
    George Papageorge v. State.
    No. 26,135.
    April 15, 1953.
    State’s Motion for Rehearing Denied (Without Written Opinion) May 27, 1953.
    
      J. W. Cooper, Jr., Corpus Christi, for appellant.
    
      Noah Kennedy, Jr., County Attorney, Corpus Christi, and George P. Blackburn, State’s Attorney, Austin, for the state.
   ON appellant’s motion for rehearing.

WOODLEY, Judge.

This is a conviction upon complaint and information admittedly predicated upon Art. 941 V.A.P.C. for a subsequent offense of using a seine within the waters of Ingleside Cove, the punishment assessed being a fine of $200.00.

A prior conviction for the same act was reversed because of a defect in the allegations as to the prior convictions. Papageorge v. State, 157 Tex. Cr. R. 119, 246 S.W. 2d 880.

Appellant now contends that insofar as the waters of Ingleside Cove are concerned, Art. 941 V.A.P.C. was repealed by S.B. 317, Acts of the 45th Legislature (1937), p. 372, Ch. 182, long before the filing of' the complaint herein. “Ingleside Cove” does not appear to be among the waters named as closed to the use of seines and the act provides “it shall be lawful to possess or use a licensed trawl, net or seine in any other salt waters of Nueces County not mentioned in this Act as closed.”

Ingleside Cove appears to have been excluded from waters closed for the use of seines by the above Act of 1937 and appellant’s contention must be sustained.

We note that by Act of the 47th Legislature (1941) p. 406, Ch. 236, the legislature again prohibited the use of seines in certain waters of Nueces and Corpus Christi Bays which closed waters may include Ingleside Cove. Under that act the distance from the shore line is material in determining whether the waters are closed to the use of seines.

Also in both the 1937 and 1941 Acts the punishment is different from that provided in Art. 941 V.A.P.C.

The original opinion affirming the conviction is withdrawn, appellant’s motion for rehearing is granted, and the judgment is now reversed and the prosecution ordered dismissed.  