                     THE    ATTORNEY            ESERAL
                               OF  TEXAS


                                 June 3, 1988




        Mr. Charles D. Travis         Opinion No.   JM-914
        Executive Director
        Parks and Wildlife            Re: Conflict between provisions
           Department                 of the Parks and Wildlife Code
        4200 Smith School Road        (RQ-1351)
        Austin, Texas 78744

        Dear Mr. Travis:

             The 69th Legislature enacted Senate Bill No. 464  (Acts
        1985, 69th Legislature,  chapter 267, at 1251), and Senate
        Bill No. 980 (Acts 1985, 69th Legislature, chapter 827, at
        2885), both of which contain amended versions of sections
        47.051 and 47.052 of the Parks and Wildlife Code. YOU ask
P
        whether the two amended versions   are in conflict and, if
        they are, which amended version prevails.      We conclude,
        first, that the amended sections are in irreconcilable
        conflict, but only as to the specific sections set out in
        S.B. 980, and, second, that S.B. 980 controls in the event
        of any such conflict. We first will discuss the provisions
        of S.B. 464; then we will turn to S.B. 980.

             Prior to the 1985 amendments, section 47.051 made vio-
        lation of a certain    list of sections   in chapter   47 a
        misdemeanor, punishable by a fine of not less than $10 nor
        more than $200 and the possible forfeiture for one year of
        any license held under the authority of the listed sections.
        Prior to the 1985 amendments, section 47.052 made violation
        of certain other listed sections a misdemeanor punishable by
        a fine of not less than $100 nor more than $1,000, by
        confinement in jail for not less than one month nor more
        than one year, or by both.

             In 1985 the Parks and Wildlife Department was reviewed
        pursuant to what is now chapter 325 of the Government  Code,
        the so-called "Sunset Law," and, as a consequence, the 69th
    q   Legislature enacted S.B. 464, which sets forth comprehensive
        amendments to the Parks and Wildlife Code. Acts 1985, 69th
        Leg., ch. 267, at 1251 et sea. Article 3 0f.S.B. 464 amends
        chapter 12 of the code by adding subchapter E, which  estab-
        lished a new penalty schedule for Parks and Wildlife    Code



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Mr. Charles D. Travis - Page 2   (JM-914)




violations in lieu of the specific penalties      which   had
formerly been listed throughout the code.

     Article 3 of S.B. 464 amends section 47.051 of the code    1
to provide the following:    "Except as provided by Section
47.052 of this code, a person who violates a provision    of
this chapter commits an offense that is a Class C Parks and
Wildlife Code misdemeanor.q' Acts 1985, 69th Leg., ch. 267,
art. 3, s 33 at 1280. It amends section 47.052 of the code
by adding provisions for penalty enhancement in subsection
Cd):
            (a) A person who fails to comply with or
        who violates a provision of Section 47.003(a)
        or 47.007 of this code commits an offense
        that is a Class B Parks and Wildlife     Code
        misdemeanor.

            (b) The department may seize boats, nets,
        seines, trawls, or other tackle in the pos-
        session of a person violating the sections
        listed in Subsection (a) of this section and
        hold them until after the trial of the'
        person.

           (c) Violatiqns of the above sections may
        also be enjoined by the attorney general by
        suit filed in a district   court in Travis
        County.

            (d) If it is shown at the trial of the
        defendant for a violation of Section   47.008,
        47.016, or 47.038 of this code that he has
        been convicted within   five years before  the
        trial date of a violation of the section   for
        which he is being prosecuted, on conviction
        he shall be punished for a Class B Parks and
        Wildlife Code misdemeanor.

L,   fi 34 at 1281.

     S.B. 464 also enacted section 12.403, which sets forth
the classification of Parks and Wildlife Code offenses   and
provides that Parks and Wildlife Code misdemeanors shall be
in three classes,   according  to the seriousness    of the
                                                                ?




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     I&. Charles D. Travis - Page 3   (JM-914)




     offense.1  Sections 12.404, 12.405 and 12.406 of the code,
     also enacted by S.B. 464, set forth the          punishments
P    appropriate to Class A, Class B, and Class C misdemeanors
     respectively.  Section 12.404 provides  for punishment of a
     "Class A Parks and Wildlife Code misdemeanor":

             An individual adjudged guilty of a Class A
             Parks and Wildlife Code misdemeanor shall be
             punished by:

                (1) a fine of not less than $500 nor     more
             than $2,000:

                (2) confinement in jail for a term not     to
             exceed one year; or

                (3) both such fine and imprisonment.

          Section 12.405 of the code sets forth the punishment of
     a I'Class B Parks and Wildlife Code misdemeanor":

             An individual adjudged guilty of a Class B
             Parks and Wildlife Code misdemeanor shall be
             punished by:

                (1) a fine of not less than $200 nor     more
             than $1,000;

                (2) confinement in jail for a term not .to
             exceed 180 days: or

                (3) both such fine and imprisonment.

          Section 12.406 of the code sets forth the punishment   of
     a I'Class C Parks and Wildlife Code misdemeanor":

             An individual adjudged guilty of a Class C
             Parks and Wildlife Code misdemeanor shall be
             punished by a fine of not less than $25 nor
             more than $200.




P
           1. Section 12.403 also provides that section 12.41.of
     the Penal Code, which classifies   convictions for offenses
     not obtained  from prosecutions  under that code, does not
     apply to offenses under the Parks and.Wildlife Code.
r‘




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Mr.   Charles D. Travis - Page 4    (JM-914)




     S.B. 980, on the other hand, also contains, inter alia,
amended versions of sections 47.051 and 47.052 of the code.
The S.B. 980 version of section 47.051 provides:                       ?

              A person who violates    a provision      of
          Section 47.002, 47.004 through 47.006, 47.009
          through  47.011,   47.013   through   47.015,
          47.017, 47.032 through 47.034, or 47.037,     of
          this code is guilty of a misdemeanor and on
          conviction is punishable by a fine of not
          less than $10 nor more than $200 and is
          subject to the forfeiture, for one year from
          the date of the conviction, of a license held
          under the authority of the listed sections.

Acts 1985, 69th Deg., ch. 827, 3 4 at 2886.

     The S.B. 980 version of subsection         (a)   of     section
47.052 of the code provides:

              (a) A person who fails to comply with or
          who    violates   a  provision   of   Section
          47.003(a), 47.007, or 47.012 of this code  is
          guilty of a misdemeanor and on conviction  is
          punishable by a fine of not less than $100
          nor more than $1,000, by confinement in jail
          for not less than one month nor more than one
          year, or both.

Id., at   2886.

     In other words, S.B. 464 provides     that all offenses
under chapter 47 of the code are punishable     as Parks and
Wildlife Code Class C misdemeanors as set forth in the bill,
except for violations  of sections 47.003(a)   and 47.007 of
the code; violation of those provisions is a Class   B Parks
and Wildlife Code misdemeanor.    In addition, if someone    is
tried under sections 47.008, 47.016, or 47.038     and it is
adduced at trial that that person was convicted within five
years before the trial date of a violation of the section
for which he is then being prosecuted,       punishment   upon
conviction shall be upgraded to the punishment set forth in
the bill for a Class B Parks and Wildlife Code misdemeanor.

     S.B. 980, on the other hand, in effect carves out a set
of exceptions  to the punishments set out in S.B. 464,
providing that violation   of any of a list of specified
sections is a misdemeanor  to be punished by a fine of not
less than $10 nor more    than $200. In addition,     anyone
convicted of violating any of the specified     sections  is               7




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    Mr. Charles D. Travis - Page 5   (JM-914)




    subject to forfeiture, for one year from the date of convic-
    tion, of any license held under the authority      of those
P   sections.  S.B. 980 also provides that violation of any of a
    list of other specified    sections  is a misdemeanor    and
    punishable by a fine of not less than $100 nor more than
    $1,000, by confinement in jail for not less than one month
    nor more than one year, or both.

         It is clear from a reading of both the bills and the
    bills' legislative histories   that the legislature did not
    intend for the sections listed in S.B. 980 to comprise   the
    exclusive list of sections of chapter 47 whose violation
    would subject the offender to punishment.  S.B. 464 contains
    comprehensive *'sunset'*amendments to the code: the bill  is
    entitled:

            An Act relating to the continuation, composi-
            tion, powers, and duties of the Parks and
            Wildlife Department; . . . to the enforcement
            of laws and regulations relating to activi-
            ties permitted by licenses and permits issued
            by the Parks and Wildlife      Department;  to
            state recovery for certain violations of the
            Parks and Wildlife  Code: to authorizing   the
            Parks and Wildlife    Department   to recover
            damages for certain violations of the Water
            Code: providing  penalty   schedules  for the
            Parks and    Wildlife    Code: . . . providing
            enforcement procedures and penalties.

    Acts 1985, 69th Legislature, ch. 267 at 1251. The "Purpose
    of the Bill" set out in the Bill Analysis states that, among
    other purposes, the bill is intended to

            provide the agency with greater authority for
            resource protection  activities,  enforcement
            functions and fees charged for department-
            related activities.  Other changes the bill
            makes will establish  a new penalty  schedule
            for Parks and Wildlife   Code violations  and
            streamline various department activities.

    Bill Analysis for S.B. 464.   The Bill Analysis for Article 3
    simply states:

            Article 111,of this bill amends the Parks and
            Wildlife Code by:

               1) establishing a new penalty schedule for
            Parks and Wildlife Code violations, and




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Mr. Charles D. Travis - Page 6   (JM-914)




           2)  deleting  specific penalties     listed
        throughout  the code     and substituting    a
        reference to a penalty on the newly estab-
        lished penalty schedule.

     S.B. 980, on the other hand, is intended to be of   more
limited scope; the bill is entitled:

        An Act relating to regulation of transporta-
        tion of and commerce in fish and other edible
        marine products and to records of convictions
        and their use; providing penalties. . . .

Acts 1985, 69th Leg., ch. 827 at 2885. The title goes on to
list the specific sections.of the code that the bill amends,
including section 47.051 and subsection     (a) of sez;ec;t
47.052. The Bill Analysis prepared for the original
bill sets forth the purpose of the bill: "To strengthen  the
protections   provided    in   legislation  regulating   the
commercial harvest   of redfish and speckled sea trout by
imposing record-keeping requirements at all points of sale."
The Bill Analysis    prepared  for the House Committee    on
Environmental Affairs   contains a fuller statement  of the
purpose of the bill:

           Senate Bill 980 proposes to establish   the
        requirements by which seafood products may be
        bought and sold. Further,    it provides   the
        Commission with greater authority to regulate
        the importation of red drum and spotted   sea-
        trout for resale. Additionally, it proposes
        to provide   for the monthly    reporting   of
        purchases, or if applicable, no purchases   by
        seafood dealers.

(Bill Analysis on file in Legislative Reference    Library.)
There is nothing in the legislative history of S.B. 980 to
support the contention   that its penalty    provisions  are
intended to supplant the provisions of the more comprehen-
sive S.B. 464; it does nothing more than carve out a set of
exceptions relating  only to the harvesting    and sale of
certain species of fish.

     Statutes that deal with the same general subject matter
are considered as being in sari materia, even though they
contain no reference to one another.  In order to arrive  at
the proper statutory construction, all parts of the acts h
pari materia will be construed together, as though they were
parts of the same      law.   Any conflict between     their
provisions  will be harmonized if possible, and effect will




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Mr. Charles D. Travis~ - Page 7   (JM-914)




be given to all provisions of each act, if they can be made
to stand together.   State v. Dver    200 S.W.Zd 813    (Tex.
1947); pintermann V. McDonald,  lOZ'S.W.Zd 167 (Tex. 1937) ;
       er v. Carlton  296 S.W. 1070  (Tex. 1927); Conlev v.
Dauahters of the keDUbliC   of TexaS,   156 S.W. 197    (Tex.
1913).

     But in an instance in which conflicting statutes     are
enacted by the same session of the legislature, the latest
expression of legislative   intent prevails.    Sx carte de
Jesus de la 0,    227 S.W.Zd 212    (Tex. Crim. App.   1950);
Attorney Generai Opinions MW-139     (1980): H-1115   (1978).
Sutherland  Statutorv  Construction   offers the    following
rules:

           In the absence of an irreconcilable    con-
        flict between two acts of the same session,
        each will be construed to operate within   the
        limits of its own terms in a manner not to
        conflict with the other.. However, when two
        acts of the same session cannot be harmonized
        or reconciled,  that statute which     is the
        latest enactment will operate to repeal a
        prior statute of the same session to the
        extent of any conflict in their terms.

           Because the latest expression     of  the
        legislative will prevails,  the statute last
        passed will prevail   over a statute passed
        prior to it, irrespective of the time of
        taking effect. Where two acts of the same
        session take effect at the same time, the
        latest passed will prevail.

1A Sutherland   Statutorv   Construction     § 23.17   (4th   ed.)
(footnotes omitted).

     In this instance, both bills were enacted during the
69th Legislature,  and both deal with the same subject
matter, namely punishments  assessed for violations of the
code. S.B. 464 first passed the Senate on March 11, 1985.
The House passed the bill with amendments on May 16, 1985.
The Senate concurred in the House amendments on May 21,
1985. S.B. 980 first passed the Senate on April 25, 1985.
The House passed the bill with amendments on April 21, 1985.
The Senate concurred ins the House amendments on May 27,
1985. S.B. 980 was the last enacted statute and, therefore,
represents the most recent expression of legislative  intent
on the subject.   Accordingly, S.B. 980 prevails over S.B.
464 in the event that there are irreconcilable     conflicts




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Mr. Char1es.D.~ Travis - Page 8   (JM-914)




between the two.. The only remaining issue is determining   in
just what instances there is such conflict.

