r -



### TEEA~ORNEY GENERAL 

# 0F TEI~~s

Honorable G. Curtis Jackson County Attorney Zavala county Crystal City, Texas HonorableAndrew P. Johnson County Attorney Dimmit County Carrizo Springs, Texas Opinion No WW-724
Re: Constitutionalityof H. B. No. 

### 47,Acts of the 56th Leg., Reg. Sess., 1959, and related questions concerning archery hunting

Gentlemen:

This opinion is issued in response to your request for an opinion of this office concerningthe constitutionalityof H. B. No. 

### 47,Acts of 56th Leg., Reg. Sees., 1959, Chap. 

### 189,Page 423, as amended by S. B. ' No. 

### 49,Acts of 56th Leg., 2nd Called Session, 1959, Chap. 30, Page 

### 146, and the effect on H. B. No. 

### 47,as amended, of H. B. No. 

### 962,Acts of 56th Leg., Reg. Sess., 1959, Chap. 273, Page 589. H. B. No. 

### 47and H. B. ' No. 

### 962have been published in Part 4 of Vernon's Texas Session Law S-rvice, 1959, and S. B. No. 

### 49has been published in Part 

### 6.

The first question of your inquiry reads as follows:
"Is H. B. 

### 47,as amendedby S. B. 

### 49,unconstitutional as special group legislationbecause of the provisions of Sec. ZC, there being no severability clause in the Bill?" The answer to this question is that Section 2C of H. B. No. 47, as amended, is unconstitutional,but, because the section is properly severable,despite the absence of a severabilityclause in the bill, the invalidity of Section 2C does not render the remainingprovisions of the bill unconstitutional.

S. B. No. 

### 49 only amends H. B. No. 47 to the extent of excluding from its operation certain counties, in addition to those excludedby the provisions of H. B. No. 

### 47 itself,and, therefore, amendatoryS. 8. No. 

### 49 need not be further considered in answering the questionswith which this opinion is concerned.

Section 1 of H. B. No. 47 states in part as follows: "Article 879h-1. I

Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 2. (W-724)

"There shallbe an open season, or period of time, when it shallbe lawful to hunt, take and kill solelywith bows and arrows,wild buck deer,wild bear, wild turkey gobblersand collaredpeccary or javelina in both the North and South Zones, October 1 to October 31 of each year both days inclusive." Section 1 furtherprescribes that no bow huntermay have in his possession while hunting any crossbow or firearm or use a bow or arrow other than such as are prescribedand that for certain counties the Game and Fish Commission shall determine the open season for bow hunting.

Section 2C of H. B. No. 4'7states as follows: "Provided, further, that hunting in Jack, Wise and Parker Counties shallbe done only by residents of those counties."
A declaration of the sovereigntythat abides in every state-with regard to the game within its borders was made by the Legislatureof the State of Texas inArticle 871a of the Penal Code, as follows:

"Allwild animals,wild birds, and wild fowl within the borders of this State are hereby declaredto be the property of the people of this State." Therefore, since the game in the State is the property of the people of the State as a whole, laws relating to this property,which restrict the people in the use and disposal of the game, are constitutionally valid only if they are reasonableand are not arbitrary and discriminatory.

Since Section 2C clearlybenefits residents of three counties to the detriment of the other residents of the State, who equally own the game involved,the limitedhunting authorized in Section 2C can be valid~ only if it has a proper basis as an exercise of the police power.

Consideration of the matter results only in the conclusionthat this authorizationwould not be a proper exercise of the police power as it has no reasonablebasis in conservingthe wildlife resourceswhich belong to the people. Therefore, Section 2C is unconstitutionaland invalid as violative of the FourteenthAmendment of the United States Constitutionand Sections 3 and 19 of Article I of the Texas Constitution,which provide that no person shall be deprived of propertywithout due process of law nor denied the equal protection of the laws.

