Untitled Texas Attorney General Opinion

The Honorable John C. White Opinion No. H-764 Commissioner of Agriculture Texas Department of Agriculture Re: Whether persons who P. 0. Box 12847 sell citrus fruit from Austin, Texas 78711 door to door must be licensed under the Citrus Bonding and Licensing Act. Dear Commissioner White: You have requested our opinion concerning an apparent conflict between sections 22 and 4(b) (5) of article 118b, V.T.C.S., The Citrus Fruit Growers Act. Section 22 of the Act provides in part: The provisions of this Act shall not apply to a retailer of citrus fruit. . . . Section 4(b)(5), enacted by the 64th Legislature, provides: For a license as a 'dealer' who sells any citrus fruit from door to door or from temporary locations, the sum of One Dollar ($1). You have asked whether persons described in section 4 (b) (5) are "retailer[sl" within the meaning of section 22 and if so which provision prevails. The word "retailer" is not defined in the Act. However, we need not fully explore the scope of the meaning of "retailer" for in our view even were these vendors within the normal definition of "retailer," the new section 4(b)(5) clearly removes them from the scope of that term as used in section 22. p. 3228 The Honorable John C. White - page 2 (H-764) It is well established that in the case of conflict between statutory provisions the later enacted and more specific provisions must control. 53 Tex.Jur. Zd, Statutes, 5s 100, 101, 143, 161, 187, and authorities cited therein. Since section 4(b)(5) is both the later enacted and more specific provision, it must control. Accordingly, it is our opinion that persons who sell citrus fruit door to door or from a temnorarv location are not “retailerlsl” within the exemption contaked~in section 22. See Paui v. Eggman, 53 Cal. Rptr. 237 (Cal. Ct. App. 1966);xrest v. Morgan, 7 N.Y.S. 2d 988 (Sup. Ct. N.Y. 1938). SUMMARY Section 4(b) (5) of article 118b prevails over section 22 of the same article. Thus, persons who sell citrus fruit door to door or from temporary locations are not within the exemption granted to "retailer[sl" in section 22. Very truly yours, Attorney General of Texas APPROVED: Ti&yiQ+y KENDALL,~ First Assistant C. ROBERT HEATH, Chairman Opinion Committee jwb pm 3229