Ax-rowsy.Y        CilzYxEcAl.
                                                       November 9, 1967



        Hon. J. R. Singleton                                   Opinion No. M-155
        Executive Director
        Texas Parks and Wildlife                               Re: Whether under Article 978j-1, V.P.C., after
           Department                                              a Commissioners’ Court disapproves a proc-
        John H. Reagan Building                                    lamation for harvest of wildlife resources in
        Austin, Texas                                              a County, and within a short time there-
                                                                   after (few weeks) that Court certifies that
                                                                   there has been a material change in the sur-
                                                                   rounding circumstances, is it mandatory
                                                                    that a second public hearing be held in the
         Dear Mr. Singleton:                                        same County, and related questions.

                                In your request for an opinion from this office you present the following ques-
         tions.

                          “(1) Under Article 978j-1, V.A.P.C., when a Commissioners’ Court dis-
                  approves a proclamation and within a few weeks certifies that there has been a
                  material change in the surrounding circumstances, is it mandatory that a second
                  public hearing be held in the same county?

                          “(2) Could the Commissioner’s Court simply rescind its earlier action
                  and approve the same proposed proclamation without certifying any change in
                  surrounding circumstances and requesting a new hearing to be held?

                          “(3) In the event of disapproval by the Commissioner’s Court in any
                  county, what would be the effective date of operation of the general laws which
                  would again apply?

                          “(4) In the event the Commissioner’s Court in either Kendall or Lam-
                  pasas Counties disapproves a portion of the Commission’s proclamation, may we
                  assume that sections not specifically disapproved are effective or do all rules
                  relating to taking wildlife resources in the county revert to general law?

                           “(5) In those counties which had approved Proclamation A-20 issued in
                   July 1967 and in which no hearings were held subsequent to the amendments
                   made in September 1967, will it be necessary for the Commissioner’s Courts
                   to approve the amended version or will they operate under the original version
                   of the proclamation? No change was made in regulations pertaining to those
                   counties.‘*

                                                               -720-
Hon. I. R. Singleton, page 2 (M-l 55)




                Article 978j-1, Vernon’s Penal Code, (The Uniform Wildlife Regulatory Act) con-
fers on the Parks and Wildlife Commission of Texas the authority, power and duty of protecting
and regulating the harvest of wildlife resources in the various counties designated therein. Acts
60th Leg., R.S., 1967, ch. 730, p. 1959.

                Pertinent portions of this Act read as follows:

                 “Sec. 7. There shall be a public hearing held in the county to be af-
        fected by any proposed rule, regulation or order dealing with hunting or fishing
        as provided for in this Act before such proposed rule, regulation or order is
        adopted by the Commission. Notice of this public hearing must be given in a
        newspaper published in such county at least ten (10) days prior to the date of
        the hearing. If no newspaper is published in the county, notice of such hearing
        must be given in a newspaper published in an adjoining county, which is widely
        circulated in the county in which the proposed rule, regulation or order is to be
        in effect. The hearing may be conducted by a designated employee of the Parks
        and Wildlife Department, or by any member of the Commission, provided it is
        not necessary for the Commission or some member of the Commission to be
        present at the said hearing. (Emphasis added.)

                 “Sec. 8. Orders, proclamations, rules and regulations proposed under the
        provisions of this Act shall be adopted by a quorum of the Commission at any
        regular or special Commission meeting or meetings, the date and time to be
        designated by the Commission and such meeting or meetings for such purpose
        shall only be held in the Commissionls. office in Austin, Texas. For the purpose
        of the provisions of this Act any person interested shall be entitled to be heard
        at such meetings, and to introduce evidence as to imminence of waste or deple-
        tion, as defined in this Act. Two (2) members, or the chairman and one (1)
        member of said Commission shall constitute a quorum. No order, rule or regula-
        tion, genera) or local, shall be adopted at any regular or special meeting of the
        Commission unless a quorum is present.

                 “Sec. 9. Orders, rules and regulations adopted by the Commission shall
         become effective at a time fixed by the Commission but not earlier than fifteen
         (15) days after their adoption, except in the case of emergency as provided in
         this Act, and shall continue in full force and effect until they shall expire by
         their own terms, or are revoked, modified or amended by said Commission.
                 ‘I .

                 “Sec. 13. Special Provisions.

