                            May 12,     1967



Honorable   Jack Hightawer                     Opinion   No. M- 73
Chairman
Game and Fieh Committee                        Re:   Constitutionality    of H.B.
State Senator                                        No. 741 of the 60th Legis-
Austin,   Texas                                      lature,    with amendment8
                                                     thereto.

Dear Senator   Hightower:

             You regueet  an opinion from this office  aa to the
constitutionality     of H.B. No. 741 of the 60th Legislature,   with
amendments thereto,      FQr clarity we will  stats the Bill,as  proposed.

                               "A BTLL

                         TO BE ENTITLED                   ,,
AN ACT relating   to reciprocal  hunting and fitihing
       privileges   between Texas resldents    and
       residents   of other States;   and declaring
       an emergency.

            "Section    1,  The Parks and Wildlife
       Department shall       Issue a Texas Hunting and
       Fishing     License  for the same fee a8 is
       charged re@ldent@       of Texas if it is shown
       that the nonresident        applicant's       state
       grants a similar,       reciprocal      privilege   to
       residents      of the State of Texas.

            'ISec. 2.  A resident     of Louisiana  may
        engage in lawful     sport hunting In Jasper,
        Orange, Newton, Sabine and Shelby counties
        If he has purchased      a valid license   by the
        state of his residence       and that his state
        grants a similar,     reciprocal   hunting
        privilege   to residents     of the State of
        Texas.
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Hon.   Jack Hightower,     page   2 (M-73)



              “Sec. 3.     A resident   of Louisiana      may
         engage in lawful sport fishing            in any of
         the waters forming a boundary by the
         Sabine River and the Sabine Lake between
         his state and this state without            a Texas
         license    if he has a valid license         issued
         by the state of his residence           and that
         his state grants a similar,          reciprocal
         fishing    privilege    to residents     of the
         State of Texas.

              ‘Sec.   4.    The importance  of this
         legislation       and the crowded condition
         of the calendars        in both houses create
         an emergency and an imperative        public
         necessity     that the Constitutional      Rule
         requiring     bills   to be read on three
         several     days in each house be susp$nded,
         and this Rule is hereby suspended.

           We have made a thorough      search of the case law which
might have tested  the constitutionality       of a state statute  that
granted reciprocal  privileges    to residents    residing outside  their
respective  states and have been unable to find any cases which
touch upon this question.

            In passing upon the constitutionality            of Article,934b-1
of Vernon’s   Penal Code, the court in Dodgen v.            Depuglio,    146 Tex.
533, 209 S.W. 588 (1948) stated    on page 591:

              “It will be observed       that the statute
       sought to be nullified       is a conservation
       statute   and that it prescribes         a fee for
       both non-resident     fishermen      and the use
       of non-resident    commercial      fishingboats,
       as a prerequisite     t$ take shrimp
       to the state.               (Emphasis
       me court.)     and further     stated
       as follows:

              “Where a state may validly       require   a
       license,     it may make such classifications,
       subclassifications      or exemptions     as deemed
       necessary,      so long as such classifications
       are not unreasonable       and arbitrary.      Hurt
       v. Cooper,      130 Tex. 433, 110 S.W.2d 896;
       S$;eJvS     Woodruff,    134 Fla. 437, 184 So; 81;
             . . ., Constitutional      Law, B 659.      A
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Hon. Jack     Hightower,       Page 3 (M-73)



       classification          is never unreasonable            or
       arbitrary        in its inclusion         or exclusion
       features       so long as there is some basis
       for the differentiation               between classes
       or subject        matters      includ,ed as compared
       to those excluded            from its operation,
       provided       the differentiation           bears a
       reasonable        relation      to the purposes        to
       be accom lished          by the act.'        State v.
       Mason, 9 8 Utah,501,            78 Pi2d 920, 923,
       117 A.L.RI 330; Hurt v/Cooper,                   supra;
       Hurt v. Cooper,           Tex.Civ.App.,       113
       S.W.2d 929.          The mere fact that discrimi-
       nation     is made does not necessarily                vitiate
       the classification,             and unless     there Is
       no substantial          basis for the discrimination,
       there is no warrant for judicial                   interfer-
       ence.     Hurt v, Cooper,           Tex.Sup.,      supra;
       Hurt v. Cooper,          Tex.Civ.App.,        supra; 16
       C.J.S.,      Constitutional         Law, B 529.        All
       that Is required           is that the enactment
       shall be applicable             to all persons alike
       under the same circumstances.                  Beacon
       Lumber Co, v. Brown, Tex.Com.App.,                    14
       S.W.2d 1022; Waid v. City of Fort Worth,
       Tex.Civ.App.;         258 S.W. 1114, writ of error
       refused,         'One who assails         the classifica-
       tion * * * must carry the burden of show-
       ing that It does not rest upon any reason-
       able basis,        but Is essentially          arbitrary.'
       Lindsley       v. Natural Carbonic           Gas Co., 220
       U.S. 61, 78, 79, 31 S.ct.               337, 340, 55
       L.Ed. 369, Ann. Cas. 1912C, 160.                    Depuglio,
       in attacking         the constitutionality            of the
       statute      in question,         has not shown that the
       classification          involved      is unreasonable        or
       arbitrary."

            It thus appears from a reading          of the above case that
the state has a right     to pass laws requiring         a license   and it
may make such classifications,        subclassifications        or exemptions
as long as they are not unreasonable           and arbitrary,     and that such
statutes   are not unconstitutional        unless   they are unreasonable      or
arbitrary.    Therefore   H.B. No. 741, of the 60th Legislature,            with
amendments thereto,     is constitutional.



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Hon. Jack Hightower, Page 4 (M-73)


                     SUMMARY
          H.B. No. 741, of the 60th Legislature,
     with amendments thereto, Is constitutional.




.Preparedby John H. Banks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Alan Minter
Wade Anderson
Scott Garrison
John Reeves
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.




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