Since Section 2C is unconstitutionaland thereby invalid, considerationmust be given to the effect of such invalidityon the remainder of H. B. No. 47. Although H. B. No. 47 containsno severabilityprovision,Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 3. (W-724)

the absence of such a orovision is not in itself controlling in determintng the validitv of the I ~~ .emainderof the act. See Harris CountyWater Control & Imprc ovementDist. No. 39 v. Albright, 263 S.W.2d 944,947 (1954); Gil&Ybloom ‘1 r. State, 272 S.W.2d 106,110 (Tex. Grim. 1954);Miller v. El Paso counts,146W.2d 1027,1036 (Civ.App. 1940), reversed on other grounds 1: j6x. 370, 150 S.W.2d 1000 (1941);City of Dallas v. Love, 23 S.W.2d 431, '435 (Civ. App. 1930), affirmed 40 S.W.2d 20 (1931); Tex. 515, 242 S.W. 447,454 (1922);Lawson v. App. 1920, writ refused);Young v. City of Colorado, 174 S.W.2d 986,997 (Civ. App. 1915, writ refused); and San Antonio IndependentSchool Districtv. State ex rel De&man, 173 S.W. 525,529 (Civ.App. 1915,writ refused), in each of which cases a provisionwas attacked as being unconstitutionaland the court determinedthat the validity of the remainder of the act wasnot affected thereby, despite the absence of any severabilityprovision. ~_

The Court in the San Antonio School District case presenteda very comprehensivediscussion concerningthe validity of the remainder of an ,act ,containingan unconstitutionalprovision and on page 529 stated in part as follows: .

,t

. . .where part of a statute is unconstitutional and the remainder is constitutional,if the two parts can be possibly separated courts should do so, and not permit the invalidpart to destroy the whole law. If, after the eliminationof the invalid part of the law, there remains an intelligibleand valid statute capable of being placed in executionand conformingto the general purpose and intent of the Legislature,the law will not '~ be destroyed,but held to be valid and binding except as to the excised part*" Examination of H. B. No. 47 by means of this test of its validity results in the conclusionthat the removal of invalid Section 2C leaves a statutewhich is (1) intelligible, (2) capable of being placed in execution, and (3) in conformityto the generalpurpose and intent of the Legislature. Therefore, Section 2C, which is unconstitutionaland invalid, is severable from the remainingprovisions of H. B. No. 47, which are valid and effective in view of such severance.

The general purpose and intent of the Legislature in enactingH. B. No. 47 was to provide, first, a seasonwhen game could be taken solelywith bows and arrows and, second, regulationsgoverning the equipmentused in bow hunting. This intent is obvious from considerationof the provisions of the act and is emphasizedby the statements in Section 3, the emergency clause, that there is increasinghunting pressure on game, bow hunting allows more hunting in proportion to the game killed, the number of bow hunters is increasing,and safety laws regulatingbow hunting are inadequate.Honorables G. Curtis Jackson and Andrew P. Johnson, Page 4. (W-724)

Certainly the provisions of H. B. No. 47 which would remain after Section 2C is invalidatedwould be in conformityto these purposes for which H. B. No. 47 was enacted..

Section 2C was not a part of Ii. B. No. 47 eitherwhen the bill was introducedor when committeeamendmentswere adopted upon the bill being reported favorablyto the full House. The sectionwas added to the bill justbefore the bill passed on its second reading,with the bill being immediatelypassed on its third (final) readingafter an affirmativevote of 96-to-8 to suspend the rules to permit such passage.

Since Sectlon 2C is Invalid, the result is to eliminatethe special privileges for residents of Jack, Wise, and Parker Counties and to leave the general provisions of the act effective in those counties. To ask, is this what the Legislaturemeant to do when it enactedH. B. No. 471, is to beg the question. The true test is, do the provisionsthat remain conform to the general intent of the Legislature in enacting the act? Consideration of the provisions that remain results in an affirmativeanswer.

