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                 TEEA~ORNEY                    GENERAL

                               0F    TEI~~s




    Honorable G. Curtis Jackson               Opinion No   WW-724
    County Attorney
    Zavala county                             Re:   Constitutionality of H. B.
    Crystal City, Texas                             No. 47, Acts of the 56th
                                                    Leg., Reg. Sess., 1959, and
    Honorable Andrew P. Johnson                     related questions concerning
    County Attorney                                 archery hunting
    Dimmit County
    Carrizo Springs, Texas

    Gentlemen:

              This opinion is issued in response to your request for an opinion
    of this office concerning the constitutionality of H. B. No. 47, Acts
    of 56th Leg., Reg. Sees., 1959, Chap. 189, Page 423, as amended by S. B.   '
    No. 49, Acts of 56th Leg., 2nd Called Session, 1959, Chap. 30, Page 146,
    and the effect on H. B. No. 47, as amended, of H. B. No. 962, Acts of
    56th Leg., Reg. Sess., 1959, Chap. 273, Page 589. H. B. No. 47 and H. B. '
    No. 962 have been published in Part 4 of Vernon's Texas Session Law S-r-
    vice, 1959, and S. B. No. 49 has been published in Part 6.

              The first question of your inquiry reads as follows:

                   "Is H. B. 47, as amended by S. B. 49, unconsti-
              tutional as special group legislation because of the
              provisions of Sec. ZC, there being no severabi-
              lity clause in the Bill?"

              The answer to this question is that Section 2C of H. B. No. 47,
    as amended, is unconstitutional, but, because the section is properly
    severable, despite the absence of a severability clause in the bill, the
    invalidity of Section 2C does not render the remaining provisions of the
    bill unconstitutional.

              S. B. No. 49 only amends H. B. No. 47 to the extent of excluding
    from its operation certain counties, in addition to those excluded by the
    provisions of H. B. No. 47 itself, and, therefore, amendatory S. 8. No. 49
    need not be further considered in answering the questions with which this
    opinion is concerned.

              Section 1 of H. B. No. 47 states in part as follows:

                   "Article 879h-1
                                                                        .     I




Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 2.   (W-724)




               "There shall be an open season, or period of
          time, when it shall be lawful to hunt, take and kill
          solely with bows and arrows, wild buck deer, wild
          bear, wild turkey gobblers and collared peccary or
          javelina in both the North and South Zones, October
          1 to October 31 of each year both days inclusive."

Section 1 further prescribes that no bow hunter may have in his possession
while hunting any crossbow or firearm or use a bow or arrow other than
such as are prescribed and that for certain counties the Game and Fish Com-
mission shall determine the open season for bow hunting.

          Section 2C of H. B. No. 4'7states as follows:

               "Provided, further, that hunting in Jack, Wise
          and Parker Counties shall be done only by residents
          of those counties."

          A declaration of the sovereignty that abides in every state-with
regard to the game within its borders was made by the Legislature of the
State of Texas in Article 871a of the Penal Code, as follows:

               "All wild animals, wild birds, and wild
          fowl within the borders of this State are hereby
          declared to be the property of the people of
          this State."

          Therefore, since the game in the State is the property of the
people of the State as a whole, laws relating to this property, which res-
trict the people in the use and disposal of the game, are constitutionally
valid only if they are reasonable and are not arbitrary and discriminatory.

          Since Section 2C clearly benefits residents of three counties to
the detriment of the other residents of the State, who equally own the
game involved, the limited hunting authorized in Section 2C can be valid~
only if it has a proper basis as an exercise of the police power.

          Consideration of the matter results only in the conclusion that
this authorization would not be a proper exercise of the police power as it
has no reasonable basis in conserving the wildlife resources which belong
to the people. Therefore, Section 2C is unconstitutional and invalid as
violative of the Fourteenth Amendment of the United States Constitution and
Sections 3 and 19 of Article I of the Texas Constitution, which provide
that no person shall be deprived of property without due process of law nor
denied the equal protection of the laws.

