Untitled Texas Attorney General Opinion

THEA'ITORNEY.GENERAL OF TEXAS AUSTIN 11. TEXAS FVILL WILSON A-- GENERAL February 27, 1961 Honorable J. 0. Duncan Opinion No. .WW-1001 District-CountyAttorney Gilmer, Texas Re: Constitutionalityof Sub- section (cl),Section 7 ,of Artlcle~l722a,The Water. Safety Act, requiring every motorboat to carry life pre- servers of the type approved by the Commandant of the Dear Mr. Duncan: United States Coast Guard. In your letter re uesting an opinion from this office you ask whether Subsection ?d), Section 7 of Article 1722a, The Water Safety Act, is constitutional. Section 7, Article 1722a of Vernon's Penal Code, Acts 1959, 56th Legislature,chapter 179, page 369,statesin part: "(d) Every motorboat or vessel shall have aboard one life preserver, buoyant vest, ring buoy or buoyant cushion of the type approved by the Commandant of the United States Coast Guard in good and serviceablecondition for each per- son on board. "(e) No person shall operate or give,per- mission for the operation of a vessel which is not equipped as r$quired by this Section or modi- fication thereof. Section 14 of the Act prescribes penalties as follows: "(a) Every person who violates orfails to comply with any provision of this Act, ,shallbe guilty of a misdemeanor. "(b) Every person convicted of a misdemeanor for which another penalty isnot .providedshall be : Honorable J. 0. Duncan, Page 2 (WW-1001) punished by a fine of not less than Ten Dol-' lars ($10) nor more than Fifty Dollars ($50)." In our opinion, these provisions are constitutional, for the following reasons. Subsection (d) undertakes to adopt by reference cer- tain provisions of federal law, namely, the regulations issued by the Commandant of the United States Coast Guard, In discharge of his official duties, approving certain types of water safety devices. We must first determine whether Subsection (d) was intended to include devices approved after the effective date of Article 1722a, for while the Legislature is competent to adopt existing provisions of federal law, an attempted adoption of prospectiveprovisions of federal law, whether statute or administrativeregulation,is uncon- See State v. Urauhart, 50 Wash. and cases cited therein; Santee Mills v. Query, 122 S.C. 115 S.E. 202 (1922); Brock v. Superior Court, 9 Cal. 26 291, 71 P. 2d 209,(1943); Fla. Indus- trial Commissionv. PeninsularLife Ins. Co., 152 Fla. 55, 10 but Bee People v. Goldfogle, 242 N.Y. 277, Ex Parte Lasswell, 1 Cal. App. 2d 183, In Texas the constructionof a so-called as with other questions of~statutory construction,Is a matter of ascertaininglegislativeintent. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). Since the statute does not'expressly resolve the question, and since the Legislature will be presumed not~,tohave in- tended to contravene the Constitution,County School Trustees v. Edna IndependentSchool Dist., 9 S.W. 2d 506 (Civ. App. 1928I, affirmed 34 S.W. 2d 860 (Corn.App. 1928); Santee Mills v. uery, supra, weeconclude that subsection (d) must be construed as including only those types of water safety de- vices approved by regulationsof the Commandant in effect at the time of its enactment. See Santee~Millsv. Query, .ewr&; Fla. Industrial Commissionv. State, 155 Fla. 772, 21 so. 2d 5gg (1945). Subsection (d) is therefore not uncon- stitutionalas a delegation of legislativepower; its refer- ence to types of water safety devices approved by the Comman- dant serves merely to set forth the class of water safety devices required to be carried aboard in order to avoid the penalties of Section 14. State v. City of Austin, et al, Honorable J, 0. Duncan, Page 3 (WW-1001) 331 S.W. x1 737,-Tex.- (lg6o).l %his case involved the constitutionalityof Article 6674w-4, which provides for reimbursementby the State to utilities of the expense of relocating facilities of the utility located on public rights of way when such reloca- tion is necessitatedby the improvementor constructionof certain designated interstatehighways, provide: that "such, location Is eligible for Federal participation. Acts 1957, 55th Legislature,page 724, Chapter 300, Sec. 4A. The Supreme Court noted in its opinion that this Act was evidently passed In order to take advantage of the provisions of the Federal- Aid Highway Act of 1956, which authorizedpayment of Federal funds to the states as reimbursementfor expenses of utility