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 of deputy 

game warden commissions 

in light of the omission 

of the authorizing statute 

from a non-substantive 

recodification of game 

and fish laws. 

Dear Nr. Garrison: 

You requested our opinion regarding the validity of 

deputy game warden commissions after September 1, 1975. 

In 1973, the 63rd Legislature authorized the executive 

director of the Parks and'wildlife Department to commission 

deputy game wardens who, after filing an oath and bond, were 

empowered to enforce state laws relating to hunting, fishing, 

and the preservation of wildlife and marine animals. Acts 

1973, 63rd Leg., ch. 151, at 353. The deputy game wardens 

were required to serve without compensation. The authorizing law was compiled as article 978f-5f of Vernon's Texas 

Penal Auxiliary Laws. Commissions were issued after 

September 1, 1973. 

Two years later the 64th Legislature enacted H.B. 1186 

embodying a comprehensive Parks and Wildlife 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1186 expressly repealed certain existing laws, including 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 a provision 

comparable to article 978f-5f specifically authorizing the 

appointment of deputy game wardens. 

p. 3333 
The 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 to continue 

enforcement of game and fish laws as authorized under omitted 

Article 978f-5f," and (2) whether commissions issued after 

September 1, 1975 are valid. The principal issue is whether 

authority granted by article 978f-5f survived enactment of 

the new Parks and Wildlife Code. In our opinion it did not. 

There is no 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deputy game warden commissions , was repealed by the law 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 and Wildlife Code. Section 2(a) of 

H.B. 1186 contained a specific express repealer of "Articles 

871 through 978n-2, Vernon's Texas Penal Code Auxiliary 

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 not mentioned at all in the new 

Parks and Wildlife Code. The only apparent source of authority for deputy game warden commissions is section 11.018 

which provides generally for the executive director of the 

Parks and ,Wildlife Department to appoint employees of the 

Department. But like its predecessor proyision, article 

978f-3a of the Texas Penal Auxiliary Laws section 11.018 

does not provide 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 to provide 

for deputy game wardens. Acts 1975, 64th Leg., ch. 743, 

at 2417. 

Section 3 of H.B. 1186 provides: 

Sec. 3. This Act is intended as a recodification only, and no substantive change 

is intended by this Act. 

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

See also V.T.C.S. art. 5429b-1. While this statement of 

legislative intent is helpful in construing the Act, the 

language of the Act designed to accomplish that intent must 

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 

in American Indemnit 

1024 (Tex. Sup. ---d---- 

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

, where it said: 

The Court went on to e,xplain at 1025: 

Codes are not mere 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, as we have 

seen, are the law, and are to be looked 

to with safety and confidence by the 

citizen; nor need one, under the rules 

of construction shown in the authorities 

cited, look into the original acts, except 

to explain ambiguities in the Code. . . . 

See 246 S.W. 1019, 1024 (authorities cited therein); 1A 

.Kherland, Statutory Construction 4th ed. fi 28.05; 53 Tex. 

Jur.2d Statutes 99 4, 189, and 190; Freeman, The Texas 

Legislative Council's Statutory Revision Program, 29 Tex. 

B.J. 1021 (1966). The rule allows for the scrutiny of prior 

statutes if the new code is unclear or ambiguous. See 

V.T.C.S. art. 5429b-2, 9 3.03; Honea v. United States, 344 

F.2d 798 (5th Cir. 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 and Wildlife 

Code, 'it is our 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 for deputy 

game wardens, we do not believe the rules of statutory 

construction give us the option of looking behind the very 

clear language of the Act. Accordingly, we are required to 

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

conclude that after the Code became effective and article 

978f-5f was repealed, the executive direc.tor was without 

authority to commission deputy game wardens. Therefore, any 

commission issued on or after September 1, 1975 is invalid. 

Your inquiry concerning the validity of commissions 

issued before September 1, 1975 presented a somewhat different question. Undoubtedly the commissions were valid 

when issued if issued in conformance with the requirements 

of article 978f-5f. Whether such commissions remain valid 

is not 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 for deputy game wardens to enforce the laws of 

this state by virtue of those commissions was under article 

978f-5f. When that article was repealed, any authority 

arising from it was lost. We are unable to find any suggestion that the special enforcement authority in the new 

Parks and Wildlife Code, which is broader than that previously available under article 978f-5f, was intended to 

extend to deputy 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, 64th Leg., ch. 545, at 1405, 

which enacted the Parks and Wildlife Code, 

repealed article 978f-5f, Texas Penal Auxiliary 

Laws, and eliminated authority for deputy 

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 as previously authorized by article 978f-5f. 

#%-JJY+ 

Attorney General of Texas 

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

APPROVED: 

DAVID M/KENDALL, Bidst Assidtant 

da 

C. ROBERT HEATH 

c- 

[, Chairman 

Opinion Committee 

jwb 

p. 3337