Section 2C was an effort to superimposeon general provisions specialprivileges for a certain class of persons and as such is clearly distinguishablefrom the effort to prevent generalprovisions from applying to a certain class of persons, such as was involved in Andersonv. Wood, 137 Tex. 201, 152 S.W.2d 1084 (1941). The effort In the Anderson case statute was to prevent general provisionsapplying to a particular county,while in the present situation the effort is to secure the fullbenefits of the act (an open seasonwhere none has existedand safety regulations for the protection of bow hunters)plus specialprivileges for residents of certain counties. Even ifwe were facedwith an Anderson case type of situation,a different conclusion from that stated in the Anderson case might be indicated by Ground Water ConservationDist. No. 2 va Hawley, 304 S.W. 764 (Civ. App. 1957, error ref. n.r.e.), a more recent 'case.

in IIimmit

Your questionnumber two reads as follows:
"DoesH. B. 962, ch. 273, being passed at a later date than H. B. 47, and becoming effective thereafter,with repealing clause, repeal H.B. 47 so far as Dimmit and Zavala Counties are concerned?" With regard to this inquiry,the taking of wild life resources and Zavala Counties by bow hunting is regulatedby the provisions of H. B. No. 47 insofaras conflictsexist between the provisions of that act and H. B. No. 962.

Examination of the acts involved shows that H. B. No. 47 was given final approval by the Legislature on May 11, 1959;was approvedby the Governor on May 20, 1959, and was effective 90 days afterMay 12, 1959, theHonorables G. Curtis Jackson and Andrew P. Johnson, Page 

### 5. (w-724)

date of adjournment. H. B. No. 

### 962was given final approvalby the Legislature on May 8, 

### 1959;was approved by the Governor on May 26, 

### 1959,and was effective on September 1, 

### 1959,by terms of its Section 

### 16.

That portion of Section 1 of H. B. No. 

### 47which has already been quoted provided for a statewideopen archery season for hunting game, although anotherportion of Section 1, designatedArticle 879h-5, provided 

### that in countieswhere hunting seasons other than an archery season are less than 

### 31 days, the Game and Fish Commission shall determine the length of the archery season and shall set the openingand closing days of such season. Section 2 states that all laws or parts of laws in conflictare repealed and Sections 2A and 2B exclude certain counties from the operation of the act, although Dimmit and Zavala Counties are not among those so excluded.
H. B. No. 

### 962repealed all laws and parts of laws prescribing open and closed seasonsand means and manner for the taking of the wildlife resources of Dimmit and Zavala Counties. It further provided that efPective on and after September 1, 1959, and until a subsequentdate, the Game and Fish Commissionwould provide, by proclamation issuedafter a hearing was held, the periods of time and the means, method, place, and manner of taking wildlife resources of these two counties.

Texas courts have long adhered to that rule of statutory construction concerning enactments of the same Legislative sessionwhich is stated in Section 2020, Statutes and Statutory Constructionby J. G. Sutherland, Third Edition by Frank E. Horack, Jr., 

### 1943,Vol. 1, pages 

### 484-485:

"In the absence of an irreconcilableconflict between two acts of the same session,each will be construed to operatewithin the limits of its own terms in a manner not to conflictwith the other act. 4 However, when two acts of the same session cannotbe harmonized or reconciled,5that statutewhich is the latest enactmentwill operate to repeal a prior statute of the same session to the extent of any conflict in their term&." Section 2020 as above quoted has been citedwith approval inAttorney General's OpinionsNo. 

### o-5891,at page 

### 7, dated May 

### 30,1944,and No. 

### V-990,at page 4, dated January 

### 26,1950. The same general rule is stated in Statutes Section 

### 78, 39Tex. Jur. 

### 145,which is cited in the Texas case which was decided on the basis of a fact situationmost similar to that which now confronts us, Ex Parte De Jesus De La O., 227 S.W.2d 212 (Tex. Grim. 

### 1950). Efforts to simply construe togetherH. B. No. 47 and H. B. No. 

### 962,as two acts of the same session,prove unsatisfactory in determinat-Honorables G. Curtis Jackson and Andrew P. Johnson,Page 

### 6. (m-724)

ing which provisions of the acts regulate the taking of wildlife resources by bow hunting in Dimmit and Zavala Counties. Such being the situation,we may rely on the rule stated in the Jesus de la 0. case at page 213:

"The two acts are in irreconcilableconflict, and therefore the latter act, S. B. 425,
. . .being the latest expression of the legislature,will prevail over H. B. 

