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been repealed by 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Penal Code, has been impliedly repealed by Article 978j-1 

of that Code. Article 902, originally enacted in 1925, 

prohibits the hunting 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 to ninety days, or both. 

11 “It shall be unlawful. . . to hunt deer or 

any other animal or bird protected by this chapter, by the aid of what is commonly known as a 

headlight or hunting-lamp, or by artificial light 

attached to an automobile, or by the means of any 

form of artificial light. Any person 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, OT by confinement in the county jail for 

not less than thirty (30) days nor more than ninety 

(90) days, OF by both such fine and imprisonment.” 

-3384- 
. . 

Honorable Hunter B. Brush, Page 2 (M- 737 ) 

Article 9783-1, commonly known as the Uniform 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 the Uniform Act, the Parks 

and Wildlife Commission is granted authority and power to 

provide by proclamation, rule, or regulation the seasons, 

means, method and bag limits for the taking of wildlife 

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 the Uniform Act contains an express 

listing of all statutes repealed thereby. Article 902 

is not mentioned. 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 the provisions of this Act 

are repealed to the extent of such conflict only." 

Article 902 is not specifically saved from repeal. The 

question remains as to whether Article 902 is in conflict 

with the Uniform Act. 

We see23 

othing in the Uniform Act in conflict with 

Article 902- unless it be that portion of the Uniform 

Act which grants authority to the Parks and Wildlife 

Commission to regulate the means and methods whereby 

game birds and animals may be taken. Whether this provision, alone, would impliedly repeal Article 902 is 

answered in Section 18 of the Uniform Act as follows: 

2/ We recognize that if a new law covers the 

iShole subject matter of a former law and prescribes 

a different penalty, the former law is repealed by 

implication. Lane vs. State, 165 Tex.Crim. 222, 

305 S.W.2d 595 (Tex.Crim.App., 1957). This rule, 

however, is not applicable where, as we have concluded infra, the statutes pertain to different 

subject matter offenses. 

-3385- 
. 

Honorable Hunter B. Brush, Page 3 (M-737) 

"Section 18 

. . . 

"All game laws, General and Special, . . . pertaining to the State of Texas or any county OT counties 

therein, shall be in full force and effect until 

the Parks and Wildlife Commission shall, in accordance with this Act issue a proclamation, rule or 

regulation dealing with the subject matter of the 

county affected by such presently existing game law." 

.As indicated in your letter to us, Smith County was 

placed within the regulatory authority of the Commission 

by an Act of the Legislature on June 10, 1969. Thereafter, 

the Commission promulgated rules for the Smith County region in "Northeast Texas Hunting Proclamation F-22 (1969- 

1970) 11 effective October 18, 1969. Part Two of Proclamation 

Number F-22 concerns the general means and methods whereby 

game birds and game animals may be lawfully taken: 

"2.01 Means and Methods 

"It shall be unlawful to take or attempt to 

take or kill or attempt to kill any game bird 

or game animal except by the means and methods 

authorized under Part Two of this proclamation." 

Hunting by use of artificial lights is not mentioned in 

the proclamation. Therefore, since such means are not 

expressly permitted it would be unlawful by implication of 

omission to take deer or other protected animals through 

this method. It is clear, however, that the Commission, 

through its proclamation, has not attempted to define a 

specific offense of headlighting deer. Article 902 deals 

specifically with this question. 

Applying the rules of statutory construction, we 

recognize the general rule that a later statute usuallv 

controls an earlier statute concerning the same subject 

matter. cf. 53 Tex.Jur.2d 149, Statutes, Section 101. Implied repeal of a statute, however, is looked upon with 

disfavor by Texas courts. Standard vs. Sadler, 383 S.W.2d 

-3386- 
Honorable Hunter B. Brush, Page 4 (M-737) 

,391 ~ITex., 1964); Gordon vs. Lake, 163 Tex. 392, 356 S.W.2d 

138, (1962). The doctrine of implied repeal may not be 

invoked merely because there is some difference, discrepancy, inconsistency, or repugnancy between earlier and 

later legislation. Royalty vs. Nicholson, 411 S.W.2d 

,565 (Tex.Civ.App., 1967); 53 Tex.Jur.2d 148, Statutes, 

Section 100. Where there is no express repeal, the 

presumption is that in enacting a new law the Legislature 

intended the old statute to remain in operation. 53 

Tex.Jur.Zd 150, Statutes, Section 102. Thus, every effort 

is made 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 376 S.W.2d 341, Tex.Sup. 

