November 20, 1951 

Hon. William L. Taylor Opinion No. V-1352 

Prosecuting Attorney 

Harrison County Re: Conititutlonallty of 

Marshall, Texas House Bill 584, Acts 

52nd Leg., R.S. 1951, 

regulating the taking 

and kllllng of deer In 

Panola, Rusk, Harrison, 

Gregg, and Shelby CounDear Mr. Taylor: ties. 

In your recent letter you ask whether House 

Bill 584, Acts 52nd Leg., R.S. 1951, ch. 493, p. 1195, 

Is constitutional. House Bill 584 reads in part as follows: 

"Section 1. It shall be~lawful to take 

or kill buck deer with pronged horns In Panola, 

Rusk, Harrison, Gregg and Shelby Counties durIn& the period from November 15th to November 

25th, lncluslve, each year, and each out of 

county hunter shall be allowed to hunt in these 

countles, provtded he has a hunting license and 

a slip from the county clerk of the county in 

which he intends to hunt; this slip to be valid 

for three days per season and not subject to renewal. 

"Sec. 2. It shall be unlawful for any person to kill or take by any method whatever any 

deer within Panola, Rusk, Harrison, Gregg and 

Shelby Counties at any season or time of the 

year other than as provided In Section 1. 

"Sec. 3. Any person violating any provision of this Act shall be guilty of a mlsdemeanor and upon conviction shall be fined not less 

than Twenty-five Dollars ($25) nor more than 

Five Hundred Dollars ($500) or by confinement 

in the county jail for not less than ten (10) 

days nor more than six (6) months or both such 

fine and imprisonment." 
Hon. William L. Taylor, page 2 (V-1352) 

Your first reason for questioning the constitutionality of House Bill 584 Is that the Act diacrimInates against out-of-county hunters, limiting them to 

three days' hunting during the open season while county 

residents are not so limited. You feel the classlficatlon of persons as resident and nonresident of the respective counties is unreasonable in relation to the 

spirit and purpose of the regulation and is arbitrary 

and unjustly discrlmlnatory. It will also be observed 

that the penalty prescribed by Section 3 for violation 

of the Act Is more severe than the penalty provided by 

the general law, Article 873, V.P.C. 

Section 1 of the Fourteenth Amendment to the 

United States Constitution reads: 

"All persons born or naturalized in the 

United States, and subject to the jurlsdlctlon thereof, are citizens of the United 

States and of the State wherein they reside. 

Ho State shall make or enforce any law which 

shall abridge the privileges or Immunities 

of citizens of the United States; nor shall 

any State deprive any person of life, liberty, 

or property, without due process of law; nor 

deny to any person within Its jurlsdictlo~ 

the equal protection of the law&" (Emphasis 

added.) 

Texas Constitution, Article I, Section 3, reads: 

"All free men, when they form a social 

compact, have equal rights, and no man or 

set of men, is entitled to exclusive aeparate public emoluments, or privileges, but in 

consideration of public services." 

lslature 

EP5Z 

State as 

the game 

game "Is 

The regulation of game and wild life by the Legof Texas IS a valid regulation under the police 

the State. However, any such regulation as House 

must not discriminate among the citizens of the 

to their right and privilege to take and enjoy 

and wild life of the State. This wild life or 

owned by the'state of Texas in trust for all of 

the people of the state." Att'y Gen. Op. V-22 (1947). 

It Is our opinion that the dividing of hunters 

of deer within a county Into two groups, resident and nonTesident, and limiting nonresldent hunters to three days 
Hon. wllllam L. Taylor, page 3 (v-1352) 

of hunting per open season, while resident hunters may 

hunt during the entire period of the open season, is an 

arbitrary and unreasonable classification of hunters. 

The Act deprives nonresident citizens of the privilege, 

right, and pleasure of hunting deer for the entire period of the open season as resident hunters may do. It 

1s our opinion that this classification and grouping of 

Texas citizens is not based upon a substantial dlfference In relation to the subject of the Act. 

In Harper v. Gal-, 51 so. 226 (Fla. sup. 

1910). the petitioner for a writ of habeas COPRUS was 

ci-iar&d with violation of a game law of Florida requiring nonresidents of Marion County, Florida, to give three 

days' notice to the game warden of Marion County of their 

IntentIon to hunt La Marion County and to purchase a lltense for the privilege. Residents of Marion County were 

not required to give notice or have a license. In discharging the petitioner from custody of the sheriff and 

holding the resident - nonresident classification for 

hunting in Marion County unconstitutional for violating 

the equal protection clause of the United States Constitution, the court said: 

II . . . the classification of persons affected by the regulation is such that resldents of the state who do not reside in Marion 

county are dlscrimlnated against In the regulatlon of a subject as to which all the resldents of the state have some Interest; and the 

dlscritnlnatlon is apparently not founded upon 

any real differences in conditions with reference to the subject regulated. Such dlscrimInation is therefore unjust, and in effect 

denies to the residents of the state who do 

not reside in Marion county, among them being 

the petitioner, the equal protection of the 

laws of the land. 

