         L             OF       EXAS




Honorable Crawford C. Martin
Secretary of State
Austin 11, Texas
                                 Opinion No. C-94
                                 Re:    Date on which election
                                        on proposed Constltutlon-
                                        al Amendment contained in
                                        Senate Joint Resolution
Dear Mr. Martin:                        No. 26 is to be held.

      Your request   for    an opinion reads as follows:
           "The opinion of your office is re-
      quested'concernlng the proper construc-
      tion of Senate Joint Resolution No. 26,
      Acts of the 58th Legislature, and the
      duties of the Secretary of State there-
      under. S.J.R. No. 26 passed the Senate
      on April 23, 1963 and passed the House
      on May 23, 1963 with an amendment. Cm
      May 23, 1963, the Senate concurred in the
      amendment. S.J.R. No. 26 was filed In
      the office of the Secretary of State on
      May 30, 1963, without the signature of
      Governor Connally.
           "There Is a conflict between Section
      2 and Section 3 of S.J.R. No. 26 with
      respect to the date upon which the pro-
      posed Constitutional Amendment is to be
      submitted to a vote. Section  2 states In
      part: 'The foregoing Constitutional Amend-
      ment shall be submitted to a vote of the
      qualified electors of this state at the
      General Election in November, 1964.1 Set -
      tlon 3 states as follows: 'The Governor
      shall issue the necessary proclamation for
      said election to be held on the first Satur-
      day after the first Monday In the month of
      November, 1963, and have notice of said pro-
      posed amendment and of said election publlsh-
      ed as required by the Constitution of Texas
                                -464-
Hon. Crawford C. Martin, page 2 (c-94)

                                                       1
          and laws of this state.' The language,
          'to be held on the first Saturday after
          the first Monday in the month of November,
          1963, ' was added by the House by floor
          amendment. Prior to its amendment, Sec-
          tion 3 made no mention of the date on which
          the election was to be held.
               "Inview of the foregoing, we respect-
          fully request your ruling as to the effect
          of the conflict of dates for voting and
          which, If either, of the dates shall pre-
          vail."
       We agree with you that Section 2 and Section 3 of
Senate Joint Resolution No. 26 of the 58th Legislature,
Regular Session, are In irreconcilable conflict, since
Section 2 provides that the election on the proposed Con-
stitutional Amendment contained therein shall be at the
General Election in November, 1964, while Section 3 re-
quires said election to be held on the first Saturday
after the first Monday in the month of November, 1963.
                                                   -    (Em-
phasis ours).
       When two acts of the same session of the same Legls-
lature cannot be harmonized or reconciled, that statute which
Is the latest enactment will operate to repeal the prior stat-
ute of the same session to the extent of any conflict In their
terms. Ex parte de Jesus de la 0, 227 S.W.2d 212 (Tex.Crim.
1950).

        As between conflicting provisions of the same enact-
ment of the Legislature, the prevailing line of authority
as announced by a majority of the courts passing on the ques-
tlon Is that the latest in point of order of arrangement pre-
vails. Stevens v. State, 159 S.W. 505 (Tex.Crim. 1913);
Parshall v. St t    138 S.W. 759 (Tex.Crlm. 1911); Attorney
General's OpinFo% o-6621 (1945), O-6379 (1945) and O-5329
(1943).

        It is our opinion that the answer to your question is
governed by the authorities cited in Attorney General's
Opinion o-6621, supra, and we therefore quote the following
from this opinion:
               "The conclusion thus reached requires
          an answer to the question: As between con-
          flicting provisions of the same enactment
          of the Legislature, which should prevail?

                              -465-
Hon. Crawford C. Martin; page 3-,(C-,94)         ". '.I'


            "Although the rule has been tirltlclz-
      ed as 'purely arbitrary' (Smith v. Board
      of Trustees of Barnes City, ,198 Cal. 301,
      245 P. 173), in accordance with the prln-
      ciple that the last expression of the Legia-
      latlve will is the law, in case of conflict-
      ing provision'sin the same statute, the pre-
      vailing line of authority as announced by the
      majority of courts passing upon the question
      in this country seems  overwhelming that the
      last in point of time or'order of arrangement
      prevails. ;59 C.J. 999, g 596; ,Great Northern
                        155 F. 945 84,~ C ,A 93
      :&i~;dv208U%~452         28 S'Ct 3i3' 52 L'Ed.
      567; US. v. Jaakson,'l43 F: 763, 7; C.C.6.
      41, reversing C.C. Ex parte JaCkson~,140 F.
      266; U.S. V. Updike, 25 F.2d 746, affirmed
               32 F.28 1 certiorari granted
      fckkk281    U.S. 469, ,50 S.Ct. 367, 74'L%
      984; Inre Richards, C.C.A., 96 F. 935; Rey-
      nolds v. 'U.S.,95 Ct.Cl. 160.
            "For cases to the same effect, from elght-
       een states of the union see C.J. 999, g 596,
       note 58.
           "Texas has clearly followed this rule of
      necessary construction In the case of Parshall
      v. State,'62~Tex.Cr.R. 177, 138 S.W. 767, from
      which we quote the following:
             'I* * + "The different sections or pro-
       visions of the same s~tatuteor Code should be
       so construed as to harmonize and give effect
       to each, but, If there'is an Irreconcilable
       conflict, the later in position prevails."
       Lewis' Suth. on Stat.Const. (2d Ed .)> 8 268,
       p. 514; cltlng'Ex parte Thomas, 133.Ala. 1,.
       21 South. 369; Hand v. Stapleton, 135 Ala. 156,
       33 South. 689; Van Horn v. State, 46 Neb. 62,
       64 N.W. 365; Qnaha Real Est. & T. Co. v. Krag-
       SCOW,  47 Neb,.502, 66 N.W. 658.  And: "If a
       conflict-exists between two statutes or pro-
       vlslons, the earlier in enactment or position
       Is repealed by the later. 'Leges posteriores
       priores contrarias abrogant.' Where there la
       an irreconcilable conflict between different
       sections or parts of the same statute, the


