Untitled Texas Attorney General Opinion

L . OF TEXAS Honorable J. R. Singleton Opinion No. M-675 Executive Director Texas Parks and Wildlife Dept. John II. Reagan Building Re: Are the Game Management Austin, Texas 78701 Officers of the Texas Parks and Wildlife Depart- ment authorized under Ar- ticle 1722a, Vernon's Penal Code, to enforce a certain Resolution of a.County Com- Dear Mr. Singleton: missioners Court? You~have inquired whether game wardens in your depart- ment are authorized to enforce a Red River County Commissioners Court resolution purportedly enacted under the provisions of the Texas Water Safety Act, .Article 1722a, V.P.C. The resolu- tion makes unlawful the Possession of rifles or pistols on, over or within five hundred (500) feet of "Langford Lake" near Clarksville, Texas.&/ 1/ "It shall be unlawful for any person to possess for the purpose of shooting, any rifle or pistol of any kind or character on or over the waters of. . .'Langford Lake'. . .in Red River County, and the possession by any person of a rifle or pistol within a distance of five hundred (500) feet from the water of said lake shall be prima facie evidence of a violation . e . D . , "This Regulation is enacted under the provisions of Section 19b of the Texas Water Safety Act, V.P.C. 1722a, and all provisions of this Section are intend- ed to be consistent with said Texas Water Safety Act." -3223- Honorable J. R. Singleton, Page 2 (M-675 ) Undoubtedly, the Legislature may validly bestow such -II -------- l Legislative authority authc as it sees fit upon the respective countv Commissioners county Commission--- Courts. cf. Tex.Const., Art.,V, Sec. 18; Canales vs. Laughlin, Laugh 147 Tex. 169,.214 SW2d 451 (1948). Sect'ion 19(b) of the Texas Water Safety Act authorizes Com- missioners Courts to issue orders with respect to certain lakes which either (a) designate specific areas for restrict- ed use or (b) make rules and regulations relating to the operation and equipment of boats.z/ Section 24(a) of*the Act authorizes game wardens to act as enforcement officers for the purposes of the Texas Water Safety Act.21 Thus, we conclude that game wardens may enforce all Commissioners Court orders properly issued in accordance with Section 19(b). We have determined, however, that the resolution in question is by nature a rule and regulation which plainly 21 "The Commissioners Court of any county, with respect to public waters within the territorm limits of the county but outside the corporate limits of any incorporated city or town or po- litical subdivision as contained in (c) below, except lakes owned by an incorporated city or town, is hereby authorized by order of the Com- missioners Court entered upon its records to des- ignate certain areas to be bathing, fishing, swim- ming or otherwise restricted areas, and to make such rules and regulations relating to the oper- ation and equipment of boats as it may deem neces- sary for the public safety, the provisions of which are consistent with the provisions of this Act.” r Emphasis Supplied/ 3/ "All peace officers and game wardens of this state and its political subdivisions shall have and are hereby given authority as enforcement officers for the purposes of this Act. ~ .I’ -3224- Honorable J. R. Singleton, Page 3 (M-675 ) does not deal with the operation and equipment of'boats.31 The resolution must therefore be considered invalid as an attempt to regulate subject matter not within the scope of the legislatively delegated authority. We recognize, however, the beneficent intent of the Commissioners Court and the laudable purpose behind its resolution. Enforcement of such a rule might result in the preservation of human life. We have therefore given detailed attention to the possibility that your department might consider the resolution a de facto designation of an "otherwise restricted area" wEhin the meaning of the statute - the rationale being that the resolution desig- nates the entire lake and five hundred (500) feet beyond as an "area" in which the possession of rifles and pistols is proscribed. We have concluded, nevertheless, that should you so construe the resolution, the courts would not uphold the resolution as being within the statutory authority granted by Section 19(b). First, the resolution does not necessarily constitute a de facto designationof an "otherwise restricted area". Apsication of rudimentary rules of statutory construction seem to compel the conclusion that the Legislature did not intend its delegation of authority to encompass restriction of firearms. A settled rule of statutory construction is that words used repeatedly in a statute will bear the same meaning throughout unless a contrary intention appears. cf. 53 Tex.Jur. 2d 220, Statutes Section 153. Section 18 of the Texas Water Safety Act, entitled "Restricted Areas" clearly contemplates that "otherwise restricted areas" means only those areas in which the operation of boats .is 4/ Webster's Third New International Dictionary defines a "regulation"as: 11 . . 0 an authoritative rule or principle dealing with details of procedure, especially one intended to promote safety. . *; a rule or order having the force of law issued by an executive authority of a government, usually under power. . .delegated by legislation.” -3225- Honorable J. R. Singleton, Page 4 (M- 675 ) prohibited or restricted./ Under this rule, the term restricted areas" in Section 19(b) should be given the same construction as Section 18. Two other pertinent rules, exemplified by the Latin phrases, Ejusdem-qeneris and Noscitur a sociis, would in- dicate the same result. Ejusdem gene+smes if, after an enumeration of Darticulars. there IS a sweeoinq clause comprising all other things...The doctrine imports that general words following an enumeration of particular or specific things will be confined by construction to things of the same kind. Section 19(b) reads as follows: "The Commissioners Court. ~ .is hereby author- ized. o oto designate certain areas tb be bath- or otherwise resti-icted areas. . .I' such like" and includes only others of like kind or cha>ac- ter. cf. 53 Tex.Jur. 2a 221, Statutes 8155 and cases cit- ed therein. Especially is this rule applicable where statutes penal in nature are to be construed. Ex Parte Muckenfuss, 107 SW 1131, (Tex.Crim., 1908)'; Ex Parte Roguemore, 131 SW 1101 (Tex.Crim., 1910); Zucarr.oS. State, 197 SW 982 (Tex.Crim., 1917). The Noscit:ur-- a sociis doctrine reiterates that wherever the ext--.- :ent of _~ theass enumerated is doubtful or uncertain, the mean- ing of a doubtful word may be ascertained by reference to words associated with it. cf. 53 Tex.Jur. 26 221, Statutes $154 and cases cited therein. Under either or 11 Restricted areas "Section 18. No person shall operate a boat within a water area which has been clearly marked by buoys or some other distinguishing device as a bathing, fishing, swimming or otherwise restricted area by the Depa~rtment OF by a political subdivision of the State; provided, that this Section shall not apply in case of an emergency, or to patrol or res- cue craft." -3226- Honorable J. R. Singleton, Page 5 (M-675 ) both doctrines, the conclusion necessarily follows that the Legislature intended "otherwise restricted areas" to pertain to areas in which traditional water activities or sports are restricted. The possession or shooting of firearms cannot reasonably be considered such an ac- tivity. We therefore hold that the Commissioners Court resolution does not constitute a de facto designation of an "otherwise restricted area.=- Secondly, even under the application ,of a theory of a de facto designation , we note that Section 19(b) requi=sthat Commissioners Court orders be "consistent with the provisions of this ‘[TexasWater Safety] Act". The "declaration of policy" contained in Section I of the Act indicates that the scope of the Act is limitea in purpose to the regulation of use, operation and equip- ment of boats and to the promotion of uniformity of laws relatingzeto., 6/ Section 29 of the Act, entitled 'Vlni- formity reiterates the limited purpose of the Texas Water Safety Act to the enactment. of uniform boating regulations.z/ Any restrictions on firearms is consequently broader than the scope of the Act. Section 29 (cf..footnote 7) declares that the basic authority for the enactment of boating regulations is ,re- served to the State of Texas. The Parks and Wildlife De: partment is not authorized to regulate. the possession and Y Declaration of p&icy "Section 1. This Act shall be referred to as the 'Water Safety Act.' It is the policy of this state to promote safety for persons and property in and connected with the use, operation, and equip- ment of vessels and fo promote uniformity of laws relating thereto." L Emphasis Supplieg/ L/ "Sec. 29. In the interest of uniformity it is hereby declared to be a basic policy of the State of Texas that the basic authority for *the enactment of boatin re ulations is reserved to 'the State." LBEmphasi: e -3227- Honorable J. R. Singleton, Page 6 CM- 675 I shooting of firearms either by the Texas Water Safety Act or by any other state statute. we doubt that the Courts would conclude the Legislature intended to convey through Section 19(b) a more expansive authority to the Commissioners Court than has been granted to the Parks and Wildlife Department in which the basic regulatory authority has been entrusted. For the foregoing reasons, it would appear that the resolution might easily be held inconsistent with the terms and provisions of the Texas Water Safety Act. Finally we must conclude, in any event, that the resolution of the County Commissioners Court would be held invalid under any theory, since it purports to re- gulate not only the waters of Langford Lake but also the land within five hundred (500) feet therefrom. Section 19(b) clearly restricts the Commissioners Court regula- tory authority to "public waters within the territorial limits of the County" (cf. footnote 2, Supra). Unques- tionably, that portion of the resolution which purports to regulate possession of firearms -- on land must be con- sidered invalid. Construing the Commissioners Court resolution strict- ly as we mustg/, we can only conclude that the resolution neither regulates the "operation and equipment of boats", nor does it designate an "otherwise restricted area" with- in the meaning of the Texas Water Safety Act. Accordingly, the resolution is unauthorized by the Texas Water Safety Act. Seeing no other constitutional or statutory basis for sustaining the resolution , we must therefore advise that it would be improper for game wardens to enforce such a regula- tion. s/ Legislative acts of County Commissioners Court are restricted since such courts have no inherent legislative authority whatsoever. Legislative power of the Commissioners Court is strictly limited to that expressly conferred or necessarily implied by the Texas Constitution or State statutes. cf. Ar- ticle V, Section 18, Constitution of the State of Texas; Van Rosenburg v. Lovett, 173 SW 508 (Tex. Civ.App., 1915, err. ref.); Roper v. Hall, 280 SW 289 (Tex.Civ.App., 1925); Childress County v. State, 127 Tex. 343, 92 SW2d 1011 (1936); Canales v. Laughlin, Supra; Hill v. Sterret, 252 SW2d 766 (Tex.Civ.App., 1952, err. ref. n.r.e.). -3228- . I Honorable J. R. Singleton, Page 7 (M- 675. ) SUMMARY The resolution enacted by the Red River County Commissioners Court has no sustaining indepen- dent constitutional or statutory basis and over- steps the authority granted by Section 19(b) af the Texas Water Safety Act. Accordingly, game wardens are not authorized to enforce the prq- visions of the resolution. Prepared by Earl S. Hines Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Jay Floyd David Longoria Ivan Williams Roger Tyler WFADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WRITE FirstAssistant -3229-