May 12, 1967

Honorable Jack Hightawer Chairman Gameand Fieh Committee State Senator Austin, Texas

Dear Senator Hightower:

You regueet an opinion from this office aa to the Opinion No. M- 73 Re: Constitutionality of H.B. No. 741 of the 60th Legislature, with amendment8 thereto.

constitutionality of H.B. No. 741 of the 60th Legislature, with amendments thereto, FQr clarity wewill stats the Bill,as proposed.

ANACT "ABTLL TOBEENTITLED ,, relating to reciprocal hunting and fitihing privileges between Texas resldents and residents of other States; and declaring an emergency. "Section 1, The Parks andWildlife Department shall Issue a Texas Hunting and Fishing License for the samefee a8 is charged re@ldent@ of Texas if it is shown that the nonresident applicant's state grants a similar, reciprocal privilege to residents of the State of Texas. 'ISec. 2. Aresident of Louisiana may engage in lawful sport hunting In Jasper, Orange, Newton, Sabine and Shelby counties If he has purchased a valid license by the state of his residence and that his state grants a similar, reciprocal hunting privilege to residents of the State of Texas.

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Hon. Jack Hightower, page 2 (M-73)

“Sec. 3. Aresident of Louisiana may engage in lawful sport fishing in any of the waters forming aboundary by the Sabine River and the Sabine Lake between his state and this state without aTexas license if he has a valid license issued by the state of his residence and that his state grants a similar, reciprocal fishing privilege to residents of the State of Texas.

‘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 susp$nded, and this Rule is hereby suspended. Wehave madeathorough search of the case lawwhich might have tested the constitutionality of a state statute that granted reciprocal privileges to residents residing outside their respective states and have been unable to find any cases which touch upon this question.

In passing upon the constitutionality of Article,934b-1 of Vernon’s Penal Code, the court in Dodgen v. Depuglio, 146Tex. 533, 209 S.W. 588 (1948) stated on page 591:

“It will be observed that the statute sought to be nullified is a conservation statute and that it prescribes a fee for both non-resident fishermen and the use of non-resident commercial fishingboats, as a prerequisite t$ take shrimp to the state. (Emphasis me court.) and further stated as follows:

“Where a state mayvalidly require a license, it maymake such classifications, subclassifications or exemptions as deemed necessary, so long as such classifications are not unreasonable and arbitrary. Hurt v. Cooper, 130Tex. 433, 110 S.W.2d 896; S$;eJvS Woodruff, 134 Fla. 437, 184 So; 81;

. . ., Constitutional Law, B659. A

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Hon. Jack Hightower, Page 3 (M-73)

classification is never unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between classes or subject matters includ,ed as compared to those excluded from its operation, provided the differentiation bears a reasonable relation to the purposes to be accom lished by the act.' State v. Mason, 98Utah,501, 78 Pi2d 920, 923, 117 A.L.RI 330; Hurt v/Cooper, supra; Hurt v. Cooper, Tex.Civ.App., 113 S.W.2d 929. Themere fact that discrimination is made does not necessarily vitiate the classification, and unless there Is no substantial basis for the discrimination, there is no warrant for judicial interference. Hurt v, Cooper, Tex.Sup., supra; Hurt v. Cooper, Tex.Civ.App., supra; 16 C.J.S., Constitutional Law, B 529. All that Is required is that the enactment shall be applicable to all persons alike under the same circumstances. Beacon Lumber Co, v. Brown, Tex.Com.App., 14 S.W.2d 1022; Waid v. City of Fort Worth, Tex.Civ.App.; 258 S.W. 1114, writ of error refused, 'One whoassails the classification * * *must carry the burden of showing that It does not rest upon any reasonable basis, but Is essentially arbitrary.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 79, 31 S.ct. 337, 340, 55 L.Ed. 369, Ann. Cas. 1912C, 160. Depuglio, in attacking the constitutionality of the statute in question, has not shown that the classification involved is unreasonable or arbitrary." It thus appears from areading of the above case that the state has aright to pass laws requiring a license and it maymake such classifications, subclassifications or exemptions as long as they are not unreasonable and arbitrary, and that such statutes are not unconstitutional unless they are unreasonable or arbitrary. Therefore H.B. No. 741, of the 60th Legislature, with amendments thereto, is constitutional.

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### Hon.JackHightower,Page4 (M-73)



### SUMMARY H.B.No.741, 

### ofthe60th 

### Legislature, withamendmentsthereto,Isconstitutional.

.Prepared

byJohnH.Banks AssistantAttorneyGeneral APPROVED: OPINIONCOMMITTEE HawthornePhillips,Chairman W.V.Geppert,Co-Chairman AlanMinter WadeAnderson ScottGarrison JohnReeves STAFFLEGALASSISTANT A.J.Carubbl,Jr.

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