                                  AuwrIN     11, TEXAS',     _~
.JOBN xmciwEIHEPPERO             ..,
   AI1OPIIECI
            naFxaar,.
                                           August    23,   1955


       Honorabie   Weldon Hart                        ,Opinion    No, S-169
       Chairman and Executive  Director
       Te.xav Employment Commission                   Re: Constructlon  of
       Austin,   Texas                                    Senate Bills  44 and
                                                          286, 54th Legislature,
                                                          amending Unemployment
       Dear Mr. ‘Hart:           ”                        Compensation .Act 0
                    You have requested   ad,vice as’to ~the effect     of
       the Legislature’s     having passed both Senate Bill No. 44
       and Senate Bill No. 286 at Its last        session.    Each of
       these bills’pur&rts       to amend Subsection’(d)     of Section   5
       of the Texas Unemployment Compensation         Act, as amended
       (Ch. 482, Gen: and Spec. Laws of Texas,          44th Leg.   3rd
       Called Session,     1936, as amended),,but     S.B. No. 286 pur-
       ports  to amend other sections     of that Act as well.
                  Senate, Bil; No. 44 ~88 finally   passed on May 31,
       1955, and S.B. No. 286 was finally    passed on June 7, 1955.
       The Governor approved S.B~. No. 44’on June 22, 1955, and
       then approved   S.B. No. 286 on June 24, 1955.
                   An examination        of the language ,of the two bills
      discloses    irreconcilable        conflict,        insofar     as the amend-
      ment of Subsection          d
                                 ( 1; of  Section       5   IS   concerned.    Senate
      Bill No. 286 makes Ifallure,           or refusal          to croav a picket
      line or refusal       for any reason during the continuance                  of
      such labor dispute         to accept     and perform his available
      and customary      work” a disqualifying              circumstance    ; whereas,
      S.B. Noi 44 contains          no such language.             Senate Bill No,
      286 contains      no provision      ~deallng with burden of proof;
      whe~reav S.B. No. 44 does contain               such a provision.         In
      addition,    there are many~other            differences        in the amenda-
      tory language      of the two .bllls.
                    These facts’,   standing     alone,  would be sufficient
       to require    that we’ adv$ve youa that~ the terms of S.B. No.
       286 ss t.hey amend Subsection         ,(d) af Section   5 of the Act,
       are controlling,   and, wil-I “prevail.. over, the ‘provisions     of
       S.B. ,No. 44,, vSnce the rule is that :~ ‘,
                     “Where two acts passed a,t the same ‘sesvlon
             of the Legislature’     cannot be reconciled     by any
             known rule, of construction,     the first    in time or
             position    must give way to the last,      and the latter
             act will stand as the final      expression     of the
             legislative    will .‘I
Honorable     Weldon Hart,       page   2    (S-169)


