                   November 20, 1951

Hon. William L. Taylor      Opinion No. V-1352
Prosecuting Attorney
Harrison County             Re:   Conititutlonallty of
Marshall, Texas                   House Bill 584, Acts
                                  52nd Leg., R.S. 1951,
                                  regulating the taking
                                  and kllllng of deer In
                                  Panola, Rusk, Harrison,
                                  Gregg, and Shelby Coun-
Dear Mr. Taylor:                  ties.
          In your recent letter you ask whether House
Bill 584, Acts 52nd Leg., R.S. 1951, ch. 493, p. 1195,
Is constitutional. House Bill 584 reads in part as fol-
lows:
          "Section 1. It shall be~lawful to take
     or kill buck deer with pronged horns In Panola,
     Rusk, Harrison, Gregg and Shelby Counties dur-
     In& the period from November 15th to November
     25th, lncluslve, each year, and each out of
     county hunter shall be allowed to hunt in these
     countles, provtded he has a hunting license and
     a slip from the county clerk of the county in
     which he intends to hunt; this slip to be valid
     for three days per season and not subject to re-
     newal.
          "Sec. 2. It shall be unlawful for any per-
     son to kill or take by any method whatever any
     deer within Panola, Rusk, Harrison, Gregg and
     Shelby Counties at any season or time of the
     year other than as provided In Section 1.
          "Sec. 3.  Any person violating any provi-
     sion of this Act shall be guilty of a mlsdemean-
     or and upon conviction shall be fined not less
     than Twenty-five Dollars ($25) nor more than
     Five Hundred Dollars ($500) or by confinement
     in the county jail for not less than ten (10)
     days nor more than six (6) months or both such
     fine and imprisonment."
Hon. William L. Taylor, page 2   (V-1352)


          Your first reason for questioning the consti-
tutionality of House Bill 584 Is that the Act diacrim-
Inates against out-of-county hunters, limiting them to
three days' hunting during the open season while county
residents are not so limited. You feel the classlfica-
tlon of persons as resident and nonresident of the re-
spective counties is unreasonable in relation to the
spirit and purpose of the regulation and is arbitrary
and unjustly discrlmlnatory. It will also be observed
that the penalty prescribed by Section 3 for violation
of the Act Is more severe than the penalty provided by
the general law, Article 873, V.P.C.
          Section 1 of the Fourteenth Amendment to the
United States Constitution reads:
         "All persons born or naturalized in the
    United States, and subject to the jurlsdlc-
    tlon thereof, are citizens of the United
    States and of the State wherein they reside.
    Ho State shall make or enforce any law which
    shall abridge the privileges or Immunities
    of citizens of the United States; nor shall
    any State deprive any person of life, liberty,
    or property, without due process of law; nor
    deny to any person within Its jurlsdictlo~
    the equal protection of the law&"   (Emphasis
    added.)
          Texas Constitution, Article I, Section 3, reads:
          "All free men, when they form a social
     compact, have equal rights, and no man or
     set of men, is entitled to exclusive aepar-
     ate public emoluments, or privileges, but in
     consideration of public services."
          The regulation of game and wild life by the Leg-
lslature of Texas IS a valid regulation under the police
         the State. However, any such regulation as House
EP5Z     must not discriminate among the citizens of the
State as to their right and privilege to take and enjoy
the game and wild life of the State. This wild life or
game "Is owned by the'state of Texas in trust for all of
the people of the state." Att'y Gen. Op. V-22 (1947).
          It Is our opinion that the dividing of hunters
of deer within a county Into two groups, resident and non-
Tesident, and limiting nonresldent hunters to three days
Hon. wllllam L. Taylor, page 3   (v-1352)



of hunting per open season, while resident hunters may
hunt during the entire period of the open season, is an
arbitrary and unreasonable classification of hunters.
The Act deprives nonresident citizens of the privilege,
right, and pleasure of hunting deer for the entire pe-
riod of the open season as resident hunters may do. It
1s our opinion that this classification and grouping of
Texas citizens is not based upon a substantial dlffer-
ence In relation to the subject of the Act.
          In Harper v. Gal-,     51 so. 226 (Fla. sup.
1910). the petitioner for a writ of habeas COPRUSwas
ci-iar&dwith violation of a game law of Florida requir-
ing nonresidents of Marion County, Florida, to give three
days' notice to the game warden of Marion County of their
IntentIon to hunt La Marion County and to purchase a ll-
tense for the privilege. Residents of Marion County were
not required to give notice or have a license. In dis-
charging the petitioner from custody of the sheriff and
holding the resident - nonresident classification for
hunting in Marion County unconstitutional for violating
the equal protection clause of the United States Consti-
tution, the court said:
          II. . . the classification of persons af-
     fected by the regulation is such that resl-
     dents of the state who do not reside in Marion
     county are dlscrimlnated against In the regu-
     latlon of a subject as to which all the resl-
     dents of the state have some Interest; and the
     dlscritnlnatlonis apparently not founded upon
     any real differences in conditions with refer-
     ence to the subject regulated. Such dlscrim-
     Ination is therefore unjust, and in effect
     denies to the residents of the state who do
     not reside in Marion county, among them being
     the petitioner, the equal protection of the
     laws of the land.
          "The section of the statute for the vlo-
     latlon of whleh the imprlaonment of the peti-
     tioner was adjudged Is therefore Invalid and
     Inoperative as to residents of this state;
     . . .   (51 so. at 230.)

To the same effect is Hill v. State, 53 So. 411 (Miss.
sup. 1910).
Eon. William L. Taylor, page 4   (V-1352)


          16 C.J.S. 1094, Constitutional Law, Sec. 536,
In discussing game statutes similar to House Bill 584
contains the following statement:
          “Such a statute. . . Is a denial of the
     equal protection of the law If It unjustly
     diserlmlnates against any of the people of
     the state, as where It grants to the inhabit-
     ants of the various counties of the state the
     right to take game w&thin their respective
     counties, to the exclusion of, or on more
     favorable terms than, other residents of the
     state; . . .‘I
          You are therefore advised that the provisions
of Rouse Bill 584 requiring nonresident hunters to ac-
quire a slip from the county clerk good for only three
days’ hunting is unconstitutional. Section 3 of the
Act prescribing a penalty different from and more severe
th;hl;at prescribed in Article 873, V.P.C., Is likewise
          I@ Parte Sizemore, 8 S.W.2d 134 (Tex. Grim.
1928); Ex Papte Carson 159 S.W.2d 126 (Tex. Crlm. 1942);
Att’y Gen. op. v-1315 (1951).
          In 9 Tex. Jur. 472, Constitutional Law, Sec.
55, the following rule Is stated:
          “A legislative enactment may be uncon-
     stitutional and therefore invalid as to some
     of its provlslons, and valid as to others.
     Indeed, it is elementary law that a statute
     will always be sustained, as to portions
     which are not unconstitutional, unless the
     unconstitutional portions and the constltu-
     tlonal portions are so intermingled that
     they cannot be severed. The constitutional
     and unconstitutional provisions may even be
     contained in the same section, and yet be
     perfectly distinct and separable, so that
     the first may stand though the last fall.
     The point is, not whether they are contained
     In the same section, for the distribution ln-
     to sections Is purely artificial, but whether
     they are essentially and inseparably connected
     In substance. If the two parts canI_-be possibly
     separated, the court should do SO
     mlt the Invalid part to destroy i&w’
     @iii~a$is added.)
Hon. William L. Taylor, page 5   (V-1352)


          It is our opinion that the unconstitutional
provisions of House Bill 584 can be severed from the
conatitutlonal portion. That which remains Is complete
in itself and capable of being executed in accordance
with the apparent legislative intent to fix an open
season for deer in the counties to which It applies,
Independent of that which is rejected.
          Your third question asks whether this law
applies to out-of-state as well as out-qf-county hunt-
ers. We feel the Act is clear upon this point. The
Act itself makes only one classiflcatlon -- resident
of the county or nonresident. Out-of-state hunters
fall within the category of nonresident hunters. Since
this plovision of House Bill 584 Is unconstitutional,
out-of-state hunters are not specifically affected by
this Act. Their requisites for hunting are determined
by other Acts regulating hunting throughout the State.

                      SUMMARY

          Section 1 of House Bill 584, Acts 52nd
     Leg., R.S. 1951,'ch. 493, p. 1195, providing
     for a ten-day open season for hunting deer
     in Panola, Rusk, Harrison, Oregg,and Shelby
     Counties Is constitutional except for that
     portion of Section 1 which requires out-of-
     county residents to obtain a slip from the
     county clerk in the county in which he hunts
     restricting him to three days' hunting, while
     residents of the respective counties may hunt
     for the ten-day open season.
          Section 3 pi the Act prescribing a pen-
     alty more severe than that flxed by general
     law, Article 873, V.P.C., Is likewise Invalid.
          The wild game of this State is owned by
     the State in tpqst for all of the people of
     the State. Hunting privileges may not be
     arbitrarily granted to one class of Texas
Eon. William L. Taylor, Ipage6    (V-1352)


      citizens and denied to another on the basis
      of county residence.

APPROVED:                        Yours very truly,
Ned McDaniel                       PRICE DANIEL
State Affairs Division           Attorney General
Everett Hutchinson
Executive Assistant
                                 BY
Charles D. Mathews               Milton Richardson
First Assistant                          Assistant

MR: jIllC
