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                 THEZAYTBRNEYGENERAL
                           OFTEXAS
                          Aun~m.   Tmxae    78711


                             October 13, 1977




     Honorable H. L. Edwards               Opinion No. H- 1071
     County Attorney
     County of Franklin                    Re: Whether there is a con-
     Mt. Vernon, Texas                     flict between regulations of
                                           the Franklin County Water
                                           District and the Parks and
     Dear Mr. Edwards:                     Wildlife Code.

          You have requested our opinion as to whether there is a con-
     flict between certain regulations of the Franklin County Water
     District and the Parks and Wildlife Code.

           Section 31.070 of the Parks and Wildlife Code provides:

               A motorboat operating on the water of
               this state must have an exhaust water
               manifold or a factory-type muffler in-
               stalled on the engine.

     Section 31.092(c) permits the governing body    of   a political sub-
     division to

                make rules and regulations relating to
                the operation and equipment of boats
                which it deems necessary for the public
                safety. The rules and regulations shall
                be consistent with the provisions of this
                chapter.

     (Emphasis added). Pursuant to this latterprovision,   the Franklin
     County Water District has promulgated the following regulation:

                It shall be unlawful for any boat operat-
                ing on Lake Cypress Springs to be equipped
                with any above-water exhaust system except
                an outboard motor.

                a.   Exception:  Racing craft engaged in a
                     sanctioned race, sanctioned by the
                     Board of Directors of the Franklin
                     County Water District, shall have a



                               p. 4589
Honorable H. L. Edwards       -    Page   2   (H-1071)




              written permit thereto issued by the
              governing body or its authorized
              agent.

Racing craft are likewise exempted under section 31.072(b) of the
Parks and Wildlife Code. You ask whether the Water District
regulation is sufficiently "consistent with" section 31.070 of
the Code.

     In Attorney General Opinion H-613 (1975), we held that a
city may not impose size and hag limits on fish which differ
from those promulgated by the Parks and Wildlife Commission
pursuant to the Uniform Wildlife Regulatory Act. We based that
decision, however, partly upon the apparent intention of the
Legislature to preempt the field with regard to size and bag
limits. In the present instance, the Legislature has not only
failed to preempt the field, but has specifically authorized
political subdivisions to "make rules and regulations relating
to the operation and equipment of boats," so long as such regu-
lations are consistent with the statute. Parks and Wildlife Code
§ 31.092. As the New Jersey Supreme Court noted in Kennedy v.
City of Newark, 148 A.2d 473 (N.J. 1959):

          Before it can be said that the police power
          delegated to local government must remain
          inert, it must be clear that the Legislature
          intended to occupy the field or declared a
          policy at war with the decision made by
          local government.

148 A.2d at 478.

     It is well established that

          [t]he fact that an ordinance enlarges upon
         the provisions of a statute by requiring
         more than the statute requires creates no
         conflict therewith unless the statute lim-
         its the requirement for all cases to its
         own prescriptions.




Code requires that all'motordoats operating upon the public waters
have one of two types of exhaust system. Under section 31.070, an
outboard, inboard or outboard-inboard motor would be permitted.
The Water District regulation is more restrictive than the state




                            p. 4590
.     .




    Honorable H. L. Edwards             - Page 3   (H-1071)



    law in that it would permit only the kind of above-water exhaust
    system available on an outboard motor.  It is less restrictive
    in that it would not require the presence of a muffler on an
    outboard motor. A boat equipped with an outboard motor which
    has a factory-type muffler installed on the engine would comply
    with both the state law and the water district regulat~ion. We
    therefore do not believe that the regulation imposes any require-
    ment that is not "consistent with" state law.

         A similar situation was considered by the Supreme Court of
    Kansas in Leavenworth Club Owners Ass'n v. Atchison, 492 P.2d 183
    (Kan. 1971). In that case, a statute prohibited a club from
    serving liquor between the hours of 3:00 and 9:00 a.m. on weekdays,
    while a city ordinance proscribed the serving of liquor between
    the hours of 1:30 and 9:00 a.m. Quoting from American Jurisprudence
    2d, the court stated:

              [Wlhere both an ordinance and a statute
              are prohibitory, and the only difference
              between them is that the ordinance goes
              further in its prohibition but not counter
              to the prohibition under the statute, and
              the municipality does not attempt to autho-
              rize by the ordinance what the legislature
              has forbidden or forbid what the legislature
              has expressly licensed, authorized, or re-
              quired, there is nothing contradictory
              between the provisions of the statute and
              the ordinance because of which they cannot
              coexist and be effective. Unless legisla-
              tive provisions are contradictory in the
              sense that they cannot coexist, they are not
              deemed inconsistent because of mere lack of
              uniformity in detail.
                      See also Jones v. City of, Chicago, 108 N.E.2d
    492 P.2d at 186. --
    802, 805 (Ill. App. Ct. 1952). In our opinion, the regulation
    of the Franklin County Water District about which you inquire is
    not inconsistent and does not conflict with section 31.070 of the
    Parks and Wildlife Code. Of course, to the extent that section
    31.070 is more restrictive than the water district regulation, it
    must be deemed to take precedence.
                              SUMMARY

              A regulation of the Franklin County Water
              District which prohibits the equipping of
              any boat operating on Lake Cypress Springs




                                  P. 4591
Honorable H. L. Edwards           - Page 4   (H-1071)



             with any above-water exhaust system except
             an outboard motor is not inconsistent and
             does not conflict with section 31.070 of
             the Parks and Wildlife Code.

                                  *ry   truly yours,




APPROVED:




DAVID   M.   KENDALL, First Assistant




C. ROBERT HEATH, Chairman
Opinion Committee

jst




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