May 12, 1967 

Honorable Jack Hightawer 

Chairman 

Game and 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 we will stats the Bill,as proposed. 

AN ACT 

"A BTLL 

TO BE ENTITLED ,, 

relating to reciprocal hunting and fitihing 

privileges between Texas resldents and 

residents of other States; and declaring 

an emergency. 

"Section 1, The Parks and Wildlife 

Department shall Issue a Texas Hunting and 

Fishing License for the same fee 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. A resident 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. A resident of Louisiana may 

engage in lawful sport fishing in any of 

the waters forming a boundary by the 

Sabine River and the Sabine Lake between 

his state and this state without a Texas 

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. 

We have made a thorough search of the case law which 

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, 146 Tex. 

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 may validly require a 

license, it may make such classifications, 

subclassifications or exemptions as deemed 

necessary, so long as such classifications 

are not unreasonable and arbitrary. Hurt 

v. Cooper, 130 Tex. 433, 110 S.W.2d 896; 

S$;eJvS Woodruff, 134 Fla. 437, 184 So; 81; 

. . ., Constitutional Law, B 659. 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, 9 8 Utah,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. The mere 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 who assails 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 a reading of the above case that 

the state has a right to pass laws requiring a license and it 

may make 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. Jack Hightower, Page 4 (M-73) 

SUMMARY 

H.B. No. 741, of the 60th Legislature, 

with amendments thereto, Is constitutional. 

.Prepared by John H. Banks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

W. V. Geppert, Co-Chairman 

Alan Minter 

Wade Anderson 

Scott Garrison 

John Reeves 

STAFF LEGAL ASSISTANT 

A. J. Carubbl, Jr. 

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