Untitled Texas Attorney General Opinion ( 1971 )


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  • Honorable Homer R. Taylor            Opinion No. M-938
    County Attorney
    304 Courthouse Building
    Wharton, Texas 77488                 Re:   Revival of Article 1484,
    Vernon's Penal Code, by
    Dear Mr. Taylor:                           Senate Bill 249.
    You have requested the opinion of this office on whether
    Senate Bill 249, which was passed in 1971 by the 62nd Legisla-
    ture, revives Article 1484, Vernon's Penal Code.
    Senate Bill 249 reads as follows:
    "AN ACT relating to the recording and re-recording of
    livestock brands and marks; and declaring an emergency.
    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    Section 1. (a) This Act shall apply to every
    county in this State. In all the counties each owner
    of any livestock mentioned in Chapter 1 of Title 121
    of the Revised Civil Statutes of 1925 shall within
    six months after this Act takes effect have his mark
    and brand for such stock recorded in the office of
    the county clerk of the county, These owners shall
    record the marks and brands whether the brands and
    marks have been previously recorded or not.
    (b) The owner shall have the right to have his
    mark and brand recorded in his name who according to
    the present records of the county first recorded the
    brand and mark in the county, or in event it can not
    be ascertained from the records who first recorded
    the brand and mark in the county, then the person who
    has been using such mark and brand the longest shall
    have the right to have the brand and mark recorded in
    his name.
    (c) After the expiration of six months from the
    taking effect of this Act all records of marks and
    brands now in existence in the county shall no longer
    have any force or effect and after the expiration of
    six months only the records made after this Act takes
    -4573-
    Honorable Homer R. Taylor, page 2      (M-938)
    effect shall be examined or considered in recording
    marks and brands in the county.
    (d) Immediately upon the taking effect of this
    Act the county clerk of the county shall have this
    Act published in some newspaper of general circu-
    lation in the county for a period of thirty days.
    The publication shall be paid for by the county out
    of the general county fund.
    Sec. 2. All clerks in re-registering brands
    shall comply with Articles 6890 through 6899, in-
    clusive, of the Revised Civil Statutes of Texas, 1925,
    as amended, and with Section 1, Chapter 273, Acts of
    the 41st Legislature, 1929, as amended (Article 6899a,
    Vernon's Texas Civil Statutes), and shall also be
    aware of and comply with Articles 1484, 1485, and
    1486 of the Penal Code of Texas, 1925.
    Sec. 3. All brands and marks registered under
    the provisions of this Act shall be re-registered
    every 10 years in the manner prescribed in Section 1
    of this Act.
    Sec. 4. The importance of this legislation and
    the crowded condition of the calendars in both Houses
    create an emergency and an imperative public necessity
    that the Constitutional Rule requiring bills to be
    read on three several days in each House be suspended,
    and this Rule is hereby suspended; and that this Act
    take effect and be in force from and after its pas-
    sage, and it is so enacted."
    In Attorney General's Opinion No. O-6869 (1945), this office
    concluded that Article 1484, Vernon's Penal Code, and a portion of
    Article 6890, Vernon's Civil Statutes, which prohibited a livestock
    owner from recording and using more than one brand or mark to iden-
    tify livestock, were repealed by implication by the 1945 amendment to
    Article 6899, Vernon's Civil Statutes. This latter amendment, desig-
    nated as Section la of Article 6899, allowed the recordation and use
    by one owner of rrore than one brand or mark and was in irreconcilable
    conflict with the earlier statutes, Articles 1484 and 6890. The 1945
    amendment adding Section la to Article 6899 provided that all laws
    and parts of laws in conflict were repealed. The legislature has
    never modified the language of any of the foregoing statutes so as to
    require an interpretation different from that of Opinion No. O-
    6869.
    No language in   Senate Bill 249 expressly attempts to revive
    Article 1484 of the   Penal Code. Senate Bill 249 requires only that
    brands and marks be   recorded within the time specified and makes no
    express restriction   on the number of brands or marks which may be
    recorded or used.
    -4574-
    .
    Honorable Homer R. Taylor, page 3     (M-938)
    Se&ion 2 of Senate Bill 249 provides that county clerks
    recording brands and marks shall comply with various statutory
    provisions, including Article 6899, Vernon's Civil Statutes, and
    Article 1484, Vernon's Penal Code. Since Section la of Article
    6899 allows the recordation and use of more than one brand or
    mark and Article 1484 makes punishable by fine the use of more
    than one brand or mark, the two statutes remain in irreconcilable
    conflict. No language in Senate Bill 249 resolves this conflict.
    This office therefore remains of the opinion that Section la of
    Article 6899 by clear implication repealed the earlier enacted
    Article 1484.
    Should the reference to Article 1484 in Section 2 of Senate
    Bill 249 be construed as an attempt to revive Article 1484, the
    attempt is ineffective in view of the Texas Constitution, Article
    III, Section 36, which provides as follows:
    "NO law shall be revived or amended by reference
    to its title; but in such case the acts revived, or
    the section or sections amended, shall be re-enacted
    and published at length."
    This constitutional
    _ _         provision prohibits the revival of a
    statute repealea expressly or oy implication merely oy fererence
    to the repealed statute and requires that the repealed statute
    must be completely re-enacted before it can be effective,  Thomas
    v. Groebl, 
    147 Tex. 70
    , 
    212 S.W.2d 625
    (1948); State Bank of
    Bar-      v. Cloudt, 
    258 S.W. 248
    (Tex. Civ. App.-San Antonio/
    1924, no writ-is      office therefore is of the opinion that
    Senate Bill 249 does not revive Article 1484 of the penal code.
    SUMWARY
    Senate Bill 249, passed by the 62nd Legislature,
    does not revive repealed Article 1484, Vernon's
    Penal Code. The provision in Article 6899, Sec-
    tion la, that one owner may record and use more
    than one brand or mark with which to identify
    livestock remains in effect.
    Y       very truly,
    -4575-
    Honorable Homer R. Taylor, page 4      (M-938)
    Prepared by Roland Daniel Green, III
    assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Max Flusche
    Jerry Roberts
    Jack Goodman
    Marietta Payne
    MEADE F. GRIFFIN
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant
    -4576-
    

Document Info

Docket Number: M-938

Judges: Crawford Martin

Filed Date: 7/2/1971

Precedential Status: Precedential

Modified Date: 2/18/2017