    .-T.
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                             THEATITORNEY                       GENERAL
                                      OFTEXAS




                Honorable  Davis Bailey              Opinion   No. W-182.
                County Attorney
                Panola County                        Re:    Whether, Senate Bill    45, Acts
                Carthage, Texas                             of the ~55th Legislature,.
                                                            Regular Session,    has the ef-
                                                            fect of repealing    Article
                                                            802-d of the Penal-Code      or is
                Dear Mr. Bailey:                            cumulative  0.f it.

                            This will    acknowledge your request           for an opinion
                dated June 15, 1957, wherein you submit for                our consideration
                the following    question:

                             Whether Senate Bill   45, Acts         of the 55th Leg-
                      islature,   Regular Session,    repeals         Article 802-d
                      of the Penal Code or is cumulative             of it?

                            Senate    Bill 45 was enacted by the 55th Legislature,
                Regular   Session,    and was approved by the Governor on May 31,
                1957.
                            Section    1 of   said   bill   reads   as followst

                            ‘IAny male minor who has passed his 14th
                     birthday    but has not reached his 17th birthday,
                     and any female minor who has passed her 14th
                     birthday    but has not reached her 18th birthday,
                     and who drives      or operates      an automobile        or any
                     other motor vehicle        on any public       road or high-
                     way in this’state       or upon any street         or alley
                     within    the limits    of any city,       town or village,
                     or upon any beach as defined           in Chapter 430,
                     Acts of the 51st Legislature,            1949, while, under
                     the influence     of intoxicating        liquor,     or who
                     drives    or operates     an automobile       or any other
                     motor vehicle     in such way as to violate             any traf-
                     fic law of this state,         shall be guilty        of a mis-
                     demeanor and shall be punished by a fine of not
                     more than ‘One Hundred Dollars            ($100.00).        As
                     used in this section,,,the         terk.‘any      traffic     law
                     of this state’      shall   include    the following         stat-
                     tutes,    as heretofore     or hereafter       amended:
                                                                                 .-
                                                                                      . - -.




Honorable    Davis   Bailey,    page    2    (WW-182)



            “Chapter     42, Acts      of   the   41st    Legislature,
      Second Called      Session,      1929;
             “(ihrticle*827a,     Vernon’s        Texas    Penal   Code),
       exceptSection       9a thereof;     -

            “Chapter 421, Acts of the 50th Legislature,
      Regular Session,    1947 (Article    6701d, Vernon’s
      Texas Civil   Statutes);     Chapter 430, Acts of the
      5lst Legisl~ature     Regular Session,    1949, (Arti-
      cl’e 827f, Vernonjs     Texas Penal Code); and Arti-
      cles 795 and 801, ~Texas Tenal Code of 1925,”

           Section  2 provides   that the offending     minor shall
not be committed to jail    indefault    of the payment of the
fine imposed,   but the Court shall have the power to suspend
and take possession    of such minor’s   driver’s   license  and re-
tain the same until the fine is paid.

           Section    3 makes it a misdemeanor for any such minor
to drive or operate     a motor vehicle upon any public road, etc.:
without  a valid   driver’s  license.

           Section   4 provides that the offenses   created   by the
act shall be under the jurisdiction     of the courts   regularly
empowered to try misdemeanors    and not under the jurisdiction
of the juvenile    courts.

              The ca ,tion of Senate Bill          45 recites     that the Bill
repeals    Chapter t:36, Acts of the 52nd Legislature,                Regular
Session,    1951.      The latter      act is codified      as Articl,e   802d of
Vernon’s    “enal Code and deals generally             with the same subject
;is Senate Bill      45.     Section    5 of Senate Bill      45, however,      ex-
pressly    repeals     Cha ter 436, Acts of therm              Legislature,
Regular Session,        19,t:    which is a local       game law relating       to
the hunting of quail in Wood County.                We believe     that the re-
pealing    clause    embodied in Section        5 of Senate Bill        45 is void
and of no force        and e,ffect whatever.        It ~cannot have the effect
of repealing      the local      game law cited for it is a subject             not
germane to the pur.poses of Senate Bill               45 as shown uy its cap-
tion.     A bill    cannot embod,y more than a single            subject.     Tex.
Const .,-Art.     III,    Section     35. We further believe         that the re-
mainder of Senate Bill           45 stands as enacted unaffected            by the
nullity    of Section- 5. This conclusion             is supported      by the rule
that where a statute          embraces two or more subjects,            one ,of
which is properly         expr,essed    in the title,     the act is void onlv
as to so much thereof           as is note so expressed,       if the extran-
eous provisions        relating     to matters not within the title           are
separable     from the others.          39 Tex.Jur.     pages 83-84; Texq-
Honorable   Davis   Bailey,   page 3    (~~-182)


Louisiana Power Co. v. Farmersville,    67 S.W.2d           235 ~(Comm-App.);
young v. Chiltop  41.S.W.2~d 505                             dim.);        &J&,--
eaux v. Roark,:&   S,W. .$68~(Comm,App.                                -   ..,
            The subje&'matter^covered       by the remaining   provi-
sions of Senate Bill     45 are properly    expressed in the caption
and Section   5 is clearly    separable  from said provisions.

