.-T.

. -.



## THEATITORNEY GENERAL OFTEXAS

Honorable Davis Bailey County Attorney Panola County Carthage, Texas

Dear Mr. Bailey: Opinion No. W-182. Re: Whether, Senate Bill 45, Acts of the ~55thLegislature,. Regular Session, has the effect of repealing Article 802-d of the Penal-Code or is cumulative 0.f it. This will acknowledge your request for an opinion dated June 15, 1957, wherein you submit for our consideration the following question:

Whether Senate Bill 45, Acts of the 55th Legislature, Regular Session, repeals Article 802-d of the Penal Code or is cumulative of it? Senate Bill 45was enacted by the 55th Legislature, Regular Session, andwas approved by the Governor on May31, 

### 1957. Section 1of said bill reads as followst

‘IAnymale minor whohas passed his 14th birthday but has not reached his 17th birthday, and any female minor whohas passed her 14th birthday but has not reached her 18th birthday, andwhodrives or operates an automobile or any other motor vehicle on any public road or highway in this’state or upon any street or alley within the limits of any city, town or village, or upon anybeach as defined in Chapter 430, Acts of the 51st Legislature, 

### 1949,while, under the influence of intoxicating liquor, or who drives or operates an automobile or any other motor vehicle in such way as to violate any traffic law of this state, shall be guilty of amisdemeanor and shall be punished by afine of not more than ‘OneHundred Dollars ($100.00). As used in this section,,,the terk.‘any traffic law of this state’ shall include the following stattutes, as heretofore or hereafter amended:.-

. - -.

Honorable Davis Bailey, page 2 (WW-182)

“Chapter 42, Acts of the 41st Legislature, Second Called Session, 

### 1929;

“(ihrticle*827a, Vernon’s Texas Penal Code), exceptSection 9a thereof; -

“Chapter 

### 421,Acts of the 50th Legislature, Regular Session, 1947 (Article 6701d, Vernon’s Texas Civil Statutes); Chapter 

### 430,Acts of the 5lst Legisl~ature Regular Session, 

### 1949,(Articl’e 827f, Vernonjs Texas Penal Code); and Articles 

### 795and

### 801,~TexasTenal Code of 1925,” Section 2 provides that the offending minor shall not be committed to jail indefault of the payment of the fine imposed, but the Court shall have the power to suspend and take possession of such minor’s driver’s license and retain the sameuntil the fine is paid.

Section 

### 3makes it amisdemeanor for any such minor to drive or operate amotor vehicle upon anypublic road, etc.: without avalid driver’s license.

Section 4provides that the offenses created by the act shall be under the jurisdiction of the courts regularly empowered to try misdemeanors andnot under the jurisdiction of the juvenile courts.

The ca ,tion repeals Chapter t: Session, 1951. 

### 36, of Senate Bill 45 recites that the Bill Acts of the 52nd Legislature, Regular The latter act is codified as Articl,e 802d of Vernon’s “enal Code and deals generally with the samesubject ;is Senate Bill 45. pressly repeals Section 5of Senate Bill 45, however, exChater 

### 436,Acts of therm Legislature, t: Regular Session, 19, which is alocal gamelaw relating to the hunting of quail in WoodCounty. Webelieve that the repealing clause embodied in Section 5of Senate Bill 45 is void and of no force and e,ffect whatever. It~cannot have the effect of repealing the local gamelaw cited for it is a subject not germane to the pur.poses of Senate Bill 45 as shown uyits caption. Abill cannot embod,ymore than asingle subject. Tex. Const.,-Art. III, Section 

### 35. Wefurther believe that the remainder of Senate Bill 45 stands as enacted unaffected by the nullity of Section- 

### 5. This conclusion is supported by the rule that where astatute embraces two or more subjects, one ,of which is properly expr,essed in the title, the act is void onlv as to so muchthereof as is noteso expressed, if the extraneous provisions relating to matters not within the title are separable from the others. 

