March 8,1976

The Honorable Clayton Garrison Executive Director Texas Parks &Wildlife Department John H. Reagan Building Austin, Texas 78701 Opinion No. H-791

Re: Validity ofdeputy game warden commissions in light of the omission of the authorizing statute from anon-substantive recodification of game and fish laws.

Dear Nr. Garrison:

You requested our opinion regarding thevalidity of deputy game warden commissions after September 1, 1975.

In 1973, the 63rdLegislature authorized the executive director of the Parks and'wildlife Department to commission deputy game wardens who, after filing an oath andbond, were empowered toenforce state laws relating tohunting, fishing, and thepreservation ofwildlife andmarine animals. Acts 1973, 63rd Leg., ch. 151, at 353. The deputy game wardens
were required to servewithout compensation. The authorizing lawwas compiled as article 978f-5f ofVernon's Texas PenalAuxiliary Laws. Commissions were issued after September 1, 1973.

Two years later the 64th Legislature enacted H.B. 1186 embodying a comprehensive Parks andWildlife Code. Acts 1975, 64th Leg., ch. 545, at 1405. Section 2(a)of H.B. 1186 expressly repealed certain existing laws, including "Articles 871 through 978n-2, Vernon's Texas Penal Code Auxiliary Laws.

. . ." But the new Code, which became effective September 1, 1975, failed to contain aprovision comparable to article 978f-5f specifically authorizing the appointment ofdeputy game wardens.

p.3333The Honorable Clayton Garrison -page 2 (H-791)

You ask (1)whether deputy game warden commissions issued between September 1, 1973 and September 1, 1975 remain valid and "permit the commissioned person tocontinue enforcement of game and fish laws as authorized under omitted Article 978f-5f," and (2)whether commissions issued after September 1, 1975 are valid. Theprincipal issue iswhether authority granted by article 978f-5f survived enactment of thenew Parks andWildlife Code. Inour opinion itdid not.

There isno doubt that article 978f-5f of the Penal Auxiliary Laws, which provided specific authority for deputy game warden commissions,was repealed by the law enacting the new Parks andWildlife Code. Section 2(a) of H.B. 1186 contained a specific express repealer of "Articles 871 through 978n-2, Vernon's Texas Penal CodeAuxiliary Laws," which is inclusive of article 978f-5f. The article
was not among those specifically saved from repeal by section 2(c) of H.B. 1186.
Deputy game wardens are notmentioned at all in the new Parks andWildlife Code. The only apparent source of authority fordeputy game warden commissions is section 11.018 which provides generally for the executive director of the Parks and ,WildlifeDepartment to appoint employees of the Department. But like itspredecessor proyision, article 978f-3a of the Texas PenalAuxiliary Laws section 11.018 does notprovide for appointments, salaried or otherwise, unless authorized by the current appropriations act. See Attorney General Opinion M-1080 (1972)construing article 978f-3a. The current appropriations act fails toprovide fordeputy game wardens. Acts 1975, 64thLeg., ch. 743, at 2417.
Section 3of H.B. 1186 provides:

Sec. 3. ThisAct is intended as a recodification only, and no substantive change is intended by thisAct.

p.3334The Honorable Clayton Garrison -page 3 (H-791)

See alsoV.T.C.S. art. 5429b-1. While this statement of legislative intent ishelpful inconstruing theAct, the language of theAct designed to accomplish that intentmust fairly and reasonably do so.'City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.Sup. 1964). The rule applicable to code revisions was addressed by the Texas Supreme Court inAmerican Indemnit 1024 (Tex.Sup.

---d---- Co. v. City $ Austin, 246 S.W. 1019,

,where it said:

The Court went on to e,xplainat 1025:

Codes are notmere compilations of laws previously existing, but bodies of laws
so enacted that laws previously existing and omitted therefrom cease to exist, and such additions as appear therein are the law from the approval of the act adopting the Code.

. . .

But the Revised Statutes, aswe have seen, are the law, and are tobe looked towith safety and confidence by the citizen; nor need one, under the rules of construction shown in the authorities cited, look into the originalacts, except to explain ambiguities in theCode.

. . .
See 246 S.W. 1019, 1024 (authorities cited therein); 1A .Kherland, Statutory Construction 4th ed. fi28.05; 53Tex. Jur.2d Statutes 99 4, 189, and 190; Freeman, The Texas Legislative Council's Statutory Revision Program, 29Tex. B.J. 1021 (1966). The rule allows for the scrutiny of prior statutes ifthe new code isunclear or ambiguous. See V.T.C.S. art. 5429b-2, 9 3.03; Honea v. United States, 344 F.2d 798 (5thCir. 1965); Orton 5 Adams, 444 P.2d 62 (Utah D;;;: Ex parte Copeland, 91 SzW.2d 700 (Tex.Crim:App.

After carefully reviewing the Parks andWildlife Code,'it isour view that the language of the Code with regard to authority to commission deputy game wardens is clear and unambiguous. While the Legislature may well have not intended to eliminate the statutory authority fordeputy game wardens, we donot believe the rules of statutory construction give us the option of looking behind thevery clear language of theAct. Accordingly, we are required to

p.3335The Honorable Clayton Garrison -page 4 (H-791)

conclude that after the Code became effective and article 978f-5f was repealed, the executive direc.torwas without authority to commission deputy game wardens. Therefore, any commission issued on or after September 1, 1975 is invalid.

Your inquiry concerning thevalidity of commissions issued before September 1, 1975 presented a somewhat different question. Undoubtedly the commissions were valid when issued if issued inconformance with the requirements of article 978f-5f. Whether such commissions remain valid isnot the controlling factor in regard to the concerns you expressed. Even if the commissions remain valid, which we do not decide in this opinion, the sole source of special authority fordeputy game wardens to enforce the laws of this state byvirtue of those commissions was under article 978f-5f. When that article was repealed, any authority arising from itwas lost. We are unable to find any suggestion that the special enforcement authority in the new Parks andWildlife Code, which isbroader than that previously available under article 978f-5f, was intended to extend todeputy game wardens. Wildlife Code 9 12.101 et seq. %&-~g~Z&a~~ptember 1, 1975, persons commissioned as deputy game wardens under article 978f-5f were no longer specially authorized to enforce the game and fish laws of this state.

SUMMARY

Acts 1975, 64thLeg., ch. 545, at 1405, which enacted the Parks andWildlife Code, repealed article 978f-5f, Texas Penal Auxiliary Laws, and eliminated authority fordeputy game wardens. Deputy game warden commissions issued after September 1, 1975 are invalid. Persons commissioned before September 1, 1975 are not authorized to continue to enforce the game and fish laws of this state aspreviously authorized by article 978f-5f.



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Attorney General of Texas

p.3336The Honorable Clayton Garrison -page 5 (H-791)

APPROVED:

DAVID M/KENDALL, Bidst Assidtant 

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C.ROBERT HEATH 

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[,Chairman Opinion Committee
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