Honorable Homer R. Taylor Opinion No.M-938

County Attorney 304Courthouse Building Wharton, Texas 77488 Re: Revival ofArticle 1484, Vernon's Penal Code, by Dear Mr. Taylor: Senate Bill 249.

You have requested the opinion of this office onwhether Senate Bill 249,which was passed in 1971by the 62nd Legislature, revives Article 1484,Vernon's Penal Code.

Senate Bill 249 reads as follows:

"ANACT relating livestock brands

BE ITENACTED BY to the recording and re-recording of andmarks; and declaring an emergency.

THE LEGISLATURE OF THE STATE OF TEXAS:
Section 1. (a)This Act shall apply to every county in this State. In all the counties each owner of any livestock mentioned in Chapter 1of Title 121 of the Revised Civil Statutes of 1925 shall within sixmonths after thisAct takes effect have his mark andbrand for such stock recorded in the office of the county clerk of the county, These owners shall record themarks and brands whether thebrands and marks have been previously recorded ornot. (b)The owner shall have the right tohave his mark andbrand recorded inhis name who according to thepresent records of the county first recorded the brand andmark in the county, or in event it can not be ascertained from the records who first recorded the brand andmark in the county, then theperson who has been using such mark and brand the longest shall have the right to have the brand andmark recorded in his name. (c)After the expiration of sixmonths from the taking effect of thisAct all records ofmarks and brands now in existence in the county shall no longer have any force or effect and after the expiration of sixmonths only the records made after thisAct takes

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effect shall be examined or considered in recording marks and brands in the county. (d)Immediately upon the taking effect of this Act the county clerk of the county shall have this Act published in some newspaper of general circulation in the county for aperiod of thirty days. The publication shall be paid forby the county out of the general county fund. Sec. 2. All clerks in re-registering brands shall comply with Articles 6890 through 6899, inclusive, of the Revised Civil Statutes of Texas, 1925,
as amended, andwith Section 1,Chapter 273,Acts of the 41st Legislature, 1929, as amended (Article 6899a, Vernon's Texas Civil Statutes), and shall also be
aware of and comply with Articles 1484, 1485, and 1486 of the Penal Code of Texas, 1925. Sec. 3. All brands andmarks registered under theprovisions of thisAct shall be re-registered every 10years in themanner prescribed in Section 1 of thisAct. Sec. 4. The importance of this legislation and the crowded condition of the calendars in both Houses create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and this Rule ishereby suspended; and that thisAct take effect andbe in force from and after itspassage, and it is so enacted."

InAttorney General's Opinion No. O-6869 (1945), this office concluded thatArticle 1484,Vernon's Penal Code, and aportion of Article 6890,Vernon's Civil Statutes, which prohibited a livestock
owner from recording and using more than one brand ormark to identify livestock, were repealed by implication by the 1945 amendment to Article 6899,Vernon's Civil Statutes. This latter amendment, designated as Section laofArticle 6899, allowed the recordation and use by one owner of rrorethan one brand ormark andwas in irreconcilable conflict with the earlier statutes, Articles 1484 and 6890. The 1945 amendment adding Section la toArticle 6899provided that all laws andparts of laws in conflict were repealed. The legislature has
never modified the language of any of the foregoing statutes so as to require an interpretation different from that of Opinion No. O6869.

No language in Senate Bill 249 expressly attempts to revive Article 1484 of the Penal Code. Senate Bill 249 requires only that brands andmarks be recorded within the time specified andmakes no express restriction on thenumber of brands ormarks which may be recorded or used.

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Se&ion 2of Senate Bill 249provides that county clerks recording brands andmarks shall comply with various statutory provisions, including Article 6899,Vernon's Civil Statutes, and Article 1484, Vernon's Penal Code. Since Section laofArticle 6899 allows the recordation and use of more than one brand or mark andArticle 1484makes punishable by fine the use ofmore than one brand ormark, the two statutes remain in irreconcilable conflict. No language in Senate Bill 249 resolves this conflict. This office therefore remains of the opinion that Section laof Article 6899by clear implication repealed the earlier enacted Article 1484.

Should the reference toArticle 1484 in Section 2of Senate Bill 249be construed as an attempt to revive Article 1484, the attempt is ineffective in view of the Texas Constitution, Article III,

This constitutional provision prohibits the revival of a

_ _ statute repealea expressly or oy implication merely oy fererence to the repealed statute and requires that the repealed statute must be completely re-enacted before it canbe effective, Thomas
v. Groebl, 147 Tex. 70, 212 S.W. 2d 625 (1948);State Bank of Bar- v.Cloudt, 258 S.W. 248 (Tex.Civ. App.-San Antonio/ 1924, no writ-is office therefore isof the opinion that Senate Bill 249 does not revive Article 1484 of thepenal code. Section 36,which provides as follows:

"NO law shall be revived or amended by reference to its title; but in such case the acts revived, or the section or sections amended, shall be re-enacted andpublished at length."

SUMWARY

Senate Bill 249,passed by the 62nd Legislature, Legislature, does not revive repealed Article 1484, Vernon's repealed Article Vernon's Penal Code. The provision inArticle 6899, Secprovision Article tion la, that one owner may record and usemore than one brand ormark with which to identify livestock remains in effect.

Y very truly,

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Prepared by Roland Daniel Green, III assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman

Max Flusche Jerry Roberts Jack Goodman Marietta Payne

MEADE F. GRIFFIN Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

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