November 20, 1951

Hon. William L. Taylor Opinion No. V-1352 Prosecuting Attorney Harrison County Re: Conititutlonalltyof 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 letteryou 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 prongedhorns In Panola, Rusk, Harrison,Gregg and Shelby CountiesdurIn& the period fromNovember 15th to November 25th, lncluslve, eachyear, and each out of countyhunter shallbe allowed tohunt in these countles,provtdedhe 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 threedays per season and not subject to renewal.

"Sec. 2. It shallbe unlawfulfor any person to kill or take by any method whatever any deer within Panola,Rusk, Harrison,Gregg and Shelby Countiesat any season or time of the year other than as provided In Section 1.

"Sec. 3. Any person violatingany provision of thisAct shall be guilty of a mlsdemeanor and upon conviction shallbe fined not less than Twenty-fiveDollars ($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-countyhunters, limiting them to three days' hunting during the open seasonwhile 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 regulationand is arbitrary and unjustlydiscrlmlnatory. It will also be observed that the penalty prescribedby Section 3 for violation of the Act Ismore severe than the penalty providedby the general law,Article 873, V.P.C.

Section 1 of the FourteenthAmendment to the United States Constitutionreads:

"Allpersons born or naturalized in the United States, and subject to the jurlsdlctlon thereof,are citizens of theUnited States and of the Statewherein they reside. Ho State shallmake or enforce any law which shall abridge the privileges or Immunities of citizens of theUnited 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 considerationof public services."

lslature
EP5Z State as the game game "Is The regulation of game and wild lifeby the Legof Texas IS a valid regulation under the police the State. However, any such regulation as House must not discriminateamong 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 limitingnonresldenthunters to three daysHon. wllllam L. Taylor, page 3 (v-1352)

of hunting per open season,while residenthunters may hunt during the entire period of the open season, is an arbitrary and unreasonableclassificationof hunters. The Act deprives nonresident citizens of the privilege, right, and pleasure of hunting deer for the entireperiod of the open season as residenthunters may do. It 1s our opinion that this classificationand grouping of Texas citizens is not based upon a substantialdlfference 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 ofMarion County of their IntentIon to hunt LaMarion 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 sheriffand holding the resident - nonresident classificationfor hunting inMarion County unconstitutionalfor violating the equal protection clause of theUnited States Constitution, the court said:

II

. . . the classificationof persons affected by the regulation is such that resldents of the statewho do not reside in Marion county are dlscrimlnated against In the regulatlon of a subjectas to which all the resldents of the statehave some Interest; and the dlscritnlnatlon

is apparently not founded upon any real differences in conditionswith reference to the subjectregulated. Such dlscrimInation is therefore unjust,and in effect denies to the residents of the statewho do not reside inMarion county, among thembeing the petitioner, the equal protection of the laws of the land.

"The section of the statutefor the vlolatlon of whleh the imprlaonment of the petitioner was adjudged Is therefore Invalidand Inoperativeas 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, ConstitutionalLaw, 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 countiesof 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 thereforeadvised that the provisions of Rouse Bill 584 requiringnonresidenthunters 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 inArticle 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, ConstitutionalLaw, Sec. 55, the following rule Is stated:

“A legislative enactmentmay be unconstitutionaland therefore invalidas 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 unconstitutionalportions and the constltutlonalportions are so intermingled that they cannot be severed. The constitutional and unconstitutionalprovisionsmay even be contained in the same section,and yet be perfectly distinct and separable, so that the firstmay 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 essentiallyand inseparablyconnected In substance. If the two parts can be possibly separated,the court shoulddo SOI_-
mlt the Invalidpart 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 canbe severed from the conatitutlonalportion. That which remains Is complete in itself and capable of being executed in accordance with the apparent legislative intent to fix an open seasonfor deer in the counties to which It applies, Independentof that which is rejected.

Your third question asks whether this law applies to out-of-stateas well as out-qf-countyhunters. We feel theAct is clear upon this point. The Act itselfmakes only one classiflcatlon-- resident of the county or nonresident. Out-of-statehunters fall within the category of nonresidenthunters. Since thisplovision of House Bill 584 Is unconstitutional, out-of-statehunters are not specificallyaffectedby thisAct. Their requisites for hunting are determined by other Acts regulatinghunting 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 constitutionalexcept for that portion of Section 1 which requires out-ofcounty residents to obtain a slip from the county clerk in the county inwhich he hunts restrictinghim to three days' hunting,while residents of the respective countiesmay hunt for the ten-day open season.
Section 3 pi theAct prescribing a penaltymore 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 privilegesmay not be arbitrarilygranted to one class of TexasEon. William L. Taylor, Ipage6 (V-1352)

citizensand denied to another on the basis of countyresidence.

APPROVED:

Ned McDaniel State Affairs Division

Everett Hutchinson ExecutiveAssistant

CharlesD. Mathews First Assistant Yours very truly,

PRICE DANIEL Attorney General

BY Milton Richardson

Assistant

MR: jIllC