relocation,so long as payment by the State to the utility would not violate State law or any legal contract between the utility and the State. $e statute,alsoprovided that the term 'cost of relocation was to refer to an amount calculated in a specifiedmanner, 'and otherwise as may be fixed by re- gulations for Federal cost participation." The Court rejected the contention that the statute was an unconstitutionaldele- gation offlegislativepower to the United State, its Congress and agencies, stating: I, . . . A change in the percentage of Federal participation will naturally affect the amount which the state receives by way of reimburse- ment, but will not alter in any way the obliga- tion of the state to the utilities. No part of the expense will be paid by~the state, of course, if the relocation is not eligible for Federal participation,but in making this provision the Legislature was simply establishinga class of re- location projects for which the utilities will be entitled to reimbursement. It is our opinion that the classificationis reasonableand that the law, is not unconstitutionalas a delegation of legisla- tive power.' The question of whether Article 6674w-4 was intended to adopt future provisions of federal statutes or administrative,,.regu- lations was not discussed. We do not believe, howe,ver,that this opinion is properly read as holding that such an effect was intended by the Legislature (but that the Article so con- strued is neverthelessnot an unconstitutionaldelegation of power to the federal government). We take this view notwith- standing the language in the opinion regarding future changes (See Footnote No. 1 continued at the bottom of next page.) Honorable J, 0. Duncan, Page 4 (WW-1001) Even though the Statute is notanunconstitutional delegation of power, the membership of this class of water safety devices must be ascertainablewith reasonabledefin- iteness and certainty if the Statute is to withstand an attack as insufficientlydefinite to afford due process of law. Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W. 2d 446 (1942), answers to certified questions conformed to, 166 S.W. 2d 191 (Civ. App. 1942). As to this point, a referenc,eto the regulationsof the Commandant raises some initial doubt. In the first place, Section 7 of Article 1722a requires 'one life preserver, buoyant vest, ring buoy or buoyant cushion of the type apar'ovedby the Commandant of the United States Coast Guard. Literally read, the Statute contemplatesan approval by the Commandant of one type of each of the four kinds of water safety devices men- tioned. In fact, Coast Guard regulationsprovide~for the approval of an indefinite number of types of life preservers,, buoyant vests, ring buoys, and buoyant cushions. 46 C.F.R. 160.002-7, 160.00 -7, 160.004-7, 160.005-7,16o.oog-7, 160.047-7, 160.042-7, 160.049-7, 160.050-7,160.052-q. Under these regulations,the basic requisite for approval of a type of water safety device of one of the four kinds mentioned in Section 7 of Article 1722a is that the type submitted for approval meet Coast Guard specificationsfor devices of its kind (whether life preserver, buoyant vest, ring buoy, or buoyant cushion), material (whetherkapok, cork, balsawood, fibrous glass, or unicellularplastic foam), and intended use (some specificationsare~for devices foruse 'onmerchant vessels, others for devices for use on motor boats, still others for devices to be used on "motor boats of classes A, 1, or 2 not carrying passengers $or~hire"). As of the effective date of Article 1722a, furthermore,there were many types of water safety devices of each of,the four general kinds mentioned in that Article which had been approved by the '(Cont'd.) in the percentage of federal participationin meeting the expense of utility relocation projects. For the statute did not make reimbursementof the utility con- ditional upon a project's eligibilityfor federal partici- pation in any given percentage,but only up,onits eligibility for federal participation. It adopted no Federal provisions, whether present or future, regarding the percentage of Federal participation. 