            This leads us to the consideration   of the effect   of
Senate Bill   45 upon Chapter 436, Acts of the 52nd Legislature,
Regular Session,    1951 (codified as Article  802d of Vernon's
Penal Code), which reads in part asfollows:

            "Section   1.          minor who has reached his
     or her fourteenth       ;"c
                             (1 th) birthday        but has not
     reached his or her.seventeenth             (17th) birthday
     and .who drives    or operates      an automobile       or any
     other motor vehicle         upon any public      road or high-
     way in this State,        or upon any street        or alley
     within   the limits     of an incorporated        city,    town
     or village,     in a reckless      manner, at an excess-
     ive rate of speed, or while under the influence
     of intoxicating      liquors,     as hereinafter       defined
     in this Act, shall be guilty           of a misdemeanor
     and upon-conviction         shall be' unished by a fine
     of not less than One Dollar          ( ii 1) nor more than
     Fifty   Dollars   ($503.

            IlSec. 2. (a) Any minor who drives       any vehi-
      cle in willful      or wanton disregard    of the rights
      or safety    of others or without     due caution    or
      circumspection,      and at a speed or in a manner so
      as to endanger or be likely       to endanger a person
      or property     shall be guilty   of reckless    driving.

           "(b)     Any minor who operates   a motor vehicle
      at a speed    in excess   of the maximum speed allow-
      able under    existing  law shall be guilty   of speed-
      ing.

             II(c)  Any minor who drives    or operates   an
      automobile    or any other vehicle   while such person
      is intoxicated     or under the influence    of intoxi-
      cating liquors     shall be guilty  of driving    or oper-
      ating a motor vehicle     while under the influence      of
      intoxicating    liquors.

           "Sec. 3. Provided  that for good cause              shown,
      and when it shall appear to the satisfaction              of
Honorable    Davis    Bailey,     page    4     (w-182)

      the court that the ends of justice            and the best
      interest    of the public     as well as the defendant
      will   be subserved     thereby,   the courts of the.
      State    of Texas having original       jurisdiction        of
      such criminal     actions    shall have the power after
      conviction    or plea of guilty      to suspend the im-
      position    of such fine and may place the defend-
      ant on probation      for a period     of ninety     (90)
      days.                                                     r,

           “Any such minor placed                on probation    shall
      be under the supervision  of               such court.”

             Repeals of statutes      are of two kinds,      express    and
implied.     Hence in the absence of an express          declaration,      an
act is not to be regarded       as repealed     unless this has been
done by implication.      The auestion     of.,apeal.     whether exoress
or imolied.     is one of lesislative     intent.     39 Tex.Jur.     pages
             First National   Bank v. Lee County Cotton Oil CQ.,
~%2k        127.
              Although the caption          of Senate Bill      45 declares       that
it is the purpose of said bill              to repeal     Chapter 436, Acts of
the 52nd Legislature,         Regular Session,          1951 (codified     as Arti-
cle 802d,. Vernon’s       Penal Code),        such recitatl.on     cannot consti-
tute an express       repeal     of said Act, for the caption            cannot
declare    substantive      law but merely announces the subject                or
scope of the proposed          legislation.        We do believe,      however,
that since the question           before    us is one of legislative          intent
that the caption       can be looked to in order to ascertain                 such
intent . The foregoing           recitation     in the caption,       together     with
the recitation      in the emergency clause to the effect                 that “the
present    law is inadequate         to assure observance        ol traffic       laws
by minors who are subject             to this    Act” evidences     a clear     legis-
lative   intent    that Senate Bill         45 should repeal Chapter 436,
Acts of the 52nd Legislature,              Regular Session,      1951 (codified
as Article     802d of Vernon’s         Penal Code).       Without detailing
the -points    of conflict,       we further      believe   that the provisions
of Senate Bill      45 are so in conflict           with the provisions         of
Article   802d that the two acts cannot be harmonized,                    and hence
the last expression         of the Legislature          upon the subject,       same
being Senate Bill        45, must prevail.




             Senate Bill        45, Acts of the 55th Legislature,
       Regular Session,         repeals       by implication    Chapter   436,
- --.,




         Honorable      Davis   Bailey,   page   5    (WW-182)



               Acts of the 52nd Legislature,    Regular Session,   195'1
               (same being tiodified as Article   802d of Vernon's
               Penal Code.).


                                                     Yours   very   truly,

                                                     WILL WILSON
                                                     Attorney General        of   Texas




                                                       Leonard Passmore
         LP:pf:wb                                      Assistant

         .&PROVED:



         I-1. Grady    Chandler,    Chairman
         Marietta      McGregor    Payne
         Roger I.      Daily
         Wayland      C. Rivers,    Jr.

         REVIEWEDFOR THE ATTORNEYGENERAL

         BY:     Geo.    P. Blackburn