### 39Tex.Jur. pages 

### 83-84;Texq-Honorable Davis Bailey, page 

### 3 (~~-182)

Louisiana Power Co. v. Farmersville, 

### 67S.W.2d 

### 235**~(Comm-App.);** young v. Chiltop 41.S.W.2~d 505 eaux v. Roark,:& S,W. 

### .$68**~(Comm,App.** dim.); &J&,--



### - .., The subje&'matter^covered by the remaining provisions of Senate Bill 45 are properly expressed in the caption andSection 

### 5is clearly separable from said provisions.

This leads us to the consideration of the effect of Senate Bill 

### 45upon Chapter 

### 436,Acts of the 52nd Legislature, Regular Session, 

### 1951(codified as Article 802d of Vernon's Penal Code), which reads in part asfollows:

"Section 1. ;"c minor whohas reached his or her fourteenth (1 th) birthday but has not reached his or her.seventeenth (17th) birthday and.whodrives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town or village, in areckless manner, at an excessive rate of speed, or while under the influence of intoxicating liquors, as hereinafter defined in this Act, shall be guilty of amisdemeanor andupon-conviction shall be' of not less than OneDollar (iiunished by afine 1) nor more than Fifty Dollars ($503. IlSec. 2. (a) Anyminor who drives anyvehicle in willful or wanton disregard of the rights or safety of others or without due caution or circumspection, and at aspeed or in amanner so as to endanger or be likely to endanger aperson or property shall be guilty of reckless driving. "(b) Anyminor who operates amotor vehicle at a speed in excess of the maximumspeed allowable under existing law shall be guilty of speeding. II(c) Anyminor whodrives or operates an automobile or any other vehicle while such person is intoxicated or under the influence of intoxicating liquors shall be guilty of driving or operating amotor vehicle while under the influence of intoxicating liquors. "Sec. 

### 3. Provided that for good cause shown, andwhen it shall appear to the satisfaction ofHonorable Davis Bailey, page 4 

### (w-182)

the court that the ends of justice and the best interest of the public as well as the defendant will be subserved thereby, the courts of the. State of Texas having original jurisdiction of such criminal actions shall have the power after conviction or plea of guilty to suspend the imposition of such fine andmayplace the defendant onprobation for aperiod of ninety (90) days. r,

“Any such minor placed onprobation shall be under the supervision of such court.” implied. Repeals of statutes are of two kinds, express and

Hence in the absence of an express declaration, an act is not to be regarded as repealed unless this has been done by implication. The auestion of.,apeal. whether exoress or imolied. is one of lesislative intent. 

### 39Tex.Jur. pages ~%2k 

### 127.

First National Bank v. Lee County Cotton Oil CQ., Although the caption of Senate Bill 45 declares that it is the purpose of said bill to repeal Chapter 436, Acts of the 52nd Legislature, Regular Session, 1951 (codified as Article 802d,. Vernon’s Penal Code), such recitatl.on cannot constitute an express repeal of said Act, for the caption cannot declare substantive law but merely announces the subject or scope of the proposed legislation. Wedobelieve, however, that since the question before us is one of legislative intent that the caption can be looked to in order to ascertain such intent

. The foregoing recitation in the caption, together with the recitation in the emergency clause to the effect that “the present law is inadequate to assure observance ol traffic laws by minors who are subject to this Act” evidences aclear legislative intent that Senate Bill 45 should repeal Chapter 

### 436, Acts of the 52nd Legislature, Regular Session, 1951 (codified as Article 802d of Vernon’s Penal Code). Without detailing the-points of conflict, wefurther believe that the provisions of Senate Bill 45 are so in conflict with the provisions of Article 802d that the two acts cannot be harmonized, andhence the last expression of the Legislature upon the subject, same being Senate Bill 45, must prevail.

Senate Bill 

### 45,Acts of the 55th Legislature, Regular Session, repeals by implication Chapter 

### 436,- --.,

Honorable Davis Bailey, page 5 (WW-182)

Acts of the 52nd Legislature, Regular Session, 195'1 (same being tiodified as Article 802d of Vernon's Penal Code.).

Yours very truly, WILLWILSON Attorney General of Texas

LP:pf:wb .&PROVED: Leonard Passmore Assistant

I-1.Grady Chandler, Chairman Marietta McGregor Payne Roger I. Daily Wayland C. Rivers, Jr. REVIEWED

FORTHEATTORNEY GENERAL BY: Geo. P. Blackburn