2Ninety days after May 12, 1959. Honorable J. 0. Duncan, Page 5 (WW-1001) Commandant,each type having been found to meet the basic specificationsfor devices of its general kind. See, e.g., 1959 Federal Register 1871 f.f., Notice of United States Coast Guard of Approval and Terminationof Approval of Equip- ment, Installations,or Materials and Change in Name and Address of Manufacturers,March 10, 1959. Since a Statute is not to be held unconstitutionalif it is subject to any other reasonable construction,State v. City of Austin, su ra; see TraDD v. Shell 011 Co., 145 323, 198 S.W. zdT%-(1g46) , we conclude that it was the intent of the Legislature that the carrying of a life pre- server, buoyant vest, ring buoy, or buoyant cushion of m of the types approved as of the effective date of Article 1722a would satisfy the requirementsof Subsection (d) of Section 7 of that Article. The requirementsof the Statute thus may be precisely and definitely ascertained,so as to remove any question of its constitutionalityin this respect. The fact that the Statute is not unconstitutionalas a delegation of legislativepower or as an insufficientlydefinite penal law does not, of course, preclude the possibility of un- constitutionalityon other grounds. State v. City of Austin, sum-q, held, in addition to the holding already cited, that a statute limiting the class of utility relocationprojects en- titled to be undertaken at state expense to those which under Federal law would entitle the state to a reimbursementfrom the Federal Government was not an unreasonableclassification. 331 S.W. 2d 737, 746. In the case of the present penal statute, however, we are concerned not with privileges dispensed by the Legislature,as to which the Constitutionrequires only that they be distributed without arbitrary discrimination,but ather with rights of person and property, which the ConstitutionT pro- tects against arbitrary deprivationby the state. A legislative restrictionupon such rights imposed by the State in the exercise of its police power is arbitrary and unconstitutionalunless it bears a reasonable causal relationshipto the ends sought to be achieved and unless the ends themselves fall within the scope of the legitimate concern of the State for the protection of the health, safety, or morals of the public. American Federation of Labor v. Mann, 188 S.W. 2d 276 (Civ. App. 19451, no writ history. s. S. Constitution,Amendment XIV; Texas Constitution, Article I, Section lg. Honorable J. 0. Duncan, Page 6 (WW-1001) We feel that there can be no.questionbut that the State may properly enact legislationdesigned to promote safety in the use of boats by private persons. The.questionis whe- ther making it a penal offense to operate a,,boatwithout a life preserver or other water safety device of the type approved by the Commandantof the United States Coast Guard tends toward the achievementof this end with reasonable certainty and effective- ness. The Commandant of the United States Coast Guard, a high ]iederalofficial, is under a general duty by Federal law to . . . promulgate and enforce regulationsfor,the promotion of safety of life and property on the high seas and on,,waterssub- ject to the jurisdictionof the United States . . . 14 U.S.C., Section 1. At the time Article 1722a was enacted, furthermore, the Commandanthad various specific duties with respect to formu- lating minimum standards of approval for many kinds of water safety devices, including the four kinds mentioned in that Arti- cle, 46 U.S.C., Sections 390b, 481, 526e, 526p,'and had formulated and published many su;hCs~hdards In detail, frequentlyrevising and amending them. Subsection Q, Specifications. While public officials aie't& invariably fair, diligent, and efficient in the discharge of their duties; it is reasonably probable, and will be presumed, that the Commandant of the Coast Guard has met this standard. This being the case It is also reasonablyprobable that the requirementthat boats be equipped with safety devices of the type approved by the Commandant will result in the protection of the life and limb of ~membersof the public; this, in our opinion, is all that the'Constitutionre- quires. Consequently,we conclude that Subsection (d), Section 7 of Article 1722a, Vernon's Penal Code, is constitutional. SUMMARY Subsection (d), Section 7 of Article 1722a, Vernon's Penal Code, is con- stitutional. Yours very truly,. WILL WILSON Attorney General of Texas wExr%w Assistant LH:mm/hmc . Honorable J. 0. Duncan, Page 7 (WW-1001) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Ben Harrison Marietta Payne Arthur Sandlln Iola Wilcox Joe Osborn REVIEWED FOR THE ATTORNEY GENERAL BY: Morgan Nesbltt