                       EATTOR~EY'GENERAL
                                ‘QDF    TEXAS              ‘.

                               ALUwnN      11. TEXAS
PRICE  DANIEL
ATTORNEYCENERAI.
                                  January       26, 1950


       Honorable A. C. Winborn
       District Attorney                                        ul/&,-xJ7
       Houston, Texas              Opinion No, V-990             *1c/
                                                                   ZLLd,
                                                                      212 (MS0 )
                                   Re:     The status of H-B, 656 and
                                           S.B. 425, Acts Slst Leg., 1949,
                                           relative to contributing to child
                                           delinquency in view of apparent
      Dear   Mr.   Winborn:                iaconeistency  between them.

                  Your request for an opinion relates to the etatus of H.B.
      656 and S.B. 425, Acts 51st Leg., R-S,, 1949,‘Chaptera       500 and 488,
      pages 924 and 910, respectively,     both of which undertook to add to
      and strengthen the law for punishment of those who encourage or
      contribute to child delinquency.     The general purpose of the two
      bills, in so far as they relate. to child delinquency,  is the same. But
      so many details and special provisions      of the two bills are different
      that both bills on the same offense earnrot stand., You ask which, if
      either, of the bills is now effective.

                 H.B, 656, which contained an emergency      clause, was fi-
      nally enacted by the Legislature   on June 21, 1949, It was subsequently
      approved by the Governor    on June 29, 1949, and reads as follows:

                   ‘Section 1. In all cases where any child shall be a
             delinquent, dependent OP neglected child, as defined in
             the Statutes of this State, irrespective,  of whether any
             formal proceedings      have been had to determine the status
             of oneh child, the parent or parents, legal guardian, or any
             person having such custody of such child, or any other
             person or persons who shall by any act encourage, cause
             or contribute to the dependency or delinquency of such
             child, o,k who acts in conjunction with such child in the     I
             acts which cause such child to be dependent or delinquent,
             shall be guilty of a misdemeanor,     and upon conviction
             shall be punished by fine not exceeding Five Hundred Dol-
             lars ($500),    or by imprisonment   in the county jail for not
             more than six (6) months, or by both fine and imprison-
             mentg provided, however, that the court in which the case
             is heard may suspend the sentence for violation of the
             provisions    of this Act, and impose conditions upon the de-
             fendant as to his future conduct, and may make such sus-
             pension dependent upon the fulfillment     by the defendant ,of
                                                                          ,




Hon. A. C. Winborn,     Page 2 (Opinion   V-990)




      such conditions,   and in case of the breach ‘of such con-
      ditions or any part of them, the court may impose sen-
      tence as though there had been no such suspension.           The
      court may also as a condition of such suspension,          re-
      quire a bond in such sum as the court may designate,
      to be approved by the Judge requiring it, to secure the
      performance    by such person of the conditions placed
      by the court on such suspension;     the bond by its terms
      shall be made payable to the County Judge of the county
      in which the prosecution    is pending, and any money re-
      cefv@d from a breach of any of the provisions         of the bond
      shall be paid into the county treasury.      The provisions
      of law regulating forfeiture    of appearance bonds shbll
      govern so far as they are applicable.       Exclusive    juris-
      diction of the offense defined in this Act is hereby ccn-
      ferred on Juvenile Courts, in accordance       with the pro-
      visions of law establishing    such courts.

            ““Sec. 2. By the term ‘delinquency,’    as used in this
      Act, is meant any act which tends to debase or injure
      morals,    health or welfare of a child, drinking oe in-
      toxicating liquor, the use of narcotics,    going into or
      remaining in any bawdy house, assignation       house, dis-
      orderly house or roadhouse,     hotel, public dance hall,
      or other gathering place where prostitutes,      gamblers
      or thieves are permitted to enter and ply their trade,
      going into a place where intoxicating    liquors 0~ narcotics
      are kept, drunk, used, sold or given away, or associating
      with thieves and immoral persons,      or enticing a minor
      to leave borne or to leave the custody of its parents,
      guardians or persons standing in lieu thereof, without
      first receiving the consent of the parent, guardian or
      other person, in addition to all of the other acts which
      any other laws now in effect define to be delinquency or
      which create any child a delinquent,

           “Sec. 3. Nothing contained in this Act shall be con-
      strued to repeal or affect any other Statutes regulating
      the powers and duties of Juvenile Courts; but Srticle    534
      of the Penal Code is expressly  repealed.”