1964). 

Where statutes do conflict, a specific statute usually 

prevails over a general 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, a -general law will not ordinarily be 

held to have repealed by implication, a particular law, 

though both relate to the same subject matter. American Canal 

Company vs. Dow Chemical Company, 380 S.W.2d 662 (Tex.Civ.App., 

1964); Royalty vs. Nicholson, 411 S.W.2d 565, supra. 

We have concluded that Article 902 and the Uniform 

Act (as supplemented by Proclamation Number F-22) may be 

easily reconciled. The two statutes do not contain conflicting requirements, nor do the two statutes have the 

same objects in mind. The Uniform Act and Proclamation 

F-22 are primarily concerned with enumerating the means 

and methods by which game may be taken. Article 902 contains an express prohibition and penalty against taking 

any game by means of artificial light. There can be a 

repeal by implication only when the two acts or statutory 

provisions treat the same matters, or their subject and 

object are the same. Thus, though the two may 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, 

333 S.W.2d 644 (Tex.Civ.App., 1960). It is our opinion 

that the two statutes deal with different subject matter 

and do not conflict. 

-3387- 
Honorable Hunter B. Brush, Page 5 (M- 737) 

Even should the statutes be considered as conflicting, 

Article 902 is clearly the more specific statute. Thus, 

insofar as the specific subject matter of taking game by 

means of artificial light is concerned, Article 902 would 

control.2/ 

We recognize that the statutes overlap inasmuch as 

headlighting would not be authorized under either statute. 

The statutes, however, in no way conflict as to what conduct is proscribed, and impose no conflicting requirements 

upon the hunter. We therefore conclude that the specific 

Article 902 has vitality and that it supplements the Uniform Act in Smith County. We regard the statutes as cumulative rather than mutually exclusive. Our conclusion 

appears to be in conformity,with a venerated principle of 

statutory construction dating back to 1885 where, in 

Lufkin vs. City of Galveston, 63 Tex. 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 and Wildlife 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. 

We therefore express some doubt as to whether the 

Commission by proclamation can repeal Article 902 

by implication. 

-3388- 
Honorable Hunter B. Brush, Page 6 (M- 737 ) 

a different rule is prescribed for individual subjects of the same class, the latter must be construed as exceptions to the general rule, and be 

governed by the section which is applicable to 

them alone." 

Thus, we conclude that Article 902 has not been impliedly 

repealed by the Uniform Wildlife Regulatory Act and the 

Northeast Texas Hunting Proclamation F-22. 

We have reached the conclusion above not without 

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) in Webb 

CountyTrticle 901, 902 and 924a of the Penal Code of 

the State of Texas shall not be affected; . . ." 

LEmphasis Added/ 

At first glance, this section seemingly indicates that 

Article 902 may have been repealed in all other counties. 

Considering the legislative history of this particular provision, however, we have concluded that the language has 

effect only insofar as it withdraws authority from the 

Commission to enact a proclamation, rule or regulation 

contrary to the provisions of Article 902. 

At this point, it is helpful to digress with a brief 

history of the Parks and Wildlife Commission. In 1895, 

the Texas Fish and Oyster Commission (predecessor of 

the Parks and Wildlife 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 laws were 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 

-3389- 
Honorable Hunter B. Brush, Page 7 (M- 737 ) 

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 the procedure 

above, placed Webb County within the regulatory authority of 

the Game and Fish Commission. Section 16 of that Act contained 

the following language: 

,I Provided, however, 

Artic;e 901, 

that the provisions of 

Article 902, and Article 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 of wild game through the use of headlights, or would not change the penalty 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 is withdrawn from the Commission to ever enact a 

regulation contrary to the provisions of Article 902 in 

Webb County. 

Our opinion is that Article 902, insofar as it pertains to Smith County, has not been impliedly repealed 

by the Uniform Wildlife Regulatory Act and Proclamation 

F-22. Instead, the,two statutes should be properly regarded as cumulative and supplementary to each other. 

SUMMARY 

Under Parks and Wildlife Commission Proclamation 

F-22, Article 902 and Article 9783-1, commonly 

known as the Uniform Wildlife Regulatory Act, 

are cumulative and supplementary to each other. 

Article 902 has not been impliedly repealed in 

Smith County by the Uniform Wildlife Regulatory 

Act. 

-3390- 
Honorable Hunter B. Brush, Page 8 (M- 737 1 

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 

-3391-