## THEA'ITORNEY.GENERAL
OF TEXAS

FVILL WILSON A-- **GENERAL** AUSTIN 11. TEXAS

February 27, 

## 1961

Honorable J. 0. District-County Gilmer, Texas Duncan

Attorney Opinion No. .WW-1001

Re: Constitutionality of Subsection (cl),

Section 7 ,of Artlcle~l722a,

The Water. Safety Act, requiring every motorboat to carry life preservers of the type approved by the Commandantof the Dear Mr. Duncan: United States Coast Guard.

In your letter re uesting an opinion from this office you ask whether Subsection ? d), Section 7 of Article 1722a, The Water Safety Act, is constitutional.

Section 7, Article 1722a of Vernon's Penal Code, Acts 1959, 56th Legislature,chapter 179, page 

## 369, statesin part:
"(d) Every motorboat or vessel shall have aboard one life preserver,buoyant vest, ring buoy or buoyant cushion of the type approvedby the Commandantof the United States Coast Guard in good and serviceablecondition for each person on board.
"(e) No person shall operate or give,permission for the operationof a vessel which is not equippedas r$quiredby this Section or modification thereof.

Section 14 of the Act prescribespenaltiesas follows:

"(a) Every person who violates orfails to comply with any provision of this Act, ,shallbe guilty of a misdemeanor.
"(b) Every person convicted of a misdemeanor for which another penalty isnot .provided shall be :Honorable J. 0. Duncan, Page 2 (WW-1001)

punished by a fine of not less than Ten Dol-' lars ($10) nor more than Fifty Dollars ($50)."

In our opinion, these provisionsare constitutional, for the followingreasons.

Subsection (d) undertakes to adopt by referencecertain provisionsof federal law, namely, the regulations issued by the Commandantof the United States Coast Guard, In discharge of his officialduties
, of water safety devices. approving certain types We must first determinewhether Subsection (d) was intended to includedevices approved after the effectivedate of Article 1722a, for while the Legislature is competent to adopt existingprovisionsof federal law,
an attemptedadoption of prospective provisionsof federal law, whether statute or administrative regulation,is unconSee State v. Urauhart, 50 Wash. and cases cited therein; Santee Mills v. Query, 122 S.C. Superior Court, 115 S.E. 202 (1922);Brock v.

9 Cal. 26 291, 71 P. 2d 209,(1943);Fla. Industrial Commissionv. PeninsularLife Ins. Co., 152 Fla. 55, 10 but Bee People v. Goldfogle, 242 N.Y. 277, Ex Parte Lasswell, 1 Cal. App. 2d 183, In Texas the constructionof a so-called
construction, as with other questionsof~statutory

Is a matter of ascertaininglegislativeintent. Trimmierv. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). Since the statutedoes not' expresslyresolve the question, and since the Legislaturewill be presumed not~,to have intended to contravenethe Constitution, County School Trustees
v. Edna IndependentSchool Dist., 9 S.W. 2d 506 1928I, ( Civ. App. affirmed 34 S.W. 2d 860 (Corn. App. 1928); Santee Mills

v. ue ry, supra, wee

conclude that subsection (d) must be construedas including only those types of water safety devices approved by regulationsof the Commandantin effect at the time of its enactment. See Santee~ Millsv. Query, .ewr&; Fla. IndustrialCommissionv. State, 155 Fla. 772, 21 so. 2d 5gg (1945). Subsection (d) is thereforenot unconstitutional

as a delegation of legislative power; its reference to types of water safety devices approved by the Commandant serves merely to set forth the class of water safety devices required to be carried aboard in order to avoid the penalties of Section 14. State v. City of Austin, et al,HonorableJ, 0. Duncan, Page 3 (WW-1001)

331 S.W. x1 737,-Tex.- (lg6o).l

%his case involved the constitutionality of Article 6674w-4, which provides for reimbursement by the State to utilities of the expense of relocatingfacilitiesof the utility located on public rights of way when such relocation is necessitated by the improvementor constructionof certain designated interstate highways,provide: that "such, location Is eligible for Federal participation. Acts 1957, 55th Legislature,

page 724, Chapter 300, Sec. 4A. The Supreme Court noted in its opinion that this Act was evidentlypassed In order to take advantage of the provisionsof the FederalAid Highway Act of 1956, which authorizedpayment of Federal funds to the states as reimbursementfor expenses of utility relocation,so long as payment by the State to the utility would not violate State law or any legal contractbetween the utility and the State. term 'cost of relocation $e statute,also

provided that the
was to refer to an amount calculated in a specifiedmanner, 'and otherwiseas may be fixed by regulations for Federal cost participation." The Court rejected the contentionthat the statute was an unconstitutionaldelegation off

legislative

power to the United State, its Congress and agencies, stating:

I,

. . . A change in the percentage of Federal participationwill naturally affect the amount which the state receivesby way of reimbursement, but will not alter in any way the obligation of the state to the utilities. No part of the expense will be paid by~the state, of course, if the relocationis not eligible for Federal participation,

but in making this provision the Legislaturewas simply establishing a class of relocationprojects for which the utilities will be entitled to reimbursement. It is our opinion that the classification is reasonableand that the law, is not unconstitutional as a delegationof legislative power.'

The question of whether Article 6674w-4 was intended to adopt future provisionsof federal statutesor administrative,,.regulations was not discussed. We do not believe,howe,ver, that this opinion is properly read as holding that such an effect
was intendedby the Legislature (but that the Article so construed is nevertheless not an unconstitutional delegation of power to the federal government). We take this view notwithstanding the language in the opinion regarding future changes (See FootnoteNo. 1 continuedat the bottom of next page.)Honorable J, 0. Duncan, Page 4 (WW-1001)

Even though the Statute is notanunconstitutional delegationof power, the membershipof this class of water safety devices must be ascertainable with reasonabledefiniteness and certainty if the Statute is to withstandan attack as insufficiently definite to afford due process of law. Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W. 2d 446 (1942),answers to certifiedquestionsconformed to, 166 S.W. 2d 191 (Civ. App. 1942). As to this point, a referenc,e

to the regulationsof the Commandantraises some initial doubt. In the first place, Section 7 of Article 1722a requires 'one life preserver,buoyant vest, ring buoy
or buoyant cushion of the type apar'oved by the Commandant of the United States Coast Guard. Literally read, the Statute contemplates an approval by the Commandantof one type of each of the four kinds of water safety devices mentioned. In fact, Coast Guard regulations provide~forthe approval of an indefinitenumber of types of life preservers,, buoyant vests, ring buoys, and buoyant cushions. 46 C.F.R. 160.002-7,160.00 -7, 160.004-7,160.005-7,16o.oog-7, 160.047-7,160.04 -7, 160.049-7,160.050-7,160.052-q. Under

2 these regulations,the basic requisite for approval of a type of water safety device of one of the four kinds mentioned in Section 7 of Article 1722a is that the type submitted for approvalmeet Coast Guard specifications for devices of its kind (whetherlife preserver,buoyant vest, ring buoy, or buoyant cushion),material (whetherkapok, cork, balsawood, fibrous glass, or unicellularplastic foam), and intended
use (some specifications are~for devices foruse 'on merchant vessels, others for devices for use on motor boats, still others for devices to be used on "motor boats of classes A, 1, or 2 not carryingpassengers $or~hire"). As of the effectivedate of Article 1722a, furthermore, there were many types of water safety devices of each of,the four general kinds mentioned in that Article which had been approved by the

'(Cont'd.) i

n the percentageof federal participationin meeting the expense of utility relocationprojects. For the statutedid not make reimbursement of the utility conditional upon a project's eligibilityfor federalparticipation in any given percentage,but only up,on its eligibility for federalparticipation. It adoptedno Federal provisions, whetherpresent or future, regardingthe percentageof Federal participation.

2Ninety days after May 12, 1959.Honorable J. 0. Duncan, Page 5 (WW-1001)

Commandant,each type having been found to meet the basic specifications

for devices of its general kind. 1959 Federal Register 1871 f.f., See, e.g., Notice of United States Coast Guard of Approvaland Terminationof Approval of Equipment, Installations, or Materialsand Change in Name and Address of Manufacturers, March 10, 1959.

Since a Statute is not to be held unconstitutional if it is subject to any other reasonableconstruction, State v. City of Austin, su ra; see TraDD v. Shell 011 Co., 145 323, 198 S.W. zdT%-(1g46)
, we conclude that it was the intent of the Legislaturethat the carrying of a life preserver, buoyant vest, ring buoy, or buoyant cushion of m of the types approved as of the effectivedate of Article 1722a would satisfy the requirementsof Subsection (d) of Section 7 of that Article. The requirementsof the Statute thus may be precisely and definitelyascertained,so as to
remove any question of its constitutionality in this respect.

The fact that the Statute is not unconstitutional as a delegation of legislative power or as an insufficiently definite penal law does not, of course,preclude the possibilityof unconstitutionality

on other grounds. State v. City of Austin, sum-q, held, in addition to the holding already cited, that a statute limiting the class of utility relocationprojects entitled to be undertakenat state expense to those which under Federal law would entitle the state to a reimbursementfrom the Federal Governmentwas not an unreasonableclassification. S.W. 2d 737, 746. 331 In the case of the present penal statute, however, we are concernednot with privilegesdispensedby the Legislature,

as to which the Constitution requires only that they be distributedwithout arbitrarydiscrimination, but with rights of person and property, which the Constitution T atherprotects against arbitrarydeprivationby the state. A legislative restriction

upon such rights imposed by the State in the exercise of its police power is arbitraryand unconstitutional unless it bears a reasonablecausal relationshipto the ends sought to be achieved and unless the ends themselvesfall within the scope of the legitimateconcern of the State for the protectionof the health, safety, or morals of the public. AmericanFederationof Labor v. Mann, 188 S.W. 2d 276 (Civ. App. 19451, no writ history.



# s. S. Constitution, AmendmentXIV; Texas Constitution, Article I, Section lg.HonorableJ. 0. Duncan, Page 6 (WW-1001)

We feel that there can be no.questionbut that the State may properly enact legislationdesigned to promote safety in the use of boats by private persons. The.questionis whether making it a penal offense to operate a,,boat without a life preserver or other water safety device of the type approved by the Commandantof the United States Coast Guard tends toward the achievementof this end with reasonablecertaintyand effectiveness. The Commandantof the United States Coast Guard, a high ]iederal

official, is under a general duty by Federal law to

. . . promulgateand enforce regulationsfor,thepromotion of safety of life and property on the high seas and on,,waterssubject to the jurisdiction of the United States

. . . 14 U.S.C., Section 1. At the time Article 1722a was enacted, furthermore, the Commandanthad various specificduties with respect to formulatingminimum standardsof approval for many kinds of water safety devices, includingthe four kinds mentioned in that Article, 46 U.S.C., Sections 390b, 481, 526e, 526p,'and had formulated and publishedmany su;hCs~hdards In detail, frequentlyrevising and amending them. SubsectionQ, Specifications. While public officialsaie't& invariablyfair, diligent, and efficient in the discharge of their duties; it is reasonably probable,and will be presumed, that the Commandantof the Coast Guard has met this standard. This being the case It is also reasonablyprobable that the requirementthat boats be equipped with safety devices of the type approvedby the Commandantwill result in the protection of the life and limb of ~members of the public; this, in our opinion, is all that the' Constitutionrequires.
Consequently, we conclude that Subsection (d), Section 7 of Article 1722a,Vernon's Penal Code, is constitutional.

SUMMARY
Subsection (d), Section 7 of Article 1722a, Vernon's Penal Code, is constitutional.

Yours very truly,.

WILL WILSON AttorneyGeneral of Texas

wExr%w Assistant

LH:mm/hmc.

Honorable J. 0. Duncan, Page 7 (WW-1001)

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

Ben Harrison Marietta Payne Arthur Sandlln Iola Wilcox Joe Osborn

REVIEWED FOR THE ATTORNEYGENERAL BY: Morgan Nesbltt