           S.B. 425, which purported to amend Art. 534 of the Penal
Code, was finally enacted by the Legislature   on June 22, 1949, and
was approved by the Governor on June 2 9, 1949. This Act was effective
ninety days after adjournment of the Legislature   or on October 5, 1949.

           It reads   as follows:

           “Section I. That Article 534 of the Penal Code of
      the State of Texas, as amended by Acts 1907, page 209;
Hon. A.   C, Winborn,   Page   3 (Opinion   V-990)




      Acts 1918, 4th Called Session,   page 125; Acts 1929, 41st
      Legislature,  Chapter 103, be and the, same is hereby
      amended so as to hereafter     read as follows:

            ” ‘When any person is an habitual drunkard or an
      addict to cocaine, morphine or other narcotics,         and
      in all cases where a child is caused to become a de-
      linquent child or a dependent and neglected child under
      the age of seventeen years, whether previously          con-
      victed or not, the parent, guardian or person having
      the custody of, or the,,porson responsible       for such child,
      habitual drunkard or narcotic addict, or any person who
      by any act encourages,      causea, acts in conjunctionwith,
      or contributes    to the delinquency,   dependency or the
      neglect of such child, habitual drunkard’or        narcotic ad-
      dict, or who shall in any manner cause, enaourage,. act
      in conjunction with or eontribute to the delinquency,
      dependency or the neglect of any such child under the
      age of seventeen years, or habitual drunkard or nar-
      cotic addict, shall be fined not exceeding Five Hundred
      ($500) Dollars     or be imprisoned    in jail not to exseed
      one year, or both. By the term ‘*delinquency” as used
      herein is also meant any act which tends to debase or
      injure the morals,     health or welfare. of such child,
      habitual drunkard or naraotic addict, and includes
      drinking intoxicating liquor, the use of narcotias,        go-
      ing into or remaining     in any bawdy house, assignation
      house, disorderly     house, or road house, hotel, public
      dance hall where prostitutes,       gamblers   or thieves are
      permitted to enter and ply their trade, going into a
      place where intoxicating      liquors or narcotics    are kept,
      drunk, used or sold, or associating       with thieves and
      immoral parsons,       or oause them to leave home or to
      leave the custody of their parents or guardian or per-
      sons’ standing in lieu thereof without first receiving
      their consent or aga~inst their will, or who by undue in-
      fluence, cause such habitual drunkard or .nascotic ad-
      d ict to unlawfully cohabit with, any person known to them
      to be an habitual drunkard or narcotic addict, and any
      other act which would constitute sucha child a delin-
      quent or cause it to become a delinquent by committing
      such act, The fact that a child has not been declared a
      delinquent child or a neglected or dependent child, as
      defined by the Statutes of this State, shall not, be a de-
      fense under this Act,” n

            It is readily apparent that even though the two acts are in
emateria        ,they are inconsistent  with eaoh other in various pro-
visions,  including those pertaining to jurisdiction,   punishment,  author-
ity to suspend sentence,     and requiring bond. It is also to be observed
Hon. A.      C. Winborn,    Page   4 (Opinion   V-990)




that the Act passed June 22, 1949 (S-B. 425) did not contain a pro-
vision expressly  repealing the Act passed June 21, 1949 (H.B. 656).

            When two acts on the same subject passed at the same
legislative  session are in irreconcilable   conflict, and the first
contains an emergency      clause but the second does not, and both
acts are approved by the Governor on the same day, which act,
if either, is controlling?

