       THEATTORNEY                 GENE

                     OF   TEXAS




Mr. Jack Ross, Chairman            Opinion No. C- 13.5
Board of Pardons and Paroles
BOX 2176                           Re: Whether House Bill 395,
Capitol Station                        Acts of the 58th Leglsla-
Austin, Texas                          We, Regular Session,
                                       Tg63, Chapter 327, page
                                       ,857,when In effect, will
                                       govern the age limits set
                                       for parole officers, or
                                       whether the provisions of
                                        Article 781d, Section 28,
                                       Vernon’s Code oS~Crimlna1
                                       Procedure, will apply as,
                                        to age limits of such
Dear Mr. Ross:                         officers.
      Tou have requested an opinion from this office upon
the question of whether:
              8,     Ii.B. 395, when in effect, will
       govern tiie*a;5e
                      limits set for parole officers
       employed by this department,or should this
       Board continue Iitscompliancewith Article 78ld,
       Section 28, C.C.P.”
      Section 28 of Article 781d, Vernon’s Code of Criminal
Procedure,provides in part that:
             II      no person may be employed as a
      parole oh&&r or supervisor,or be responsl-
      ble for the investigations,surveillance,or
      supervielonof persons on parole, unless he
      meets the following qualificationstogether
      with any other qualificationsthat may be
       specified by the Mrector of the Division,
      with the approval of the Board of Pardons
      and Paroles: 26 to 55 years of age, . . .‘I
       (Emphasis added)
       Section 2 of House Bill 395, Acts of the 58th Leglsla-
ture, Regular Session, 1963, Chapter 327, page 857, provides
that:
              “No agency, board, commlsslon,depart-
       ment, or institutionof the governmentof the
                           -573-
Mr. Jack Ross, Chairman,page 2.   (C-115 1


      State of Texas, nor any political subdivision ','
      of the State of Texas, shall establish a maxi-
      mum age under sixty-five (65) years nor a minl-
      mum age over twenty-one (21) years for emplog-
      ment, nor shall any person who is a citizen of
      m    State be denied emnlovmentbv anv such
      agency, board, commlssibn,"departme&"orlnsti-
      tution or any political subdivisionof the State
      of Texas solely because of age; provided, however,
      nothing In this Act shall be construed to prevent
      the impositionof minimum and maximumage restric-
      tions for law enforcementpeace officers or for
      Sire-fighters;provided, further, that the pro-
      visions of this Act shall not apply to instltu-
      tlons of higher education with establishedre-
      tirement programs." (Emphasisadded)
       House Bill 395 makes no reference to Article 781d nor
does House Bill 895 contain any repealing clause within its
provisions.
       For House Bill 395 to act as a repeal of Article 78ld,
there being no express or general clause found In House Bill
395, such a repeal would have to be by implication. 39 Tex.Jur.
137 Statutes, Sec. 73. In addition It is stated in 39 Tex. Jur.
140 Statutes, Sec. 75, that:
              11     the repeal of statutes by implication
       Is never’&v&ed or presumed. The two acts will
       persist unless the conflictingprovisions are so
       antagonisticand repugnant that both cannot stand.
       Where there Is no express repeal, the presumption
       Is that in enacting a new law the Legislature ln-
       tended the old statute to remain In operation.
             "Accordingly,a repeal by implicationwill be
      adjudged only when such result is inevitableor was
      plainly Intended by the Legislature. IS by any
      reasonable constructiontwo acts or statutorypro-
      visions can be reconciled and so construed that
      both may stand, one will not be held to repeal the
      other. Especially where the older law ls.partlcu-
      lar and Is expressed in negative terms, and the
      later statute is general, a constructionwill be
      sought which harmonizes them and leaves both in
      concurrent operation. . . ."
       In view of the foregoing.ltis to'be noted that House
Bill 395 merely provides that no agency board, commission,d,e-
partment, or Institutionof the govern&t of the State of Texas

                          -574-
Mr. Jack Ross, Chairman, page 3,.    (c- 115   1


shall establish a maximum age under sixty-five (65) nor a minimum
age over twenty-one (21) for employment. However, the age re-
strictions placed upon parole officers employed by the Board of
Pardons and Paroles, as set forth in Article 78ld, is a restric-
tion placed by the Legislature of the State-of Texas rather than
by an agency, board, commission,department,or Institutionof
the government of the State of Texas.
       Consequently,we are of the opinion that the provisions
of House Bill 395 do not act as a repeal of Section 28 of
Article 78ld, Code of Criminal Procedure enacted by the Legls-
lature whereby the Legislature set certain age restrictions
as to these employees.
                           SUMMARY
              The provisions of House Bill 895, Acts of the
       58th Legislature, 1968, Chapter 827, page 857, do
       not act as a repeal of Article 781d, Section 28,
       Vernon's Code of Criminal Procedure, and therefore
       the provisions of Section 28 of Article 781d, rather
       than the provisions of House Bill 895, control as to
       the age restrictionplaced upon the employment of
       parole officers by the Hoard of Pardons and Paroles.

                                     Yours very truly,
                                     WAGGONER CARR
                                     Attorney General




PB:wb:zt
                                     42  Assistant
APPROVED:
OPINION COMMITTRH
W. V. Geppert, Chairman
C. L. Snow, Jr.
Scott Garrison
Paul Phy
Bill Allen
REXCNWDFORlHRATTORNRYGHNRRAL
BY: Stanton Stone


                            -575-
