W. 1148, 104 Tex. 206.

The suspension of a statute is not the repeal of a statute. There is amaterial differencebetween the repealand the suspension of a statute. A repeal puts an end,'to

the law; it removes the'law entirely. a suspension holds the law in abeyance; the law still existsbut its operation is suspended ?or the period of timementioned in.the suspension statute. Hden88en v. State of Colorado, 23 Pac. 995,Memaugh v. City of. Orlando, (Fla.)27 so. 34. In our opinion Chapter 334, Acts 40th Leg. did not repealArt. 941 P. C,

It is to be.noted that Chapter 334, page 563 of theActs of,the 48th Legislature, RegularSession was expressly repealedby the 49th Legislature,Acts 1945, Regular Sessioh. Chapter 209 of Actsof the 49th Legislature, Page 289, Sec. 14, at page 290, provides:__

non. Howard D. Dodgen, Page 3. (V-604.)



### “for the repeal of Sec.334, Acts of the Regular Session of the 48th Legislature."
49th Section 1 of Chapter 273, page 431 of the Legislature,Regular Session, again expressly states: "That Chapter 334,Acts of the 48th Legislature, 1943, be, and the same is hereby repealed." The repeal of Chapter 334 of the 48th Legislature, removes the suspension of Penal Code,Article 941, and it is again in full force and effect.

SUMMARY Chapter 334 of the Acts of the 48th Legislature, Ri S. suspending *for a period of two (2) years or for the duration of the war" certain portions of Penal Code,Art, 941,was repealedby Acts ,of,the49th Legislature, Chapter 209, page 289, and Chapter 273, page 431. Art. 941, Penal Code, .isnow iufull force and effect. Very truly yours, ATTOINEYGRNVRAL~OF TEXAS

,DW:owp 'David, Wuhtch Assistant

APPROVED: