Untitled Texas Attorney General Opinion

L OF EXAS Honorable Crawford C. Martin Secretary of State Austin 11, Texas Opinion No. C-94 Re: Date on which election on proposed Constltutlon- al Amendment contained in Senate Joint Resolution Dear Mr. Martin: No. 26 is to be held. Your request for an opinion reads as follows: "The opinion of your office is re- quested'concernlng the proper construc- tion of Senate Joint Resolution No. 26, Acts of the 58th Legislature, and the duties of the Secretary of State there- under. S.J.R. No. 26 passed the Senate on April 23, 1963 and passed the House on May 23, 1963 with an amendment. Cm May 23, 1963, the Senate concurred in the amendment. S.J.R. No. 26 was filed In the office of the Secretary of State on May 30, 1963, without the signature of Governor Connally. "There Is a conflict between Section 2 and Section 3 of S.J.R. No. 26 with respect to the date upon which the pro- posed Constitutional Amendment is to be submitted to a vote. Section 2 states In part: 'The foregoing Constitutional Amend- ment shall be submitted to a vote of the qualified electors of this state at the General Election in November, 1964.1 Set - tlon 3 states as follows: 'The Governor shall issue the necessary proclamation for said election to be held on the first Satur- day after the first Monday In the month of November, 1963, and have notice of said pro- posed amendment and of said election publlsh- ed as required by the Constitution of Texas -464- Hon. Crawford C. Martin, page 2 (c-94) 1 and laws of this state.' The language, 'to be held on the first Saturday after the first Monday in the month of November, 1963, ' was added by the House by floor amendment. Prior to its amendment, Sec- tion 3 made no mention of the date on which the election was to be held. "Inview of the foregoing, we respect- fully request your ruling as to the effect of the conflict of dates for voting and which, If either, of the dates shall pre- vail." We agree with you that Section 2 and Section 3 of Senate Joint Resolution No. 26 of the 58th Legislature, Regular Session, are In irreconcilable conflict, since Section 2 provides that the election on the proposed Con- stitutional Amendment contained therein shall be at the General Election in November, 1964, while Section 3 re- quires said election to be held on the first Saturday after the first Monday in the month of November, 1963. - (Em- phasis ours). When two acts of the same session of the same Legls- lature cannot be harmonized or reconciled, that statute which Is the latest enactment will operate to repeal the prior stat- ute of the same session to the extent of any conflict In their terms. Ex parte de Jesus de la 0, 227 S.W.2d 212 (Tex.Crim. 1950). As between conflicting provisions of the same enact- ment of the Legislature, the prevailing line of authority as announced by a majority of the courts passing on the ques- tlon Is that the latest in point of order of arrangement pre- vails. Stevens v. State, 159 S.W. 505 (Tex.Crim. 1913); Parshall v. St t 138 S.W. 759 (Tex.Crlm. 1911); Attorney General's OpinFo% o-6621 (1945), O-6379 (1945) and O-5329 (1943). It is our opinion that the answer to your question is governed by the authorities cited in Attorney General's Opinion o-6621, supra, and we therefore quote the following from this opinion: "The conclusion thus reached requires an answer to the question: As between con- flicting provisions of the same enactment of the Legislature, which should prevail? -465- Hon. Crawford C. Martin; page 3-,(C-,94) ". '.I' "Although the rule has been tirltlclz- ed as 'purely arbitrary' (Smith v. Board of Trustees of Barnes City, ,198 Cal. 301, 245 P. 173), in accordance with the prln- ciple that the last expression of the Legia- latlve will is the law, in case of conflict- ing provision'sin the same statute, the pre- vailing line of authority as announced by the majority of courts passing upon the question in this country seems overwhelming that the last in point of time or'order of arrangement prevails. ;59 C.J. 999, g 596; ,Great Northern 155 F. 945 84,~ C ,A 93 :&i~;dv208U%~452 28 S'Ct 3i3' 52 L'Ed. 567; US. v. Jaakson,'l43 F: 763, 7; C.C.6. 41, reversing C.C. Ex parte JaCkson~,140 F. 266; U.S. V. Updike, 25 F.2d 746, affirmed 32 F.28 1 certiorari granted fckkk281 U.S. 469, ,50 S.Ct. 367, 74'L% 984; Inre Richards, C.C.A., 96 F. 935; Rey- nolds v. 