          Since Section 2C is unconstitutional and thereby invalid, consi-
deration must be given to the effect of such invalidity on the remainder of
H. B. No. 47. Although H. B. No. 47 contains no severability provision,
Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 3.   (W-724)




 the absence of such a orovision is not in itself controlling in determintng
 the validitv of the~~ I.emainderof the act. See Harris County Water Control
 & Imprcovement Dist.  No. 39 v. Albright, 263 S.W.2d 944,947 (1954); Gil&Y-
        r.
 bloom ‘1  State, 272  S.W.2d 106,110 (Tex. Grim. 1954); Miller v. El Paso
 counts ,146W.2d      1027,1036 (Civ. App. 1940), reversed on other grounds
  j6x.
 1:        370, 150 S.W.2d 1000 (1941); City of Dallas v. Love, 23 S.W.2d 431,
'435 (Civ. App. 1930), affirmed 40 S.W.2d 20 (1931);
 Tex. 515, 242 S.W. 447,454 (1922); Lawson v.
 App. 1920, writ refused); Young v. City of Colorado, 174 S.W.2d 986,997 (Civ.
 App. 1915, writ refused); and San Antonio Independent School District v.
 State ex rel De&man, 173 S.W. 525,529 (Civ. App. 1915, writ refused), in
 each of which cases a provision was attacked as being unconstitutional and
 the court determined that the validity of the remainder of the act wasnot
 affected thereby, despite the absence of any severability provision. ~_

          The Court in the San Antonio School District case presenteda very
 comprehensive discussion concerning the validity of the remainder of an ,act
,containing an unconstitutional provision and on page 529 stated in part as
                                                                      .
 follows:
               ,t. . . where part of a statute is unconstitutional
          and the remainder is constitutional, if the two parts
          can be possibly separated courts should do so, and not
          permit the invalid part to destroy the whole law. If,
          after the elimination of the invalid part of the law,
          there remains an intelligible and valid statute capable
          of being placed in execution and conforming to the general
          purpose and intent of the Legislature, the law will not    '~
          be destroyed, but held to be valid and binding except
          as to the excised part*"

          Examination of H. B. No. 47 by means of this test of its validity
results in the conclusion that the removal of invalid Section 2C leaves a
statute which is (1) intelligible, (2) capable of being placed in execution,
and (3) in conformity to the general purpose and intent of the Legislature.
Therefore, Section 2C, which is unconstitutional and invalid, is severable
from the remaining provisions of H. B. No. 47, which are valid and effective
in view of such severance.

          The general purpose and intent of the Legislature in enacting H. B.
No. 47 was to provide, first, a season when game could be taken solely with
bows and arrows and, second, regulations governing the equipment used in
bow hunting. This intent is obvious from consideration of the provisions of
the act and is emphasized by the statements in Section 3, the emergency
clause, that there is increasing hunting pressure on game, bow hunting al-
lows more hunting in proportion to the game killed, the number of bow hunt-
ers is increasing, and safety laws regulating bow hunting are inadequate.
Honorables G. Curtis Jackson and Andrew P. Johnson, Page   4.   (W-724)



Certainly the provisions of H. B. No. 47 which would remain after Section
2C is invalidated would be in conformity to these purposes for which H. B.
No. 47 was enacted..

          Section 2C was not a part of Ii.B. No. 47 either when the bill
was introduced or when committee amendments were adopted upon the bill being
reported favorably to the full House. The section was added to the bill
just before the bill passed on its second reading, with the bill being
immediately passed on its third (final) reading after an affirmative vote
of 96-to-8 to suspend the rules to permit such passage.

          Since Sectlon 2C is Invalid, the result is to eliminate the spe-
cial privileges for residents of Jack, Wise, and Parker Counties and to
leave the general provisions of the act effective in those counties. To ask,
is this what the Legislature meant to do when it enacted H. B. No. 471, is
to beg the question. The true test is, do the provisions that remain conform
to the general intent of the Legislature in enacting the act? Consideration
of the provisions that remain results in an affirmative answer.

          Section 2C was an effort to superimpose on general provisions
special privileges for a certain class of persons and as such is clearly
distinguishable from the effort to prevent general provisions from applying
to a certain class of persons, such as was involved in Anderson v. Wood, 137
Tex. 201, 152 S.W.2d 1084 (1941). The effort In the Anderson case statute
was to prevent general provisions applying to a particular county, while
in the present situation the effort is to secure the full benefits of the
act (an open season where none has existed and safety regulations for the
protection of bow hunters) plus special privileges for residents of certain
counties. Even if we were faced with an Anderson case type of situation, a
different conclusion from that stated in the Anderson case might be indicat-
ed by Ground Water Conservation Dist. No. 2 va Hawley, 304 S.W. 764 (Civ.
App. 1957, error ref. n.r.e.), a more recent 'case.

         Your question number two reads as follows:

               "Does H. B. 962, ch. 273, being passed at a
          later date than H. B. 47, and becoming effective
          thereafter, with repealing clause, repeal H.B. 47
          so far as Dimmit and Zavala Counties are concerned?"

          With regard to this inquiry, the taking of wild life resources
in IIimmitand Zavala Counties by bow hunting is regulated by the provisions
of H. B. No. 47 insofar as conflicts exist between the provisions of that
act and H. B. No. 962.

          Examination of the acts involved shows that H. B. No. 47 was given
final approval by the Legislature on May 11, 1959; was approved by the
Governor on May 20, 1959, and was effective 90 days after May 12, 1959, the
Honorables G. Curtis Jackson and Andrew P. Johnson, Page 5. (w-724)



date of adjournment. H. B. No. 962 was given final approval by the Legis-
lature on May 8, 1959; was approved by the Governor on May 26, 1959, and
was effective on September 1, 1959, by terms of its Section 16.

          That portion of Section 1 of H. B. No. 47 which has already been
quoted provided for a statewide open archery season for hunting game, al-
though another portion of Section 1, designated Article 879h-5, provided
that in counties where hunting seasons other than an archery season are
less than 31 days, the Game and Fish Commission shall determine the length
of the archery season and shall set the opening and closing days of such
season. Section 2 states that all laws or parts of laws in conflict are
repealed and Sections 2A and 2B exclude certain counties from the operation
of the act, although Dimmit and Zavala Counties are not among those so ex-
cluded.

          H. B. No. 962 repealed all laws and parts of laws prescribing
open and closed seasons and means and manner for the taking of the wildlife
resources of Dimmit and Zavala Counties. It further provided that efPective
on and after September 1, 1959, and until a subsequent date, the Game and
Fish Commission would provide, by proclamation issued after a hearing was
held, the periods of time and the means, method, place, and manner of taking
wildlife resources of these two counties.

          Texas courts have long adhered to that rule of statutory construct-
ion concerning enactments of the same Legislative session which is stated
in Section 2020, Statutes and Statutory Construction by J. G. Sutherland,
Third Edition by Frank E. Horack, Jr., 1943,Vol. 1, pages 484-485:

               "In the absence of an irreconcilable conflict
          between two acts of the same session, each will be con-
          strued to operate within the limits of its own terms
          in a manner not to conflict with the other act.4 How-
          ever, when two acts of the same session cannot be
          harmonized or reconciled,5 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 term&."

Section 2020 as above quoted has been cited with approval in Attorney Gene-
ral's Opinions No. o-5891,at page 7, dated May 30, 1944, and No. V-990, at
page 4, dated January 26, 1950. The same general rule is stated in Sta-
tutes Section 78, 39 Tex. Jur. 145, which is cited in the Texas case which
was decided on the basis of a fact situation most similar to that which
now confronts us, Ex Parte De Jesus De La O., 227 S.W.2d 212 (Tex. Grim.
1950).
          Efforts to simply construe together H. B. No. 47 and H. B. No.
962, as two acts of the same session, prove unsatisfactory in determinat-
Honorables G. Curtis Jackson and Andrew P. Johnson, Page 6.   (m-724)



ing which provisions of the acts regulate the taking of wildlife resources
by bow hunting in Dimmit and Zavala Counties. Such being the situation, we
may rely on the rule stated in the Jesus de la 0. case at page 213:

               "The two acts are in irreconcilable conflict,
          and therefore the latter act, S. B. 425, . . . being
          the latest expression of the legislature, will pre-
          vail over H. B. 656 . . -".

          The facts of the Jesus de la 0. case were that PI.B. No. 656 was
enacted by the Legislature on June 21, 1949, and was effective upon its
approval by the governor on June 29, 1949. S. B. No. 425 was enacted by
the same Legislature on June 22, 1949, and was approved by the Governor on
June 29, 1949, to become effective 90 days after adjournment of the Legis-
lature.

          The date relied upon by the court in the Jesus de la 0. case to
determine which of the acts was "the latest expression of the Legislature"
was the date when the Legislature itself finally enacted (approved) the
particular act. This choice was the most reasonable one since the court
admittedly is only endeavoring to follow the intent of the Legislature it-
self in determining which provisions are applicable in a given situation.
Likewise Section 2020 of the Sutherland work refers to "the latest enact-
ment" as governing, and, with every Texas act initially proclaiming "Be it
enacted by the Legislature of the State of Texas", the approval of the
Legislature constitutes the enacting to which reference is made.

          The answer to the question therefore is that, insofar as provi-
sions of H. B. No. 47 and H. B. No. 962 are in conflict, the provisions of
H. B. No. 47 govern because that act represents the latest expression of
the Legislature, having been fir&ly approved by the Legislature on May
11, 1959, some three days after the same Legislature finally approved H. B.
NO. 962 on May 8, 1959.

          In view of the answers of this opinion to your first and second
questions, there appears no need to answer your third and fourth questions.
Since under this opinion, with regard to bow hunting, provisions of H.B.
No. 47 govern when they conflict with B. ~..962 provisions, Dimmit and
Zavala Counties are under H0 B. No. 47-

          It may be noted that, since there were no other hunting seasons
in either county since September 1, 1959, as a result of H. B. No. 962
being effective other than as to bow hunting, the two counties at the time
of your request for an opinion were within Article 879h-5 of Ii.B. No. 47
as counties where the hunting season is less than 31 days. Therefore, such
bow hunting season as would exist in Dimmit and Zavala Counties would be
that provided by the Game and Fish Commission by proclamation under the pro-
visions of B. B. No. 47.
Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 7.    (WW-724)



          This result is consistent with the pattern followed by the Le-
gislature in enacting H. B. No. 47, since all 98 counties whose wildlife
resources are under the regulatory authority of the Game and Fish Commis-
sion were either completely excepted from the provisions of H. B. No. 47
or are within the less-than-31-day hunting season provision, Article 879h-5%
This, of course, means that the wildlife resources of none of these 98
counties were subjected to the automatically applicable October l-31 bow
hunting season provided by Article 879h-1 of H. B. No. 47, but rather would
still be within the regulatory authority of the Game and Fish Commission.

                                SUMMARY

               Section 2C of H. B. No. 47, as amended, is uncon-
          stitutional, but, because the section is properly se-
          verable, despite the absence of a severability clause
          in the bill, the invalidity of Section 2C does not
          render the remaining provisions of the bill unconsti-
          tutional.

               The taking of wildlife resources in Dimmit and
          Zavala Counties by bow hunting is governed by the pro-
          visions of H. B. No. 47 insofar as conflicts exist
          between provisions of H. B. No. 962 and H. B. No. 47,
          which was the latest approved by the Legislature and
          therefore represents the latest expression of the Le-
          gislature.

                                             Very truly yours,

                                             WILL WILSON
                                             Attorney General of Texas



                                             By:

                                                   Assistant
Cl?C:aw
Honorable6 G. Curtis Jackson and Andrew P. Johnson, Page 8.   (w-72’+)



APPROVED:

OPINION COMMITTEE:

W. V. Geppert, Chairman

Houghton Brownlee
R. V. Loftin, Jr.
W. 0. Shultz

REVIEWED FOR THE ATTORNEY GEXiERAL
BY:
     Leonard Passmore