"The section of the statute for the vlolatlon of whleh the imprlaonment of the petitioner was adjudged Is therefore Invalid and 

Inoperative as to residents of this state; 

. . . (51 so. at 230.) 

To the same effect is Hill v. State, 53 So. 411 (Miss. 

sup. 1910). 
Eon. William L. Taylor, page 4 (V-1352) 

16 C.J.S. 1094, Constitutional Law, Sec. 536, 

In discussing game statutes similar to House Bill 584 

contains the following statement: 

“Such a statute. . . Is a denial of the 

equal protection of the law If It unjustly 

diserlmlnates against any of the people of 

the state, as where It grants to the inhabitants of the various counties of the state the 

right to take game w&thin their respective 

counties, to the exclusion of, or on more 

favorable terms than, other residents of the 

state; . . .‘I 

You are therefore advised that the provisions 

of Rouse Bill 584 requiring nonresident hunters to acquire a slip from the county clerk good for only three 

days’ hunting is unconstitutional. Section 3 of the 

Act prescribing a penalty different from and more severe 

th;hl;at prescribed in Article 873, V.P.C., Is likewise 

I@ Parte Sizemore, 8 S.W.2d 134 (Tex. Grim. 

1928); Ex Papte Carson 159 S.W.2d 126 (Tex. Crlm. 1942); 

Att’y Gen. op. v-1315 (1951). 

In 9 Tex. Jur. 472, Constitutional Law, Sec. 

55, the following rule Is stated: 

“A legislative enactment may be unconstitutional and therefore invalid as to some 

of its provlslons, and valid as to others. 

Indeed, it is elementary law that a statute 

will always be sustained, as to portions 

which are not unconstitutional, unless the 

unconstitutional portions and the constltutlonal portions are so intermingled that 

they cannot be severed. The constitutional 

and unconstitutional provisions may even be 

contained in the same section, and yet be 

perfectly distinct and separable, so that 

the first may stand though the last fall. 

The point is, not whether they are contained 

In the same section, for the distribution lnto sections Is purely artificial, but whether 

they are essentially and inseparably connected 

In substance. If the two parts can be possibly 

separated, the court should do SO 

I_- 

mlt the Invalid part to destroy i&w’ 

@iii~a$is added.) 
Hon. William L. Taylor, page 5 (V-1352) 

It is our opinion that the unconstitutional 

provisions of House Bill 584 can be severed from the 

conatitutlonal portion. That which remains Is complete 

in itself and capable of being executed in accordance 

with the apparent legislative intent to fix an open 

season for deer in the counties to which It applies, 

Independent of that which is rejected. 

Your third question asks whether this law 

applies to out-of-state as well as out-qf-county hunters. We feel the Act is clear upon this point. The 

Act itself makes only one classiflcatlon -- resident 

of the county or nonresident. Out-of-state hunters 

fall within the category of nonresident hunters. Since 

this plovision of House Bill 584 Is unconstitutional, 

out-of-state hunters are not specifically affected by 

this Act. Their requisites for hunting are determined 

by other Acts regulating hunting throughout the State. 

SUMMARY 

Section 1 of House Bill 584, Acts 52nd 

Leg., R.S. 1951,' ch. 493, p. 1195, providing 

for a ten-day open season for hunting deer 

in Panola, Rusk, Harrison, Oregg,and Shelby 

Counties Is constitutional except for that 

portion of Section 1 which requires out-ofcounty residents to obtain a slip from the 

county clerk in the county in which he hunts 

restricting him to three days' hunting, while 

residents of the respective counties may hunt 

for the ten-day open season. 

Section 3 pi the Act prescribing a penalty more severe than that flxed by general 

law, Article 873, V.P.C., Is likewise Invalid. 

The wild game of this State is owned by 

the State in tpqst for all of the people of 

the State. Hunting privileges may not be 

arbitrarily granted to one class of Texas 
Eon. William L. Taylor, Ipage 6 (V-1352) 

citizens and denied to another on the basis 

of county residence. 

APPROVED: 

Ned McDaniel 

State Affairs Division 

Everett Hutchinson 

Executive Assistant 

Charles D. Mathews 

First Assistant 

Yours very truly, 

PRICE DANIEL 

Attorney General 

BY 

Milton Richardson 

Assistant 

MR: jIllC