Hon. Gibb Gilchrist, Chancellor
Texas Agricultural & Mechanical
      College System
College Station, Texas        Opinion No. V-1369
                              Re:   Effect of new penal
                                    statute0 regulating
                                    wllfullg or negli-
                                    gently setting forest
                                    or brush fires upon
                                    existing penal stat-
                                    utes relating to the
Dear Mr. Gilchrist:                 same subject.
          Your request for an opinion to inform and guide
the State Forester is as follows:
           "Does Article 1318, title 17, chapter 2,
     Penal Code, or Article 1321, title 17, chapter
     2, Penal Code, in any way conflict with Senate
     Bills 178 and 179 enacted by the 52nd Legisla-
     ture?
          Article 1318, Vernon's Penal Code, penalizes the
wllful burning of any building not a house, or any stack
of corn, hay, fodder, grain, or flax, or any pile of boards,
lumber, or wood, or any fence or other Inclosure, the prop-
erty of another. Article 1321, Vernon's Penal Code, penal-
izes the wilful or negligent setting fire to, or burning,
or causing to be burned any woodland or prairie of another.
Prescribed penalties differ under each article. Senate Bill
178, Acts 52nd Deg., R .S. 1951, ch. 466, p. 82, codified as
Article 1.32lb,V.P.C., makes it a penal offense to neglipent-
l.~set fire to or cause to be set on fire any woods, forest,
cut over, bxh,   range, or grassland belonging to another or
set on fire his own and allow such fire to spread to the
property of another, with a penalty prescribed. Senate Bill
179, Acts 52nd Leg., R.S. 1951, ch. 315, p. 537, codified as
Article 1321a, V.P.C., makes it a penal offense to wilfullg
set on fire or cause to be set on fire any woods, forest,
cut over, brush, range, or grassland belonging to another
without the consent of or under the direction of the owner
and prescribes a greater penalty than Senate Bill 178.
Hon. Gibb Gilchrist, page 2 (V-1369)


          A reading of Article  1318 and Senate Bills
178 and 179 shows clearly that the latter enactments
have no effect on Article 1318, Vernon's Penal Code.
They deal with different subjects from those dealt
with in Article 1318.
         As to Article 1321, V.P.C., we do find a
conflict. That Article provides:

            I"Whoever wilfully or negligently
                                     . _ . sets
       fire 50, or ourns, or causes to De ournea,
       any woodland or prairie not his own, shall
       be fined not less than fifty nor more than
       three hundred dollars. This offense is com-
       plete where the offender sets fire to his
       own woodland or prairie and the fire commu-
       nicates to the woodland or prairie of another."
              Senate Bill 179, Acts 52nd Deg., R.S. 1951,
ch.   315,   p. 537, provides:
            "Section 1. It shall be unlawful for
       any person to wilfully set on fire, cause
       to be set on fire, or attempt to set on fire
       any woods, forest, cut over, brush, range,
       or grassland belonging to another, without
       the consent of or under the direction of the
       owner, or by any means calculated to effect
       the object, or attempts to commit any of-
       fense enumerated herein.
           "Sec. 2. Any person who shall violate
      any provisions of this Act shall be deemed
      guilty of a felony, and upon conviction shall
      be fined not less than Three Hundred ($300.00
      Dollars nor more than One Thousand ($l,OOO.OO
      Dollars, or confined in a county jail not less
      than thirty (30) days nor more than six (6)
      months or confined in the State penitentiary
      for not less than one (1) year nor more than
      five (5) years, or by both such fine and im-
      prisonment.
               . 3. 211 laws or parts of laws in
           !!Sec
      conflict with this Act are hereby repealed
      to the extent of such conflict."
Hon. Gibb Gilchrist, page 3 (V-1369)


          Senate Bill 178, Acts 52nd Leg., R.S. 1951, ch.
466, p. 821, provides:
          'ISection1. It shall be unlawful for any
     person to negligently set on fire, or cause to
     be set on fire any woods, forest, cut over,
     brush, range, or grassland belonging to another,
     or to set on fire any woods, forest, cut over,
     brush, range, or grassland belonging to himself
     and allowing such fire to 'spreadto the property
     of another.
          "Sea. 2. Any person who shall violate any
     provislon of this Act shall be guilty of a mis-
     demeanor, and upon conviction shall be fined not
     less than Fifteen ($15.00) Dollars nor more than
     Two Hundred ($200.00) Dollars.
          "Sec. 3. Failure to prevent fire from
     spreading to the property of another shall be
     prima facie evidence of negligence.
          "Sec. 4. All laws or parts of laws in con-
     flict with this Act are hereby repealed to the
     extent of such conflict."
          The Legislature has inaluded In Senate Bills 178
and 179 all the acts which constituted offenses under Arti-
cle 1321. The categories enumerated in Senate Bills 178 and
179 clearly include woodlands and prairies as embraced in
Article 1321. The Legieleture has divided the offenses into
negligent offenses and wilful offenses and has provided dif-
ferent penalties for these two types of offenses, which are
at variance with the penalties prescribed by Article 1321.
          It Is our opinion, therefore, that Article 1321,
Vernon's Penal Code, has been repealed by Senate Bills 178
and 179. A later penal statute repeals by Implication a
prior statute upon the subject when it prescribes a differ-
ent nenaltv, or redefines in a substantial manner the of-
fen& which-the prior statute contem lated. 1 Sutherland,
Statutory Construction ( rd Ed. 1943P 505, Sec. 2031; State
v. Smith, 44 Tex. 44, (1376). S gg v. Smith, 205 S.W. 363
(-iv.      App. 19183 error ief") . Stansbury v. State, 111
S.W.26 717 (Tex. Grim. 1937). kkiermore,     the expressed
purp0se.t.orepeal laws in conflict with the latter Acts
strengthen the implication that Article 1321 is intended to
be repealed.
Hon. Gibb Gilchrist, page 4 (v-1369)


                         SUMMARY

          Article 1321, V.P.C., penalizing the
     burning of woodland or prairie, has been
     superseded and repealed by Article 1321a,
     V.P.C., and Article l32lb, V.P.C. Article
     1318, v.P.c., penalizing the burning of
     certain other types of property remains un-
     affected.
APPROVED:                          Yours very truly,
Ned McDaniel                         PRICE DANIEL
State Affairs Division             Attorney General
Charles D. Mathews                 BY    h&$ik
First Assistant                          Assist   t

VFI/rt




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