Hon. Robert S. Calvert                 Opinion No. V-1213
Comptroller   of Public Accounts
Austin, Texas                          Re:   Definition of “coin-operated
                                             machine” for taxation pur-
                                             poses in view of possible
                                             conflict between House Bills
                                             31 and 307, Acts 52nd Leg-
Dear Mr.   Calvert:                          islature.

            You request the opinion of this office as to whether
House Bill No. 307 pass,ed by the 52nd Legislature   repeals or a-
mends House Hill No. 31, passed at the same session of the Leg-
islature.

             House Bill 31 passed the House on April 18, 1951, and
the Senate on May 3, 1951, by a record vote sufficient to become
immediately   effective  upon approval by the Governor.   The Gove*-
nor approved this bill May 19, 1951. House Bill 307 passed the
House on May 2, 1951, and the Senate on May 10, 1951, with a suf-
ficient record vote to make it immediately    effective upon approval
by the Governor.     The Governor approved this bill on June 2, 1951.

               Both of these acts bear upon the same subject, and it
is our duty under long established      rules of statutory construction
to reconcile    them, if possible,  so as not to render ineffective     the
provisions    of either,  It is our opinion, however, that the a,cts are
irreconcilable.     House Bill 31 had for its sole purpose the amend-
ment of paragraph (d) of Article      7047a-2,   R.C.S.  1925, so as to add
coin-operated     midget movies to the definition of merchandise        or
music coin-operated      machines.    Otherwise,   the definition of *mer-
chandise or music coin-operated        machine” contained in the amended
law was not changed.       However, paragraph (d) as amended by House
Bill 307, the later act, omits all reference      to merchandise    or coin-
operated    midget movies.      Paragraph   (d) as contained in House Bill
307,is a complete definition within itself and is a part of’the com-
prehensive    amendment to Section 4 of Article III of House Bill No,
8, Acts 44th Leg., 3rd C.S. 1936, ch. 495, ‘,p. 2840, relating to the
levy of taxes on certain coin-operated       machines.    It completely    re-
places paragraph (d) as worded in House Bill 31.

             There being an irreconcilable  conflict between the two
acts, the later act must prevail.  Att’y Gen. Op. V-990.   Indeed,
House Bill 30:7 expressly  repeals all laws or parts of laws in conflict
Hon. Robert.%     Calvert,   Page   2 (V-1213)




thartwith. The ruI# ia stated in Ex parte        De Eaaus de la O., 227
SbW.Zd 212 (Tex. aim.   1950), as follows:

             “Where two acts passed at the same session of
      the legislature  cannot be reconciled    by any known rule
      of construction,  the first in time or position must give
      way to the last, and the latter act will sta@ as the
      final expression   of the legislative will.  See 39 Tex.
      Jur. 147, Sec. 78; Gain v. State, 20 Tex. App.’ 359; and
      Stevens v. State, 70 Tax. Cr. R. 565, 159 SW. 505.”

            This ruie has been followed in this State by both the
Supreme   Court and the Court of Criminal Appeals.

              In Townsend v. Terrell,    118 Tex. 463, 16 S.W.2d 1063
(1929), the Court had before it the question of which of two acts
passed at the same session of the Legislature      was controlling.   The
first’act was approved March 22, 1927.       The second act was approved
March 25, 1927.     The two acts were “thoroughly inconsistent      and ir-
reconcilable.   * In holding that the last act prevailed the Court said:

             ,“It will be observed that in the amendment ap-
      proved March 25, 1927, there is no express        repeal of
      the abolishing Act approved March 22nd. It is well set-
      tled that repeals by implication    are not favored and that
      all acts and parts of acts in pari materia are to be con-
      strued as a whole and interpreted-             manner as
      that all may stand where such may reasonably         be done.
      It is only where acts are so inconsistent     as to be irrec- :. .’ ~~
      on&able     that a repeal by implication  will be indulged.
      If there exists such conflict, then. there is a presump-
      tion of the intention to repeal all laws and parts of laws
      in conflict with the clear intention of the last act. This
      is necessarily     true where both acts cannot stand as valid       ;’
      enactments.”      (16 S.W.2d at 1064.)

            ,The Court of Criminal Appeals in Stevens v. State, 70
Tex. Grim. 565, 159 S.W. 50,5 (1913), adhered to this rule in the fol-
lowing language:

                      In the case of Chiles v. State, 1 Tex. App.
             a‘
               v  0 .

      31, this court aa%      ‘The two acts, betig passed at the
      same strsion of the Legislature,       oupht, if possible, to
      be construed together, so that both might stand as one
      embodiment of the legislative     will.   But it will be per-
      ceived that these two acts, though panaed at the same
      session,   cannot, by any known rule of construction,      be
      so reconciled    as that both may s,tand; and, ip case there
      is such repugnance between the two as that one must
Hon. Robert   S. Calvert,   Page 3 (V-1213)




      give way, the rule is the last must stand as an expres-
       sion of the will of the Legislature.’    When the Supreme
      .Court had jurisdiction    in criminal matters,   in the case
      of Cainv.   State, 20 Tex. 359, Judge Wheeler,      speaking
      for the court, said:    ‘The rule is that, in construction   of
      acts of the same session,       the whole must be taken and
       construed as one act, and, to make a latter provision
      repeal a former,    there must be an express repeal or
      an irreconcilable    repugnancy between them, and thz
      the latter will control’--citing     3 Moore, 77; Sedgwick
      on Stat. & Const. Law, 410.”

              You are therefore advised that House Bill No. 307 in
effect repeals House Bill No. 31, and you will be governed by House
Bill 307.


                              SUMMARY

              House Bill 31 and House Bill 307, Acts 52nd Leg.,                       -.   J
      1951, each amending paragraph (d) of Article       7047a-2,           ‘.
      V.C.S.,  defining certain coin-operated    vending machines,               ~’
      are in conflict and cannot be harmonized.      Since House
      Bill 307 is the latest expression   of the Legislature,   it
      will prevail over the provisions   of House Bill 31. Att’y
      Gen. Op. V-990 (1950).

                                                 ,Yours     very   truly,

                                                   PRICE DANIEL
                                                  Attorney General


APPROVED:                                         By      if-
                                                       L. P. Lollar
~W. V. Geppert                                            Assistant
Taxation Division

Jesse P. Luton, Jr.
Reviewing Assistant

Charles D. Mathews
First Assistant



LPL/mwb