      TEIEATTORNEY                  GENERAL
                    OFTEXAS




Hon. Travis D. Shelton        Opinion No. S-29
District Attorney
Lubbock, Texas                Re:   Constitutionalityof
                                    Chapter 354, Acts of
                                    the 52~ Legislature,
Dear Sir:                           1951.
          You have requested our opinion as to the con-
stitutionalityof Chapter 354, Acts of the 52nd Legisla-
ture, 1951, being House Bill No. 744, and known as Article
1.436c,Vernon's Penal Code.
            The caption of such Act reads as follows:
           "An Act making it unlawful to steal any
    internal combustionengine, electric motor,
    water well pump or battery used for lrriga-
    tlon  or livestock   watering purposes or any
    accessorial    part of anp such engine, motor,
    pump or battery; making such offense a fel-
    ony or a misdemeanor;prescribingpuM..bent
    therefor; and declaring an emergency.
          There is no further designation in the body of
the Act as felony or misdemeanor.
          Section 35 of Article III of the Constitution
of Texas provides in part as follows:
         "Nb bill . . . shall contain more than
    one subject, which shall be expressed in its
    title. . .'
          In passing on the constltutlonalltgof a simi-
lar caption to Article 1442a, V.P.C., the Court of
Criminal Appeals has held:
          II
           . . . Chapter 15, Acts of First Called
     Session of Thirty-ninthLegislature,contains
     the law, If any there be, making the theft of
     chIckeni a felony. The caption of the Act con-
     tained In said Chapter is as follows:
Hon. Travis D. Shelton, page 2 (S-29)


          "'An Act making it unlawful for the
     fraudulent taking of any chicken or turkey,
     making such offense a felony or a mlsde-
     meanor, prescribingpunishment therefor;
     and declaring an emergency.'
           "It is thus declared that the offense
    which is to be created by, and found in,
    the body of the act, Is 'a felony or a mis-
    demeanor.' Nothing later on or further
    sheds light on the inquiry above raised.
    Manifestly the act denounced cannot be both
    a felony and a misdemeanor. If this be
    true, the caption of the bill in question
    is not In compliancewith the commands of
    Section 35, Art. 3, of our Constitution.
            As said in        one object of Sec-
    ~dn'35, Art. 3, if'o& ConstitutionIs
    to prevent the combinationof incongruous
    enactments in a statute. The attempted
    making of a single act, viz, the taking of
    a ohicken or a turkey, a felony or a mis-
    demeanor, would be the combining of in-
    congruous   enactments. So this title is in
    direct violation of the Constitution."
    Redding v. State, 109 Tex. Crlm. 551, 552,
       $.WZ’d 3b0, 361 (1928).

          The Redding case is controllingand has not
been overruled. Therefore,'itis the opinion of this
office that Chapter 354, Aots of,the 52nd Legislature,
1951, known as Article 1.436~ V.P.C., contains two in-
congruous subjects in contraventionof Section 35 of
Article III of the Constitutionof Texas, and is uncon-
stitutional.

                     SUMMARY
         Chapter 354, Acts of the 52nd Leglsla-
    ture, 19.51,known as Article 14360 V.P.C.,
    contains two incongruoussubjects In contra-
    vention of Section 35 of Article III of the
Hon. Travis D. Shelton, page 3 (S-29)


     Constitutionof Texas,   and is therefore
     unconstitutional.

APPROVED:                        Yours very truly,
Rudy Rice                        JOHN BEN SHEPPERD
State Affairs Dlvlsion           Attorney General
Willis E. Gresham
Reviewer
C. K. Richards
Reviewer
Robert S. Trottl
First Assistant
John Ben Shepperd
Attorney General
JA/rt
