marine life of such waters cannotbe properlyconserved, and that such recreatlomaladvantage6cannotbe properly developedif seines,nets and trawls are permittedto.be used, createan emergencyand an imperativepublicaeceeslty~ that the Constitutional Rule requiringbills be read on ':,, . *
HonorableEdna Cisneros,Page 3. (W-537)
three separatedays be suspended,and the same is hereby suspended,and this Act shall be in fullyforce and effect from and after its passage,and it is so enacted."
The phrase "same offense",cm used In Article61 of the Penal Code, which Article is quoted in full in Question1 above, means an "offenseof like nature". ,Lenorev. -, Tex.Crim.App., I.29S.W. 2d 657 (1939). In Andrewa v: State,.Tex.Crim.App.,228 S.W. 2d 173 (1950), the appellantwa8 chargedh the offenseof sellingbeer on Sunday betweenthe hours of 1 o'clock.A.M., end 1 o'clockP.M. For the pur- pose of enhancementof the punlshm~ntas providedin Art,.61, P. C., it was also chargedthat appellanthad been previouslyconvictedof the offenseof possessionof liquor for the purposeof sale in a dry area. On pages175 and 176, it ~66 stated: "The'offensepresentlycharged,and the offenseof. which appellantIs allegedto have been previouslycon- @ctea.are~~++hviol&+ns.of Art.~667-let seq.,Vern&*s &IL P.'C. .) '"rheoffense~presently chargedagainstappellant1.8a regulatoryme*sure. She held a licenseand, being in a wet area, was permi$tedlegallyto sell beer at her cafe. Sale, however,was restrictedon Sunday,a sale during-the -ms froml.o'clockA.M. to 1 01c&ock.Pd4.beiugmade an o.Cfense .
"The prior offense,on the other hand, is not a re- gulatorymeasure,but is a stat$e prohibit- sale or possessionfor the purposeof sale.ofintoxicating iiquor, ,affedlveonly in such areas as have been declaredto be dry areas as .are6ult of a local optiohelection.
. . .
"We ar6 unwillingto hold that such offensesq& the same, or that they are of like character."
You State that the Defendantwas chargedwith huntinga deer ,Ft night!.Deer of the proper Species and 86x may be hunted during 6666011 with s,valid permit. We hold, therefore,in answerto Questioq1, that Article887,~P.C., prohibitinghuntingat night, is a regulatoryAct, while Article877, P. C., prohibitingthe,huntingof turkey hens, is a prohibitoryAct, and thereforethe two acts are not of like nature, and a convictionunder eitherAct cannotbe used to enhancethe penalty for + violationof the other Act under Article61 of the Penal Code.
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HonorableEdna Cisneros,Page 4. (W-537)
i In Warner v. State,Tex.Crim.App., 42 S.W. 2d 616 (1931),the court said at page 617:' " . . 1 we think it wrong to lay down the rule that offensespossessingonly a single elementof samene68 are thereforethe same or of the same nature; . a . Every rape, equallywith every murder,is based on a necessaryassault. Ihrery bigamy and every swindling proceedson the basic theory of fraud,but it would not do-at all to say that these were thereforethe same offenses,or offensesof the same nature."
The provisionsof Article978j, P. C., prohibitingthe u8e or possessionof nets and seinesin the tidal waters of WlllacyCounty west of Padre Island,is a speciallaw, which can only be violatedIn Willacycounty. The purposeof the Act, a6 statedin Section4 thereof, seemsto be as much for protectingrecreationaladvantageson land do- . nated to an AmericanLegIonPost as it is for protectingmarine life.
Article 877, P. C., is a,Bener*l'lav-designed to conserveend increas;the stock of wild turkeysthroughoutthe entire state,by'