           It is stated in 1 Sutherland         Statutory   Construction     (3rd
Ed. 1943) 484, Sec. 2020 that:

                 ““In the absence of an irreconcilable    conflict be-
           tween two acts of the same session,       each will be con-
           strued to operate within the limits of its own terms
           in a manner not to conflict with the other act. w-
           ever. when two acts of the same session cannot be
           harmonized     or reconciled,  that statute which is the
           latest enactment will operate to repeal a prior statute
           of the same session to the extent of any conflict in
           their terms . e D .M (Emphasis      ours)

             The same rule is announced           in 59 Corpus Juris 928.         Statutes,
Sec.   533, wherein it is said that:

                00
                  0 0 I)where two acts relating to the same subject
           matter are passed at the same legislative         session,   there
           is a strong presumption     against implied repeal, and
           they are to be construed together,      if possible,   so as to
           reconcile    them, give effect to each, and thereby avoid
           an implied repeal, rather than to infer that one destroys
           the other; but, if the two are irreconcilable,       the one
           which is the later expression     of the legislative    will or-
           dinarily prevails over, and impliedly repeals,         the other
                  PO
           90e*

                The rule is stated    in 39 Tex. Jur- 147, Statutes,       Sec.   79, as
follo”s:
                P
                  * D * But where two acts passed at the same ses-
           sion cannot be reconciled   by any known rule of con-
           struction, the first in time or position must give way
           to the last, which will stand as the final expression of
           the legislative   wiLw

                The above rules have been followed in this State by both the
Supreme        Court and the Court of Criminal Appeals.

          In Townsend v. Terre&     118 Tex. 463, 16 S.W.2d 1063 (1929),
the Court had before it the question as to which of two acts ppaaed at
.




    Han, A.   C, Winborn,   Page   5 (Opinion   V-990)



    the same session of the Legislature     was controlling. The first act
    was approved March 22, 1927. The second ‘act was approved March
    25, 1927, The two acts were “‘thoroughly inconsistent     and irrecon-
    cilable.‘” In holding that the last act prevailed the court said:

               ““It will be observed that in the amendment approved
         March 25, 1927, there is no express        repeal of the abolish-
         ing Act approved March 22nd. It is well settled that re-
         peals by implication     are not favored and that all acts and
         parts of acts inparimateria        are to be construed as a
         whole and interpreted      in such manner as that all may
         stand where such may reasonably         be done. It is only
         where acts are so inconooiatent       as to be irreconcilable
         that a repeal by implication will be indulged.       If there
         exists such conflict, then there is a presumption        of the
         intention to repeal all laws and parts of laws in conflict
         w$tb the clear intention of the last act. This is neces-
         sarily true where both acts cannot stand as valid enact-
         m ents. I0

               Again in Wright v. Broeter, 145 Tex. 142, 196 S,W.2d 82
    (1946) the Court speaking through the present Chief Justice said:

               ““There is no better statement of the rule of law ap-
          plicable in the construction   of two acts of the same ses-
          sion of the legislature  than that made by Justice Wheeler
          in the early ca@e of Cain v. State, 20 Texas 355,    This
          language is taken from that opinion:

               * ‘* * *The rule is, that in the construction of acts
          of the same session,   the whole must be taken and con-
          strued as one act, and to make a latter provision repeal
          a former,   there must be an express   repeal, or an irre-
          concilable   repugnancy between themi and then the latter
          “ill control. * s *

                Cm‘* * *nothing short of expressions     so plain and
          positive as to force upon the mind an irresiat~ble       con-
          viction, or absolute necessity,    will justify a court in
          presuming,    that it was the intention of ths legislature
          that their acts passed at the same session,       should abro-
          gate and annul one another,     The dacent respect due a
          co-ordinate    department  of the government,     would seem
          to forbid that such a presumption      be indulged by the court.
          As we had oaaasion to say in Neil1 v, Keees, “it would not
          be a reasonable    mode of construing aots of the legislature,
          so to construe them as to maka one act repeal another
          passed at the same session.      It cannot-be suppose that it
          was their intention that acts thus passed should abrogate
          and repeal one another.” 5 Tex, 33,’
Han, A. C. Winborn,         Page   6 (Opinion     V-990)




            “‘That rule has been consistently        followed.    McGrady
      v, Terrell,    98 Texas 427, 84:S.W.       641; Southern Pacific
      Co. v, Sorey, 104 Texas 476, 140 S.W. 334; Garrison
      v. Richards,     107 SW. 861, error dismissed;         39 Texas
      Jur;# Statutes, Se&ion 78, and authorities          cited.   In order
      to uphold both acts the first act may be regarded as an
      exception to the second. Cain v. State, supra.             Under
      the rule requiring that the two acts be construed to-
      gether as one, we are not concerned with the question
      of whether or not any provisions         in one may be found
      to be repugnant to corresponding          provisions    in the other.
      Our concern in this case is limited to a consideration              of
      whether or not there is repugnancy between the particular
      provisions. of the acts with reference         to service of pro-
      cess,    If it should be granted, as contended, that certain
      provisions     of the second act are repugnant to corres-
      ponding provisions      of the first, it would not follow that
      the whole of the first be stricken down, for the second
      act would repeal the first act only to the extent of the
      repugnancy.      Any provisions     in the first act not repug-
      nant to provisions     of the second act would remain as
      valid portions of the two acts considered           as one. As
      stated in Garrison      v. Richards,    supra, “Where two acts
      are passed at the same session of the Legislature              they
      should be construed together as one act, and, if possible,
      so that both may stand. McGrady v. Terrell,              98 Texas
      427, 84 SW. 641; Lewis’ Suth. on Stat. Cons&, Sec. 268.
      But where the two are repugnant and irreconcilable,               the
      one approved last repeals the other -----    to the extent of the
      repugnanc)r.P m

          In Stevens        v. State,   70 Tex.    Grim,   565,   159 SW.   505 (1913)
the Court held that:

           66
                0In the case of Chile6 v. State, 1 Tex. App. 31,
                    0   D


      this court said: ‘The two acts, being passed at the
      same session of theiLegislature,         ought, if possible,
      to be conetrued together,      so that both might stand as
      one embodiment      of the legislative    will.   But it will be
      perceived   that these two acts, though passed at the
      same session,    cannot, by any known rule of conatruc-
      tion, be so reconciled    as that both may stand: and, in
      case there is such repugnance between the two as that
      one must give way, the rule is the last must stand as
      an expression    of the will of the Legislature.’        When the
      Supreme Court had jurisdiction         in criminal matters,      in
      the case of Cain v. State, 20 Tex. 359, Judge Wheeler,
      speaking for the court* said        “The, rule is that, in con-
      struction of acts of the same session,          the whole must
      be taken and construed as one act, and, to make a latter
Hon. A, C. Winborn,    Page   7 (Opinion   V-990)




       p~ovisiow repeal a former,   there must be an exprese
       repeal or an irreconcilable   repugnancy between them,
       and then the Ratter winn eontPol*” --citing 3 Moore, 77;
       SedgwGck 0n Stat. & Con&, Law, 410,‘”

           To the game effect are the holdings in Parehall v. State,
62 Tex, Grimm, 177, 136 S,W, 759 (1911); Robertson v. State, 70 Tex.
C1pim. 307, 159 S.W. 713 (1913); and Ex Parte Nitsche,  170 S,W, 1101
(1914).

            We rmowpass to a conoideaation       of whether the fact that
H.B. 656, because 0% ite emergency        clause, and therbiore effective.
prior to S,B, 425, in any manner changes, or calls for an exception
to the above announced rule of statutory construction.         We think not.
Although we have been unable to find any Texas case where the facts
reflect that this exact point was presented and passed upon, it is
well e:stabRished in other jurisdf..ctfons   that inasmuch as the latest
expressiom of the Pagislative will prevails,      the statute last passed
will prevail over a etaUuhe passed prior to it, irrespective       of wheth-
er the prior statute takes effect before or after the later statute,
People v, Kramea,      328 HU. 512, 160 N,E. 60 (1928); Newbauer v. State,
200 %nad.118, I.61 N,E, 826 (1928): State v. Schaumbueg,      149 La. 470,
89 540~536 (192n)z State v, Mamzurr, 34 NJ&       378, 281 Pac. 454 (1929)i
Winsllow v, FBeiechner, 112 Ore, 23, 228 Pac. 101, 34 A.L.R.        826 (1924)~
Buttorff v. York, 268 Pa, 143, PPOAt& 728 (1920),

           The abow rule warr’stated       and followed   %n Attorney   Gen-
eral’aj Ophbn  No. O-5891, daUmlMay        30, 1944.

