Untitled Texas Attorney General Opinion ( 1948 )

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TEE A'ITORNEYGENERAL
0r~T~xAs ;z
AUSTIN. TEXAS
June 16, 1948
Hon. Howard D. Dodgen
Executive Secretary
Game, Fish and Oyster Commission
Austin, ‘Texas *
Attention: Hon. F. M. Oowsert
Re:, Legality of Commercial
netting or fish in
St. Charles and:Puerto
Bays;
Dear’Sir:
You request an opinion on the following mat-
ter:
*Under the provisions of Article 941,
Penal Code 1925, ,as amended by .Acts 1929,
41st Leg. p. 269, ch. ,119, the use of
8 ei~nes and nets is prohibited in St. Charles
bay and Puerto Bay, In H. B. 745, Acts 1943,
48th Leg. , Reg. S,es., c.h.334, p? 563, the use
of agy tackle then permitted in any other, ,
coastal county in the State of Texas was made
legal when fishing ,for commercial purposes
in all tidal waters of Aransas County with
exceptions .o!’passes between inland bays and
the Gulf. This provision w88 to be in effect
for two years or ior the duration,of the war.
“The question pose’dis stated.as follois:
‘The issue seems to be whether Art. 941 of the
Penal Code, was, In effect, repealed by the
legislation by the 48th Legislature taking ef-
rect in May, 1943, SUSpendin& operation 08 Art.
941 in the :tidalwaters of Aranqas County. lR
Chapter,334 of the AOt8 of the 48th Legis-
lature (1943~))R.8. p. 563, provide8 that it shall be
in ‘force
-- ..
Hon. Howard D. Dodgen, Page 2. (V-604.)
"Hereafter, for a period of two (2) years and
for the duration of the war".
And Section 3 of the Acts is as follows:
"Providing that all laws and parts of laws
ihconflict, shall be suspended for a period of
two (2) years or until the end of the war."
The suspension of a statute means a temporary
stop for a time and involves a power which can be exer-
cised only by the Legislature. 39 Tex. Jur., 136,
Sec. 72; 59 C. J. 940, Sec. 553; 50 Am. Jur. 524, Sec.
512.
It is stated in,Vol. 1, Sutherland, Statu-
tory Construction (3rd ed. 1943) at page 516 and 518,
"The suspension of a statute is a temporary
rescission of a.valid legislative enactment by the
execution of a later statute which is to prevail
during its limited operation... And where the
Legislature by a later enactment repeals the sus-
pensory statute, a statute which has been suspended
by the repealed statute is reinstated without ex-
press re-enactment." .
In Texas, the Legislature ha8 the sole "power
of suspending laws in this State." Texas Constitution,
Art. I, Sec. 28; McDonald v. Denton, 132 S.W. 823, 63
Tex. Civ. App. 421, writ of error denied 135 S.W. 1148,
104 Tex. 206.
The suspension of a statute is not the repeal
of a statute. There is a material difference between
the repeal and the suspension of a statute. A repeal
puts an end,'tothe law; it removes the'law entirely.
a suspension holds the law in abeyance; the law still
exists but its operation is suspended ?or the period
of time mentioned in.the suspension statute. Hden88en
v. State of Colorado, 23 P. 995, Memaugh v. City of.
Orlando, (Fla.) 27 so. 34. In our opinion Chapter 334,
Acts 40th Leg. did not repeal Art. 941 P. C,
It is to be.noted that Chapter 334, page 563
of the Acts of,the 48th Legislature, Regular Session
was expressly repealed by the 49th Legislature, Acts
1945, Regular Sessioh. Chapter 209 of Actsof the 49th
Legislature, Page 289, Sec. 14, at page 290, provides:
__
non. Howard D. Dodgen, Page 3. (V-604.)
“for the repeal of Sec.334, Acts of the
Regular Session of the 48th Legislature."
Section 1 of Chapter 273, page 431 of the
49th Legislature, Regular Session, again expressly states:
"That Chapter 334, Acts of the 48th Legis-
lature, 1943, be, and the same is hereby repealed."
The repeal of Chapter 334 of the 48th Legis-
lature, removes the suspension of Penal Code, Article
941, and it is again in full force and effect.
SUMMARY
Chapter 334 of the Acts of the 48th Legis-
lature, Ri S. suspending *for a period of two (2)
years or for the duration of the war" certain por-
tions of Penal Code, Art, 941, was repealed by
Acts ,of,the 49th Legislature, Chapter 209, page
289, and Chapter 273, page 431. Art. 941, Penal
Code, .isnow iufull force and effect.
Very truly yours,
ATTOINEYGRNVRAL~OF TEXAS
'David,Wuhtch
Assistant
,DW:owp
APPROVED: