November 30, 1970

Honorable Hunter B. Brush Criminal District Attorney Smith County Tyler, Texas 75701

Dear Mr. Brush: Opinion No. M-737

Re: Has Article 902, Vernon's Penal Code, been repealed by Article 978j-1, of that code?

You have inquired whether Article 902,Vernon's Texas Penal Code, has been impliedly repealed byArticle 978j-1 of that Code. Article 902, originally enacted in 1925, prohibits thehunting of deer or other protected animals with artificial lights.l/ Any person violating its provisions may be fined-from $50.00 to $200.00, or confined in the county jail from thirty toninety days, orboth.



## 11 “It shallbe unlawful.

. .tohunt deer or any other animal orbird protected by this chapter, by the aid ofwhat is commonly known as a headlight orhunting-lamp, orby artificial light attached to an automobile, orby the means of any form of artificial light. Anyperson violating any of the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum of not less than fifty ($50.00) dollars nor more than two hundred ($200.00) dollars, OTby confinement in the county jail for not less than thirty (30) days nor more than ninety (90) days, OFby both such fine and imprisonment.”

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Article 9783-1, commonly known as theUniform Wildlife Regulatory Act, was enacted in 1967 to reduce the contents of seventy-one separate Acts into a single Act. For all counties placed within theUniform Act, the Parks andWildlife Commission is granted authority andpower to provide byproclamation, rule, or regulation the seasons, means, method andbag limits for the taking ofwildlife resources within such counties. Any person who violates the Uniform Act or any proclamation, rule or regulation issued by the Commission may be fined from $25.00 to $200.00 for each violation.

Section 15 of theUniform Act contains an express listing of all statutes repealed thereby. Article 902 isnotmentioned. However, Section 15 continues as follows: "Any and all laws, general and special, and not specifically saved from repeal in this section, but in conflict with theprovisions of this Act are repealed to the extent of such conflict only." Article 902 isnot specifically saved from repeal. The question remains as towhether Article 902 is in conflict with theUniform Act. 

# We see23 othing in the Uniform Act in conflict with Article 902- unless itbe thatportion of theUniform Act which grants authority to the Parks andWildlife Commission to regulate themeans andmethods whereby game birds and animals may be taken. Whether thisprovision, alone, would impliedly repeal Article 902 is answered in Section 18of theUniform Act as follows:

2/ We recognize that if anew law covers the iSholesubject matter of a former law andprescribes adifferent penalty, the former law is repealed by implication. Lanevs. State, 165Tex.Crim. 222, 305 S.W.2d 595 (Tex.Crim.App., 1957). This rule, however, isnot applicable where, aswe have concluded infra, the statutes pertain to different subject matter offenses.

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"Section 18

. . . "All game laws, General and Special,

. . .pertaining to the State of Texas or any county OTcounties therein, shallbe in full force and effect until the Parks andWildlife Commission shall, in accordancewith thisAct issue aproclamation, rule or regulation dealing with the subject matter of the county affected by suchpresently existing game law."

.Asindicated inyour letter tous, Smith County was placed within the regulatory authority of the Commission by anAct of the Legislature on June 10, 1969. Thereafter, theCommission promulgated rules for the Smith County region in "Northeast Texas Hunting Proclamation F-22 (1969- 1970)11effective October 18, 1969. Part Two of Proclamation Number F-22 concerns the general means andmethods whereby game birds and game animals may be lawfully taken: "2.01Means andMethods
"It shall be unlawful to take or attempt to take orkill or attempt tokill any gamebird or game animal except by themeans andmethods authorized under Part Two of thisproclamation." Hunting by use of artificial lights isnotmentioned in theproclamation. Therefore, since suchmeans are not expressly permitted itwould be unlawful by implication of omission to take deer or other protected animals through thismethod. It is clear, however, that the Commission, through itsproclamation, has not attempted todefine a specific offense of headlighting deer. Article 902deals specifically with this question.
Applying the rules of statutory construction, we recognize the general rule that a later statute usuallv controls anearlier statute concerning the same subject matter. cf. 53Tex.Jur.2d 149, Statutes, Section 101. Implied repeal of a statute, however, is looked uponwith disfavor by Texas courts. Standard vs. Sadler, 383S.W.2d

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,391~ITex.,1964); Gordon vs. Lake, 163Tex. 392, 356 S.W.2d 138, (1962). The doctrine of implied repeal may not be invoked merely because there is somedifference, discrepancy, inconsistency, or repugnancy between earlier and later legislation. Royalty vs.Nicholson, 411 S.W.2d ,565 (Tex.Civ.App., 1967); 53Tex.Jur.2d 148, Statutes, Section 100. Where there isno express repeal, the presumption is that in enacting anew law the Legislature intended the old statute to remain inoperation. 53 Tex.Jur.Zd 150, Statutes, Section 102. Thus, every effort ismade to reconcile two overlavvinu statutes, and unless the statutes are in irreconcilable conflict, both statutes will be allowed to stand. State vs. Jackson, 370 S.W.Zd 797, (Tex.Civ.App., 1963, aff'd 376S.W.2d 341, Tex.Sup.

_. 1964).

Where statutes do conflict, a specific statute usually prevails over ageneral statute. State vs. Humble Oil and Refining Company, 187 S.W.2d 93 (Tex.Civ.App., 1945). This rule anvlies even thouqh the general statute has been enacted more recently. Thus, - ageneral lawwill not ordinarily be held tohave repealed by implication, aparticular law, though both relate to the same subject matter. American Canal Company vs. Dow Chemical Company, 380S.W.2d 662 (Tex.Civ.App., 1964); Royalty vs.Nicholson, 411S.W.2d 565, supra.

We have concluded thatArticle 902 and theUniform Act (assupplemented by Proclamation Number F-22) may be easily reconciled. The two statutes donot contain conflicting requirements, nor do the two statutes have the same objects inmind. The Uniform Act and Proclamation F-22 areprimarily concerned with enumerating themeans andmethods bywhich gamemay be taken. Article 902 contains an express prohibition andpenalty against taking any gameby means of artificial light. There canbe a repeal by implication only when the two acts or statutory provisions treat the samematters, or their subject and object are the same. Thus, though the twomay refer to the same subject, both will stand unless their objects are the same or unless there is some irreconcilable conflict on the specific subject. Cole vs. State, 106 Tex. 472, 170 S.W.2d 1036 (Tex.,1914); Long vs. Fort Worth, 333S.W.2d 644 (Tex.Civ.App., 1960). It isour opinion that the two statutes dealwith different subject matter anddo not conflict.

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Even should the statutes be considered as conflicting, Article 902 is clearly themore specific statute. Thus, insofar as the specific subject matter of taking gameby means of artificial light is concerned, Article 902would control.2/

We recognize that the statutes overlap inasmuch as headlighting would not be authorized under either statute. The statutes, however, innoway conflict as towhat conduct isproscribed, and impose no conflicting requirements upon the hunter. We therefore conclude that the specific Article 902has vitality and that it supplements the UniformAct in Smith County. We regard the statutes as cumulative rather thanmutually exclusive. Our conclusion appears to be in conformity,with a venerated principle of statutory construction dating back to 1885where, in Lufkin vs. City ofGalveston, 63Tex. 437, the Supreme Court stated:

“As a natural result of this principle, it follows that where in one section a general rule is prescribed, which without qualification would embrace an entire class of subjects, and in another section

31 State vs. Jackson, supra, concerned the effect of a Parks andWildlife Commission proclamation directly in conflict with a specific State statute. The court in considering whether or not the latter proclamation took precedence over the earlier statutes stated as follows:
"It is further our view that if the Legislature by specific legislation closes or opens bays or title waters to certain kinds of fishing, only the Legislature by later similar specific legislation can open or close the same.” 370 S.W.Zd at 800. Wetherefore express some doubt as to whether the Commission by proclamation can repeal Article 902 by implication.

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adifferent rule isprescribed for individual subjects of the same class, the lattermust be construed as exceptions to the general rule, andbe governed by the section which is applicable to them alone."

Thus, we conclude thatArticle 902has notbeen impliedly repealed by theUniform Wildlife Regulatory Act and the Northeast Texas Hunting Proclamation F-22.

We have reached the conclusion above notwithout detailed consideration of another provision of the Uniform Act, viz., Section 15(f). Section 15, as indicated above, contains a specific listing of statutes expressly repealed by the Uniform Act. The Section also contains a listing of statutes expressly saved from repeal. Subsection (f)provides as follows:

. * ./vrovided further that:

. . . (f) inWebb CountyTrticle 901, 902 and 924a of the Penal Code of the State ofTexas shall notbe affected;

. . ." LEmphasis Added/

At first glance, this section seemingly indicates that Article 902may have been repealed in all other counties. Considering the legislative history of thisparticular provision, however, we have concluded that the language has effect only insofar as itwithdraws authority from the Commission to enact aproclamation, rule or regulation contrary to theprovisions ofArticle 902.

At this point, it ishelpful to digress with abrief history of the Parks andWildlife Commission. In 1895, the Texas Fish and Oyster Commission (predecessor of the Parks andWildlife Commission) was established. From that time until 1943, the Commission employed game wardens and other personnel to enforce the game laws of the state, but such lawswere enacted only by the Texas Legislature. In 1943, the Commission was granted regulatory authority similar to that granted by the Uniform Wildlife Regulatory Act for certain territory west of the Pecos

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River. From that date until 1967, some seventy-two separate Acts placing various counties within such regulatory authority were enacted.

In 1961, the 51st Legislature, following theprocedure above, placed Webb County within the regulatory authority of the Game and Fish Commission. Section 16of thatAct contained the following language: ,I Provided, however, Artic;e 901, that theprovisions of

Article 902, andArticle 924a of the Penal Cods of the State of Texas shall remain in full force and effect in said county." Clearly, at the time of its enactment this language had effect only to insure that the Commission regulations would never permit taking ofwild game through the use ofheadlights, orwould not change thepenalty therefor. Since the language of Section 15(f) is almost verbatim the same as in the original Webb County Act, we conclude that the language has the same effect as it originally did; i.e., authority iswithdrawn from the Commission to ever enact a regulation contrary to theprovisions ofArticle 902 in Webb County.

Our opinion is thatArticle 902, insofar as itpertains to Smith County, has not been impliedly repealed by the Uniform Wildlife Regulatory Act and Proclamation F-22. Instead, the,two statutes should beproperly regarded as cumulative and supplementary to each other.

SUMMARY Under Parks andWildlife Commission Proclamation F-22, Article 902 andArticle 9783-1, commonly known as the Uniform Wildlife Regulatory Act, are cumulative and supplementary to each other. Article 902has not been impliedly repealed in Smith County by the Uniform Wildlife Regulatory Act.

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General of Texas
Prepared by Earl S. Hines Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Glenn Brown Harold Kennedy Howard Fender John Reese
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

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