              Your atUent%onw%e invited to the bacts in State vs Mar~um,
 oupra, which 5~ our opidann are parallel with those BOW under con- ,.
 sidesration,   Chaptara 107 and 128, Laws (1905) were:botb     enacted by
the same New Mla~xieo Legislative      Assembly   and thereafter   applrowd
by UhhaExaeutive Deparbnent       on Uhe same day. Chapter 107 took a%-
feet !mme?diatePy upon ita approval, whereas Chapter 128 took effect
 sixty days a%ter approvaL    hn holding that the statute which took effect
later clcanatrpdnd, the Cbmt  aaid:

            “When it 68)imnnpoaaaibk mtirely to hammnize       Uwo
      stat&se wh%& aw in pari matada,          UhaUtaking the later
      effect is contnsUim~nng,36 Cye, P15B. The rule applies to
      Uwo hatatutes approvsd,  as wes-4 ti40cs WA the 6)ame dab.
      Harriwgtona v. Hemingtom”e     Eest., 53 Vt, 649; Swift & Co.
      v. Some, 142 Miss, 660, IlO7So, 881; Nayha        v, Bd, of
      E&co,   216 Ky* 766, 288 S.W. 690, Article 1 took effect
      at itm passage?   Lawo 1905, a0 107, 0 7, Article 2 took
      e%%kt 60 dayr aff@r Bte passage.      Laws R905, e. 128, 8
      24, It $&en-m,there%om~    tinat, as regards the matUe% harxe
      hvoIbadB asUfcla! R ham bean repealed,     and the prosecution
      6ains.~
Hon. A. C. Winborn,    Page   8 (Opinion   V-990)




             We also call attention to People v. Illinois Central      Ry.
Co,,   295 111. 408, 129 N.E. 66 (1920) wherein it is said:

              * a 0 The first  amendment mentioned above was
             u

       approved June 21, 1919, and the last-mentioned        amend-
       ment was approved June:30, 1919, and the question to
       be here decided is which one of these two amendments
       controls,    Two acts that are passed at the same session
       of the Legislature     are not to be construed as incons
       s&tent if it is possible to construe them otherwise;
       but, where it is impossible      to give effect to both acts,
       the latest in point of time will prevail.      Huston v. New-
       gass, 228 111. 575, 81 N.E. 1127; People v. Wabash Rail-
       road Co., 276 111. 92, 114 N.E. 552.       See, also, Lambert
       v. Board of Trustees,      151 Ky. 725, 152 S.W. 802, Ann.
       Cas, 1915A, 180, and authorities      cited in note. The
       amendment approved June 21, 1919, was passed as an
       emergency     act, but there was nothing to indicate that
       the other amendment,       approved June 30, was passed as
       an emergency,     but the act approved June 30, being
       passed later than the other, must be held, under the
       authorities just cited, as the two acts are absolutely
       inconsistent   and cannot both be in force, to have been
       intended to repeal the former act and must prevail
       over the amendment approved June 21. . . ,*

            Accordingly,.you   are advised that S.B. 425, Acts 51st Leg.,
R.S, 1949, Ch. 488, p0 910, being the later of the two Acts under con-
sideration,  is controlling  and will prevail over the provisions  of H.B.
656, Acts 51st Leg., R.S. 1949, Ch. 500, po 924.



                               SUMMARY


            H.B. 656 and S.B. 425, Acts 5lst Leg., R.S. 1949,
       Chapters 500 and 488, pp. 924 and 910, dealing with
       the subject of child delinquency, were approved by
       the Governor   on the same day and were effective June
       29, 1949, and October 5, 1949, respectively.   The two
       Acts are in conflict and cannot be harmonized,   and
Hon. A. C. Winborn,     Page   9 (Opinion   V-990)




        since S.B. 425 is the latest expression      of the Legislature
        it will prevail over H,B. 656,

APPROVED:                         Yours     very truly,

  Joe R. Greenhill                 PRICE DANIEL
 F i r s t Assistant              Attorney General

   Price Daniel
 Attorney General
                                  By   &z-Ad         G   Ned&
                                              Charles D, Mathews
                                              Executive Assistant




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