Untitled Texas Attorney General Opinion ( 1988 )

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
p. 4568
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
p. 4572