                 “   .
                “b. In Bandera, Coke, Crockett, Edwards, Hays, Kerr, Kimble, Kinney,
         Lampasas, Medina, Menard, Reagan, Real, Schleicher, Sutton, and Val Verde

                                                 -721-
Hon. J. R. Singleton, page 3 (M-l 55)




        Counties, orders, rules and regulations adopted in accordance with Section 8 of
        this Act shall not be effective as provided in Section 9 unless and until they have
        been approved by the Commissioners Court of each of such counties. The Com-
        missioners Court in each county named in this subsection shall approve or dis-
        approve the Commission’s rule, regulation or order or in Lampasas and any
        order or part of order, at its next regular meeting occurring more than five (5)
        days after adoption by the Commission. If approved, the rule, regulation or
        order becomes effective at the time specified in the proclamation by the Com-
        mission. If disapproved, for any of the above named counties, no public hearing
         on a similar proposal for the county may be held for a period of six (6) months
         unless a majority of said Commissioners Court certifies to the Commission that
         there has been some material change in the surrounding circumstances which
         necessitates the holding of a public hearing within the six month period. If the
         Commissioners Court disapproves the rules, regulations, or orders promulgated
         by the Commission, then the taking of the wildlife resources of the county is
         regulated by the General Law until such time as the Commissioners Court ap-
         proves rules, regulations, or orders subsequently promulgated by the Commis-
         sion.” (Emphasis added.)

                Two distinct actions are necessary before a proposed regulation of the Commis-
 sion can become effective under the Act. First, a public hearing must be held in accordance with
 Section 7, and second, the proposal must be adopted by the Commission as set forth in Section
 8.

                 Such regulation will thus become effective as provided in Section 9, except that
 further action is necessary and the same shall not become effective in the counties enumerated
 in Section 13b unless and until approved by the Commissioners’ Court of each of such counties.

                 Article 7 expressly provides that a public hearing shalI be held in the County to
 be affected by any proposed regulation of the Commission. And since Article 13b expressly pro
 vides the manner by which a public hearing may be held during the six (6) month period fol-
 lowing disapproval by a Commissioners’ Court of a county enumerated therein, it is the apparent
 intent of the Legislature that a public hearing be held concerning a proposed regulation before it
 is presented to a Commissioners’ Court each time for approval or disapproval.

                Therefore, in answer to your first question, it is the opinion of this office that
 when a Commissioners’ Court disapproves a proclamation under Section 13b of the Act and
 within a few weeks thereafter certifies there has been a material change in the surrounding cir-
 cumstances which necessitates the holding of a public hearing within the six month period fol-
 lowing such disapproval, a second public hearing concerning such proclamation must be held in
 the same county and adopted by the Commission before submission to the Commissioners’
 Court again for approval or disapproval.

                 Unless vested rights are impaired, a Commissioners’ Court generally has the power

                                                 -722-
Hon. J. R. Simpleton, page 4 (M-155)



to rescind or vacate an order made in its legislative or administrative capacity where the exercise
of such functions is not restricted as to time or manner. IS Tex.Jur.Zd 274, Counties, Sec. 45;
August A. Busch and Company v. Caulfield, 135 S.W~ 244, 246 (Tex.Civ.App. 1911, error ref.).

                 Since Article 13b expressly provides the particular time and meeting at which
such Commissioners’ Courts shall approve or disapprove a proposed proclamation, that is, at its
next regular meeting occurring more than five days after adoption by the Commission, and, if
disapproved, the particular manner by which a public hearing on a similar proposal may be held
within the six (6) month period following such disapproval, it is the opinion of this office that
such restrictions preclude a Commissioners’ Court from rescinding an order disapproving a proc-
clamation and subsequently approving the same at any meeting thereafter, without holding
another public hearing thereon; and we therefore answer your second question in the negative.

                Sections 17 and 18 of the Act read as follows:

                “Sec. 17. This Act shall become effective on the 1st day of September
        1967.

                 “Sec. 18. The Parks and Wildlife Commission may thereafter within a
        reasonable period promulgate its proclamations, rules, regulations and orders
        for the purpose and under the provisions of this Act. Until such rules, regula-
        tions, orders and proclamations of the Parks and WildlifeCommission are a-
        dopted in accordance with the provisions of this Act, all General and Special
        Laws and existing proclamations relating to the taking of any of the wildlife
        resources within this state or county shall remain in full force and effect.
        All game. laws, General and Special, presently in force or enacted during the
        60th Legislature, pertaining to the State of Texas or any county or counties
         therein, shalJ be in full force and effect until the Parks and Wildlife Commit
         sion shall, in accordance with this Act issue a proclamation, role or regulation
         dealing with the subject matter of the county affected by such presently exist-
         ing game law.” (Emphasis added.)

                Section 18 of the Act provides that all General and Special Laws and existing
 proclamations relating to the taking of any of the wildlife resources within this state or county
 shall remain in fuU force and effect until such rules, regulations, orders and proclamations of
 the Commission are adopted in accordance with the provisions of the Act.

                 Therefore, in answer to your third question, in the event of disapproval by the
 Commissioners’ Court as provided in Section 13b, the existing general and special Laws and
 existing proclamations thereunder will remain in fulJ force and effect.