     The punishments   to be assessed upon conviction of a
violation are different under each bill, thereby     rendering
the two bills irreconcilably      in conflict   as to those
specific sections   set out in the later-enacted S.B. 980.
Therefore,  any punishments     assessed  for violation     of
sections 47.002, 47.003(a),   47.004 through 47.006,   47.008,
47.009 through    47.011, 47.012, 47.013 through       47.015,
47.017, 47.032 through 47.034, and 47.037 of the Parks and
Wildlife Code must be assessed       in accordance   with the
provisions of S.B. 980.    Accordingly, the punishment to be
assessed for violation of any of the sections listed above,
except for sections 47.003(a), 47.007, and 47.012, shall be
a fine of not less than $10 nor more than $100; in addition,
anyone so convicted   is subject to the forfeiture, for one
year from the date of the conviction,    of any license held
under the authority of the listed sections.    Punishment   to
be assessed for violation of sections 47.003(a), 47.007, and
47.012 shall be by a fine of not less than $100 nor more
than $1,000, by confinement in jail for a term of not less
than one month nor more than one year, or by both.

     The punishments   to be assessed upon conviction     for
violation of the remaining sections of chapter     47 of the
Parks and Wildlife Code must be assessed in accordance   with
the provisions  of S.B. 464.     Therefore,   punishment  for
violation of any of the remaining sections of chapter      47
shall be a Class C Parks and Wildlife Code misdemeanor   with
punishment to be assessed as a fine of not less than 825 nor
more than $500.    S.B. 980 is silent as to enhancement    of
punishment   for any prior convictions:     accordingly,  any
specific enhancement provisions set forth in S.B. 464 will
control. Therefore, pursuant to S.B. 464, if a person has a
prior conviction within five years of the trial date under
either section 47.008, 47.016, or 47.038 of the code and he
is convicted of an offense under the section under which he
has a prior conviction,     punishment  upon conviction    is
enhanced to the level of a Class B Parks and Wildlife    Code
misdemeanor.




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     Mr. Charles D. Travis - Page 9   (JM-914)




                            SUMMARY
-.             Any punishments assessed for violation    of
            the following    sections of the Parks and
            Wildlife Code must be assessed in accordance
            with the provisions of S.B. 980:       sections
            47.002, 47.003(a),    47.004 through 47.006,
            47.008, 47.009 through 47.011, 47.012, 47.013
            through 47.015,     47.017,   47.032    through
            47.034, and 47.037.    Therefore, the punish-
            ment to be assessed   for violation of any of
            the sections     listed above,     except   for
            sections 47.003(a), 47.007, and 47.012, is a
            fine of not less than $10 nor more than $100;
            additionally, anyone so convicted is subject
            to the forfeiture, for one year from the date
            of the conviction, of any license held under
            the authority     of the    listed    sections.
            Punishment to be assessed for the violation
            of sections 47.003(a),   47.007, or 47.012 of
            the code shall be by a fine of not less than
            $100 nor more than $1,000, by confinement    in
            jail for a term of not less than one month
            nor more than one year, or by both.

                Punishments to be assessed for violation
             of the remaining sections of chapter 47 are
             governed by S.B. 464. Therefore,     violation
             of any such section shall be a Class C Parks
             and Wildlife Code misdemeanor with punishment
             to be assessed as a fine of not less than $25
             nor more than $500. S.B. 980 is silent as to
             enhancement of punishment for any prior con-
             victions; accordingly, any specific enhance-
             ment provisions set forth in S.B. 464 will
             control. Therefore, pursuant to S.B. 464, if
             any person has a prior conviction within five
             years of the trial date under either sections
             47.008, 47.016, or 47.038 of the code and he
             is convicted of an offense under the section
             for which he has a prior conviction,   punish-
             ment upon conviction is enhanced to the level
             of a Class B      Parks and Wildlife      Code
             misdemeanor.




                                       i-/ /h
                                        Very truly yo r ,


                                             A
                                        JIM     MATTOX
                                        Attorney General of Texas


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Mr. Charles D. Travis - Page 10 (JM-914)




MARY KELLER
First Assistant Attorney General

LOU MCCRKARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKIZY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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