### 656

. . -". The facts of the Jesus de la 0. casewere that PI.B. No. 

### 656was enactedby the Legislature on June 21, 1949, and was effectiveupon its approval by the governor on June 29, 

### 1949. S. B. No. 425 was enacted by the same Legislature on June 22, 

### 1949,and was approvedby the Governor on June 29, 1949, to become effective 

### 90 days after adjournmentof the Legislature. The date relied upon by the court in the Jesus de la 0. case to determinewhich of the acts was "the latest expression of the Legislature" was the date when the Legislature itself finally enacted (approved)the particular act. This choicewas the most reasonable one since the court admittedly is only endeavoringto follow the intent of the Legislature itself in determiningwhich provisions are applicable in a given situation. Likewise Section 2020 of the Sutherlandwork refers to "the latest enactment" as governing, and, with every Texas act initiallyproclaiming "Be it enactedby the Legislature of the State of Texas", the approval of the Legislature constitutesthe enactingto which reference is made.

The answer to the question therefore is that, insofaras provisions of H. B. No. 47 and H. B. No. 

### 962are in conflict,the provisions of H. B. No. 

### 47 governbecause that act represents the latest expression of the Legislature,having been fir&ly approved by the Legislature on May 11, 

### 1959,some three days after the same Legislature finally approvedH. B. NO. 

### 962 on May 8, 1959.

In view of the answers of this opinion to your first and second questions,there appears no need to answer your third and fourth questions. Since under this opinion,with regard to bow hunting, provisions of H.B. No. 47 governwhen they conflictwith B. 

### ~..962provisions,Dimmit and Zavala Counties are under H0 B. No. 47-

It may be noted that, since there were no other hunting seasons in either county since September 1, 

### 1959,as a result of H. B. No. 

### 962 being effective other than as to bow hunting, the two countiesat the time of your request for an opinionwere withinArticle 879h-5 of Ii. B. No. 

### 47 as countieswhere the hunting season is less than 

### 31 days. Therefore, such bow hunting seasonas would exist in Dimmit and Zavala Countieswould be that providedby the Game and Fish Commissionby proclamationunder the provisions of B. B. No. 47.Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 7. (WW-724)

This result is consistentwith the pattern followedby the Legislature in enactingH. B. No. 

### 47, since all 

### 98 countieswhose wildlife resources are under the regulatoryauthority of the Game and Fish Commission were either completely excepted from the provisions of H. B. No. 

### 47 or are within the less-than-31-dayhunting seasonprovision,Article 

### 879h-5% This, of course,means that the wildlife resources of none of these 

### 98 countieswere subjectedto the automaticallyapplicable October 

### l-31bow hunting seasonprovidedby Article 

### 879h-1of H. B. No. 

### 47,but rather would stillbe within the regulatoryauthority of the Game and Fish Commission.
SUMMARY Section 2C of H. B. No. 

### 47,as amended, is unconstitutional,but, because the section is properly severable, despite the absence of a severabilityclause in the bill, the invalidityof Section 2C does not render the remainingprovisions of the bill unconstitutional. The taking of wildlife resources in Dimmit and Zavala Countiesby bow hunting is governedby the provisions of H. B. No. 

### 47 insofaras conflicts exist between provisions of H. B. No. 962 and H. B. No. 

### 47, which was the latest approvedby the Legislatureand therefore representsthe latest expression of the Legislature. Very truly yours, WILL WILSON Attorney General of Texas

By: Assistant Cl?C:awHonorable6 G. Curtis Jackson and Andrew P. Johnson, Page 8. 

### (w-72’+)

APPROVED: OPINION COMMITTEE:
W. V. Geppert, Chairman Houghton Brownlee R. V. Loftin, Jr. W. 0. Shultz
REVIEWED FOR THE ATTORNEY GEXiERAL BY: Leonard Passmore