### Auwrm. **TEXAfS** 

### 78711 February 25, 1972 Honorable Louis Dugas, Jr. County Attorney Orange County Courthouse Orange, Texas 77630 Dear Mr. Dugas: Opinion No. M- 1079 Re: Whether Article 1436-3, Vernon’s Penal Code, repealed Article 5503 and 5504, Vernon’s Civil Statutes. Your request for an opinion asks the following question: “Whether Article 1436-3, Vernon’s Penal Code, repealed Article 5503 and 5504, Vernon’s Civil Statutes. ” Article 1436-3, Vernon’s Penal Code is entitled “Abandoned Motor Vehicle Act. ” Section 6ofthat Article provides as follows:

“Sec. 6. Any motor vehicle left for more than 10days ina storage facility operated for commercial purposes after notice by registered or certified mail, return receipt requested, tothe owner to pick upthe vehicle, or for more than 10days after the period when, pursuant to contract, the vehicle was to remain onthe premises of such storage facility, and any motor vehicle left for more than 10days in such storage facility by someone other than a registered owner or left by a person authorized to have possession ofthe motor vehicle under a contractive use, service, storage, or repair, shall be deemed anabandoned vehicle and shall be reported by the garagekeeper to the police department

. Except for the termination of claim for service, storage, or repair for failure to report anabandoned motor vehicle, nothing inthis section shall be construed to impair any lien ofa garagekeeper under the laws of this State, or the right ofalienholder to foreclose. ”

-5283-Honorable Louis Dugas, Jr., page 2 (M-1079) .

Article 5503 provides that mechanics may retain property until the amount due onthe same for repairing by contract shall befully paid off and discharged. Article 5504 provides that property retained under Article 5503 may be sold by the person holding the property ifhis possession has continued for sixty days after the charges accrue andthe charges have not been paid, and ifafter notice to the owner, the owner fails to pay such charges, the person so holding the property is authorized to sell the property atpublic sale and apply the proceeds to the payment ofthe charges.

Article 1436-3 does not repeal Articles 5503 and 5504. Infact, the Act, ofwhich Article Iwas codified by Vernon as Article 1436-3, specifically amends such Articles. (Acts 1971, 62nd Legislature, Chap. 784, p. 2441.) The repeal oflaws by implication is not favored. Halsell v. Texas Water Commission, 380 S.W. 2d 1(Tex. Civ. App. 1964, error ref. n.r.e. ), American Canal Company v. Dow Chemical Company, 380 S.W. 2d 662 (Tex. Civ. App. 1964, error dism. ) Where there is no express repeal, the presumption is that in enacting a new law the Legislature intended the old statute to remain inoperation. Cunningham v. Henry, 231 S.W. 2d 1013 (Tex. Civ. App. 1950, error ref. n.r. e.) Where there is no direct and irreconcilable conflict between the two statutes they will be construed to give effect toboth statutes. International Service Company v. Jackson, 335 S.W. 2d420 (Tex. Civ. App. 1960, error ref. n.r. e.)

Further, itappears that Article 1436-3 andthe reenactment of Article 5503 with amendment were passed by the same Legislature. Under such circumstances,

II

. . . nothing short ofadirect repeal in express terms, or such irreconcilable repugnancy as that both acts cannot stand together, will justify a court inholding an act repealed by another act passed at the same session ” 53 Tex. Jur. 2d 156, Sec. 105, Statutes. Article 1436-3 and Articles 5503 and 5504 are not in irreconcilable conflict, since they may by reasonable construction be harmonized and each stand together and given full force and effect as intended by the Legislature. Cole v. State, 106 Tex. 472, 170 S.W. 1036 (1914. ) Therefore, both Articles would be in effect and amechanic’s lien may be retained under Article 5503 and such lien may be foreclosed under Article 5504.

-5284-^,.
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Honorable Louis Dugas, Jr., page 3 (M-1079)

SUMMARY Article 1436-3, Vernon’s Penal Code, didnot repeal Articles 5503 and 5504, Vernon’s Civil Statutes; therefore, amechanics’ lien may be retained under the provisions ofArticle 5503, and such lien may be foreclosed under the provisions ofArticle 5504.

Prepared by Merrill Finnell Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen. Co-Chairman Ben Harrison Rex White Scott Garrison Milton Richardson SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assis.tant NOLA WHITE First Assistant

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