'U.S.,95 Ct.Cl. 160. "For cases to the same effect, from elght- een states of the union see C.J. 999, g 596, note 58. "Texas has clearly followed this rule of necessary construction In the case of Parshall v. State,'62~Tex.Cr.R. 177, 138 S.W. 767, from which we quote the following: 'I* * + "The different sections or pro- visions of the same s~tatuteor Code should be so construed as to harmonize and give effect to each, but, If there'is an Irreconcilable conflict, the later in position prevails." Lewis' Suth. on Stat.Const. (2d Ed .)> 8 268, p. 514; cltlng'Ex parte Thomas, 133.Ala. 1,. 21 South. 369; Hand v. Stapleton, 135 Ala. 156, 33 South. 689; Van Horn v. State, 46 Neb. 62, 64 N.W. 365; Qnaha Real Est. & T. Co. v. Krag- SCOW, 47 Neb,.502, 66 N.W. 658. And: "If a conflict-exists between two statutes or pro- vlslons, the earlier in enactment or position Is repealed by the later. 'Leges posteriores priores contrarias abrogant.' Where there la an irreconcilable conflict between different sections or parts of the same statute, the ,-'466- Hon. Crawford C. Martin, page 4 (C-94) last words stand, and those which are in conflict with them, so far as there la a This rule is applicable where no reasonable construction will harmonize the part8. It Is presumed that each part of a statute is intended to coact with every other part; that no part Is intended to antagonize the general purpose of the enactment. To as- certain the legislative Intent every part of an act, and other acts In pari materia, are to be considered. One part of an act may restrict another part - an early section a later, and vice versa; but if one part is so out of line with other parts and the general purpose of the act that It can only operate by wholly neutralizing some other part, then the later provision is supreme, as,express- lng the latest will of the lawmaker. . , .” (Emphasis ours). ‘TO the same effect, see Stevens v. State, 70 Tex.Cr.R. 565, 159 S.W. 505. “This view Is strengthened by our holding in Opinion No. O-5329, wherein this department was considering conflicting provisions in ap- propriations for the Certificate of Title Divi- sion from Certificate of fltle fees in the High- way Fund. Ch. 400, Acts 43rd Leg., supra, at p. 946. One proviso limited the appropriation to $175,000.00. In a paragraph following the pro- viso, expenditure of sufficient certificate of title fees to administer the act was authorized. The opinion on the question involved is as fol- lows: “‘Since there is a direct conflict between these two provisions, which cannot be resolved by the application of any other rule of statu- tory construction, we must apply the rule that In case of conflict between provisions of the same enactment, the provision last in point of position in the Act controls, on the theory that.it is the latest expression of the legis- lative will. Stevens v. State, 159 S.W. 505. -467- Ron. Crawford C. Martin, page 5 (,C-@) Thus the proviso ls~superseded by the paragraph succeeding It. "'It has been suggested that the con- flict is to be resolved by regarding the proviso as an appropriation from the Gene- ral Fund. To this we cannot agree. It it not the province of construction to vary the meaning of unambiguous language In order to avoid a conflict between portions of the law. This is legislation -- not interpreta- tion. I "In our Opinion O-6379, it was held: "'In view of the foregoing authorities, it will be seen that In case of repugnancy between two provisions of the statute, the posterior in position should be given effect as being the later expression of the legls- lature.' Citing 39 Texas Jurisprudence 139 and Stevens v. State, supra." In view of the foregoing, you are therefore advised that the provisions of Section 3 of Senate Joint Resolution No. 26 of the 58th Legislature, Regular Session, must con- trol over the provisions of Section 2, since Section 3 is the last in point of order of arrangement and, therefore, the election on the proposed Constitutional Amendment con- tained In S.J.R. 26 is to be held on the first Saturday after the first Monday In the month of November, 1963. SUMMARY Since Sections 2 and 3 of Senate Joint Resolution No. 26 of the 58th Legislature, Regular Session, are In irreconcilable conflict, Section 3 must prevail over the pro- visions of Section 2, since it Is the last In point of order of ar- rangement, and the election on the proposed Constitutional Amendment is to be held on the first Saturday -46a- Hon. Crawford C. Martin, page 6 (C-94) after the first Monday in the month of November, 1963. Yours very truly, WAGGONER CARR Attorney General /Lcco, BY John Reeves Assistant JR:ms APPROVED: OPINION COMMITTEE W. V Geppert, Chairman Gordon Appleman J. Arthur Sandlin Linward Shivers Jerry Brock APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone -469-