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 Commandant of 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 approved by 

the Commandant of the United States Coast Guard 

in good and serviceable condition for each person on board. 

"(e) No person shall operate or give,permission for the operation of a vessel which is 

not equipped as r$quired by this Section or modification thereof. 

Section 14 of the Act prescribes penalties as follows: 

"(a) Every person who violates orfails to 

comply with any provision of this Act, ,shall be 

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 provisions are constitutional, 

for the following reasons. 

Subsection (d) undertakes to adopt by reference certain provisions of federal law, namely, the regulations 

issued by the Commandant of the United States Coast Guard, 

In discharge of his official duties , 

of water safety devices. 

approving certain types 

We must first determine whether 

Subsection (d) was intended to include devices approved after 

the effective date of Article 1722a, for while the Legislature 

is competent to adopt existing provisions of federal law, 

an attempted adoption of prospective provisions of 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 Commission v. Peninsular Life 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 construction of a so-called 

construction, 

as with other questions of~statutory 

Is a matter of ascertaining legislative intent. 

Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). 

Since the statute does not' expressly resolve the question, 

and since the Legislature will be presumed not~,to have intended to contravene the Constitution, County School Trustees 

v. Edna Independent School Dist., 9 S.W. 2d 506 

1928 I, 

( Civ. App. 

affirmed 34 S.W. 2d 860 (Corn. App. 1928); Santee Mills 

v. ue ry, supra, wee conclude that subsection (d) must be 

construed as including only those types of water safety devices approved by regulations of the Commandant in effect 

at the time of its enactment. See Santee~ Millsv. Query, 

.ewr&; Fla. Industrial Commission v. State, 155 Fla. 772, 

21 so. 2d 5gg (1945). Subsection (d) is therefore not 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, 
Honorable J, 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 relocating facilities of the 

utility located on public rights of way when such relocation is necessitated by the improvement or construction of 

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 evidently passed 

In order to take advantage of the provisions of the FederalAid Highway Act of 1956, which authorized payment of Federal 

funds to the states as reimbursement for expenses of utility 

relocation, so long as payment by the State to the utility 

would not violate State law or any legal contract between the 

utility and the State. 

term 'cost of relocation 

$e statute,also provided that the 

was to refer to an amount calculated 

in a specified manner, 'and otherwise as may be fixed by regulations for Federal cost participation." The Court rejected 

the contention that the statute was an unconstitutional delegation off legislative power to the United State, its Congress 

and agencies, stating: 

I, 

. . . A change in the percentage of Federal 

participation will naturally affect the amount 

which the state receives by 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 relocation is not eligible for Federal 

participation, but in making this provision the 

Legislature was simply establishing a class of relocation projects for which the utilities will be 

entitled to reimbursement. It is our opinion that 

the classification is reasonable and that the law, 

is not unconstitutional as a delegation of legislative power.' 

The question of whether Article 6674w-4 was intended to adopt 

future provisions of federal statutes or administrative ,,.regulations was not discussed. We do not believe, howe,ver, that 

this opinion is properly read as holding that such an effect 

was intended by 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 Footnote No. 1 continued at the bottom of next page.) 
Honorable J, 0. Duncan, Page 4 (WW-1001) 

Even though the Statute is notanunconstitutional 

delegation of power, the membership of this class of water 

safety devices must be ascertainable with reasonable definiteness and certainty if the Statute is to withstand an 

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 certified questions conformed to, 

166 S.W. 2d 191 (Civ. App. 1942). As to this point, a 

referenc,e to the regulations of the Commandant raises 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 Commandant of one 

type of each of the four kinds of water safety devices mentioned. In fact, Coast Guard regulations provide~for the 

approval of an indefinite number 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 2 -7, 160.049-7, 160.050-7, 160.052-q. Under 

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 

approval meet Coast Guard specifications for devices of its 

kind (whether life preserver, buoyant vest, ring buoy, or 

buoyant cushion), material (whether kapok, cork, balsawood, 

fibrous glass, or unicellular plastic 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 carrying passengers $or~hire"). As of the 

effective date 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 percentage of federal participation in 

meeting the expense of utility relocation projects. For 

the statute did not make reimbursement of the utility conditional upon a project's eligibility for federal participation in any given percentage, but only up,on its eligibility 

for federal participation. It adopted no Federal provisions, 

whether present or future, regarding the percentage of 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 Approval and Termination of Approval of Equipment, Installations, or Materials and 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 reasonable construction, 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 Legislature that the carrying of a life preserver, buoyant vest, ring buoy, or buoyant cushion of m 

of the types approved as of the effective date of Article 

1722a would satisfy the requirements of Subsection (d) of 

Section 7 of that Article. The requirements of the Statute 

thus may be precisely and definitely ascertained, 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 possibility of 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 relocation projects entitled to be undertaken at state expense to those which under 

Federal law would entitle the state to a reimbursement from the 

Federal Government was not an unreasonable classification. 

S.W. 2d 737, 746. 

331 

In the case of the present penal statute, 

however, we are concerned not with privileges dispensed by the 

Legislature, as to which the Constitution requires only that 

they be distributed without arbitrary discrimination, but 

with rights of person and property, which the Constitution T 

ather 

protects against arbitrary deprivation by the state. A legislative 

restriction upon such rights imposed by the State in the exercise 

of its police power is arbitrary and unconstitutional unless it 

bears a reasonable causal relationship to the ends sought to be 

achieved and unless the ends themselves fall within the scope of 

the legitimate concern of the State for the protection of the 

health, safety, or morals of the public. American Federation of 

Labor v. Mann, 188 S.W. 2d 276 (Civ. App. 19451, no writ history. 

s. S. Constitution, Amendment XIV; Texas Constitution, 

Article I, Section lg. 
Honorable J. 0. Duncan, Page 6 (WW-1001) 

We feel that there can be no.question but that the 

State may properly enact legislationdesigned to promote safety 

in the use of boats by private persons. The.question is 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 Commandant of the United States Coast Guard tends toward the 

achievement of this end with reasonable certainty and effectiveness. The Commandant of the United States Coast Guard, a high 

]iederal official, is under a general duty by Federal law to 

. . . promulgate and enforce regulations for,the promotion of 

safety of life and property on the high seas and on,,waters subject to the jurisdiction of the United States . . . 14 U.S.C., 

Section 1. At the time Article 1722a was enacted, furthermore, 

the Commandant had various specific duties with respect to formulating minimum standards of approval for many kinds of water 

safety devices, including the four kinds mentioned in that Article, 46 U.S.C., Sections 390b, 481, 526e, 526p, 'and had formulated 

and published many su;hCs~hdards In detail, frequently revising 

and amending them. Subsection Q, Specifications. 

While public officials aie't& invariably fair, diligent, and 

efficient in the discharge of their duties; it is reasonably 

probable, and will be presumed, that the Commandant of the Coast 

Guard has met this standard. This being the case It is also 

reasonably probable that the requirement that boats be equipped 

with safety devices of the type approved by the Commandant will 

result in the protection of the life and limb of ~members of the 

public; this, in our opinion, is all that the' Constitution requires. 

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 

Attorney General 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 ATTORNEY GENERAL 

BY: Morgan Nesbltt