                            ,-'466-
Hon. Crawford C. Martin, page 4 (C-94)


      last words stand, and those which are in
      conflict with them, so far as there la a




                       This rule is applicable where
      no reasonable construction will harmonize the
      part8. It Is presumed that each part of a
      statute is intended to coact with every other
      part; that no part Is intended to antagonize
      the general purpose of the enactment. To as-
      certain the legislative  Intent every part of
      an act, and other acts In pari materia, are
      to be considered. One part of an act may
      restrict another part - an early section a
      later, and vice versa; but if one part is so
      out of line with other parts and the general
      purpose of the act that It can only operate
      by wholly neutralizing some other part, then
      the later provision is supreme, as,express-
      lng the latest will of the lawmaker. . , .”
      (Emphasis ours).
           ‘TO the same effect, see Stevens v. State,
      70 Tex.Cr.R. 565, 159 S.W. 505.
           “This view Is strengthened by our holding
      in Opinion No. O-5329, wherein this department
      was considering conflicting provisions in ap-
      propriations for the Certificate of Title Divi-
      sion from Certificate of fltle fees in the High-
      way Fund. Ch. 400, Acts 43rd Leg., supra, at p.
      946. One proviso limited the appropriation to
      $175,000.00. In a paragraph following the pro-
      viso, expenditure of sufficient certificate of
      title fees to administer the act was authorized.
      The opinion on the question involved is as fol-
      lows:
           “‘Since there is a direct conflict between
      these two provisions, which cannot be resolved
      by the application of any other rule of statu-
      tory construction, we must apply the rule that
      In case of conflict between provisions of the
      same enactment, the provision last in point of
      position in the Act controls, on the theory
      that.it is the latest expression of the legis-
      lative will. Stevens v. State, 159 S.W. 505.

                            -467-
Ron. Crawford C. Martin, page 5 (,C-@)


      Thus the proviso ls~superseded by the
      paragraph succeeding It.
           "'It has been suggested that the con-
      flict is to be resolved by regarding the
      proviso as an appropriation from the Gene-
      ral Fund. To this we cannot agree. It it
      not the province of construction to vary the
      meaning of unambiguous language In order to
      avoid a conflict between portions of the
      law.   This is legislation -- not interpreta-
      tion. I
            "In our Opinion O-6379,   it was held:
           "'In view of the foregoing authorities,
      it will be seen that In case of repugnancy
      between two provisions of the statute, the
      posterior in position should be given effect
      as being the later expression of the legls-
      lature.' Citing 39 Texas Jurisprudence 139
      and Stevens v. State, supra."
       In view of the foregoing, you are therefore advised
that the provisions of Section 3 of Senate Joint Resolution
No. 26 of the 58th Legislature, Regular Session, must con-
trol over the provisions of Section 2, since Section 3 is
the last in point of order of arrangement and, therefore,
the election on the proposed Constitutional Amendment con-
tained In S.J.R. 26 is to be held on the first Saturday after
the first Monday In the month of November, 1963.

                         SUMMARY
            Since Sections 2 and 3 of Senate
            Joint Resolution No. 26 of the
            58th Legislature, Regular Session,
            are In irreconcilable conflict,
            Section 3 must prevail over the pro-
            visions of Section 2, since it Is
            the last In point of order of ar-
            rangement, and the election on the
            proposed Constitutional Amendment
            is to be held on the first Saturday




                            -46a-
Hon. Crawford C. Martin, page 6 (C-94)


            after the first Monday in the
            month of November, 1963.

                          Yours very truly,
                          WAGGONER CARR
                          Attorney General


                                         /Lcco,
                          BY
                               John Reeves
                               Assistant
JR:ms
APPROVED:
OPINION COMMITTEE
W. V Geppert, Chairman
Gordon Appleman
J. Arthur Sandlin
Linward Shivers
Jerry Brock
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




                            -469-