                 By the provisions of Section 13b of the Act, the Commissioners’ Court of Lam-
 pasas County alone may approve or disapprove any order or part of order of the Commission.
 Simrlar authorization is extended to Kendall County by a separate Act, Acts 60th Leg., R.S.,
 1967, ch. 552, p. 1220 (codified under Article 978j, note, V.P.C.) reading as follows:
                                                 -723-
Hon. J. R. Singleton, page 5 (M-l 55)



                  ‘Sec. 9. The Commissioners Court of Kendall County shall approve or
        disapprove the commission’s rule, regulation or order, or any part thereof, at
        its next regular meeting occurring more than five days after said rule, regula-
        tion or order is promulgated. If approved, the rule, regulation or order, or part
        thereof, shall become effective within 15 days, except in state of emergency as
        provided in this Act, in which event it shall become effective upon approval by
        the commissioners court, and shall remain in full force and effect until such
        order, rule or regulation, or part thereof, shall expire by its own terms or is re-
        voked or amended by the commission as provided herein. If disapproved by the
         commissioners court, in whole or in part, no public hearing on a similar pro-
         posal may be held for a period of 6 months unless said commissioners court
         certifies to the commission that there has been some material change in the
         surrounding circumstances which necessitates the holding of a public hearing
         within the 6 months period. Should the commissioners court disapprove an
         order, rule, regulation, or part thereof, then the general or special law govern-
         ing the wildlife resources to be made subject thereto shall remain in full force
         and effect until altered at some later date according to the provisions of this
         Act.”

                 In the designated counties it is the general intent of both Acts that no order, rule
 or regulation of the Commission (or part thereof m the cases of Lampasas and Kendall Counties)
 shall become effective until such time as it may be approved by the respective Commissioners’
 courts.

                 Therefore, in answer to your fourth question, ifs the Commissioners’ Court in
 either Kendall or Lampasas Counties disapproves a portion of the Commission’s proclamation,
 only those parts thereof as may be specifically approved shall become effective. Such subjects
 contained in those parts not specifically approved shall contmue to be governed by the existing
 general and special Laws and existing proclamations thereunder as set forth in our answer to your
 third question.

                 Since Section 7 of the Act requires public hearings before a proclamation can be
 adopted by the Commission, no proclamation could be effectively adopted in the absence of a
 public hearing.

                  Therefore, in answer to your fifth question, in those counties which had approved
 Proclamation No. A-20 regulating Edwards Plateau Hunting, Fishing and Trappmg and in which
 no hearings were subsequently held concerning amendments promulgated after the effective date
 of the Act, the existing general and special Laws and existing proclamations, such as No. A-20,
 remam in fuU force and effect, Before subsequent proclamations or amendments may become ef-
 fective in those counties a hearing must be held before adoption by the Commission and the
 same must be approved by the Commissioners’ Courts in those counties enumerated in Section
  13b of the Act.



                                                  -724.
Hon. 1. R. Singleton, page 6 (M-l SS)



                                        SUMMARY

                (1) When a Commissioners’ Court disapproves a proclamation of the
        Parks and Wildlife Commission under Article 9781-1, 13b, Vernon’s Penal Code,
        and within a few weeks thereafter certrfies there has been a material change in
        the surrounding circumstances which necessitates the holding of a public hear-
        ing within the six (6) month period following disapproval, a second public hear-
        ing must be held in the same county before same can be adopted again by the
        Commission and submitted again to the Commissioners’ Court for approval or
        disapproval.

               (2) A Commissioners’ Court disapproving a proposed proclamation of
        the Parks and Wildlife Commission is not authorized by Article 978j-1, to
        simply rescind its disapproval at a later meeting and enter its order approving
        the same without holding another public hearing thereon.

                (3) In the event a Commissioners’ Court disapproves a proposed proc-
        lamation of the Parks and Wildlife Commission as provided in Article 978j-1,
         13b, Vernon’s Penal Code, the existing general and special Laws and existing
        proclamations thereunder would remain in full force and effect.

                (4) If the Commissioners’ Court in either Kendall County (under Arti-
        cle 9783, as amended) or Lampasas County (under Article 9783-l) disapproves
        a portion of a proposed proclamation of the Parks and Wildlife Commission,
        only those parts thereof that are specifically approved shall become effective,
        and such subjects that are not specifically approved shall continue to be gov-
        erned by the existing general and special Laws and existing proclamations
        thereunder.

                 (5) In those counties which had adopted Proclamation No. A-20 of the
         Parks and Wildlife Department regulating Edwards Plateau Hunting, Fishing
         and Trapping, and in which no public hearings were subsequently held in ac-
         cordance with Section 7 of Article 978j-1, concerning amendments promul-
         gated after the effective date of Article 978j- 1, the existing general and special
         Laws and existing proclamations thereunder, such as No. A-20 remain in fuU
         force and effect.




                                                            y General of Texas

  Prepared by Monroe Clayton
  Assistant Attorney General
                                                  -725.
Hon. J. R. Singleton, page 7 (M-155)



APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Larry Craddock
Ben Harrison
W. 0,. Shultz

STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.




                                       -726-