           The authorities   in sunnbrt  of this rule are
discussed   in our Opinion No. V-930, January    26, 1950,
which was affirmed    by Ex parte De Jesus de La 0 154
Tex. Grim. 326, 227 S.W. 2d 212 (1950) from whihh the
above quotation   wav taken.
           Senate Bill No. 286 contains           an express   repeal
provision  which constitutes      a clear    statement    of the pur-
poae of the Legislature      to repeal    all acts and parts        of
acts in conflict    with its terms.       39 Tex.Jur.     131.    Such
wav not the case before      the court In Ex Darte De Jesus
de La 0, vupra,     There the later      of the two acts contained
no express  repeal   clause    but the court held that there ,wav
an implied  repeal.     The instant    facts    are therefore     strong-
er than the facts which were before          the cou$t in the cited
cave.
              In,connectlon     with your inquiry     about provisions
in S.B. No. 44 relating         to burden of proof which are not
contained     In later     S.B. No. 286, it, is to be noted t,hat
the court in the cave cited had before            it just vuch a
situation.       The earlier    act contained   provisions   foi? suv-
pension    of sentence      and for bond and forfeiture     of bond;
whereas    the later     act did not,    The court held:
              “The two acts are In irtieconcilable         con-
       flict,   and tkterefore    the latter    act,  . , ,
       being the latest      exgrevslon    of the legislature,
       will prevail.     . . .      227 S,,W. 2d 213.
                Regardless      of whether       there IV actually         an
irreconcilable         conflict     between paragraph           (3) in S.B.
No. 44 and the express             provisions       of S.B. No. 286, it
is our opinion         that the answer Co your inquiry                revpect-
ing thlv paragraph           would be the same.           The ultimate
factor      in determining       whether     a later     amendatory       act
repeal8       a former one Is whether            the Legislature        intended
the later       act to be a substitute             for all previous        amend-
mentv to the portion            of the vtatute        under consideration.
Where two amendatory            acts pavved at the vame vevvion
change different          parts    of the section        being amended,
and each had as its purpose a change in that portion
only,      the court8 have allowed            the intermediate        change
to stand even though it was not Included                      in the later
amendment* ,Peoule v. Lloyd, 304 111. 23, 136 N.E. 505,
                 ; Gerdts v, Getidtv,         196 Minn. 599, 265 N.W.
g        ;gg     ; State v. Hindson,          40 Mont. 353, 1.06 Pac.
       i       i . However, where the history                and clrcuinstances
of enactment        ihow that the Legislature              intended     by a later
act to revise         the subject      matter      of a farmer one and to
        *   ,-
    .



Honorable        WeIdon Hart,     page 3   (s-169)


make it replace        all prior   enactment6     on the subject,        the
subsequent     statute     will repeal   a prior    one though not
repugnapt;‘: 10: all Its ~provlslona.          ee ca8e8 alted         In
34 Texas Digest,        Statutes,   Seq. 161 s I).     While ~the pre-
sumption    against      Implied repeal    le stronger    where two,
Independent      acts are passed at the came seaalon,             this
preaumptlon      must give way to the demonstrated           leglsla-
tlve intent      to make the later      enactment    embrace the full
subject    matter     to which it relates.
               The amendments to Subeectlon              (d) .ln both these
bills   relate     to the came purpose         and eubjeat~matter.
The hlstor        of the bills      in the Legislature          ahows that
S.B. No.~ 25 6 was enacted         wlth~.full      consciousness      of the
ohanges embraced in S.B. No. 44.                 In ,the course of enact-
ment S.B, No. 286 wee changed 80, 8~8 to adopt,                    in identical
language,      many of the ahanges which S.B. No, 44 made in
the existing       law.     One of the House amendments to S-B.
No. 286, in which the Senate refused                   to concur,    was a
provision      that S.B. No, 286 should not be construed                  as
having the effect         of repealing,       altering,      modifying    or
making any change in the provlelons                  of S.B. No. 44.
See Dally House Journal,,54th             Leg,, p. 3276.          Many other
circumstances’show          that the conference          report    on S.5. No.
286, which was prepargd           and adopted,after          adoption    of
the conference        report    on S.B. No. 44, was Intended             as
the final,       complete    expreealon     of 811 the changes which
were to be embraced in Subsection                 (d),
                 You ere     therefore  advlaed   that the terma of
S.B.    No.      286 muat    stand ae the final    expression  of the
legli%lat :lv@ will         and that the terms    of 8.8. No. 44 must
giie way.


               There being lrmconcllable      conflict                between
        the terms of S.B. No. 44 and S.B. No.                     286,   54th
        Leglelabure,    amending Subsection    (d),               Section      5
        of the, Texaa Unemployment Compensation                    Act, S.B.
        NO. 286, the latest     exDreaalon   of the               Legislature,
        will prevail    over S.B.-No.    44,

APPROVED:                               Yours   very     truly,
L. P. Loller
Taxation  Dlvlalan
Mary K. Wall
Reviewer
                                             Asalatant
Honorable   Weldon Hart,   page   4   (S-169)



J. A. Amls,   Jr.
Reviewer
WI11 D. Davis
Special Reviewer
Davis Grant
Special Reviewer
Robert S. Trottl
First  Assistant
John Ben Shepperd
Attorney General

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