Untitled Texas Attorney General Opinion ( 1969 )

THE AYETCBRNEB~ GENERAL
OF XAS
Honorable J. R. Singleton opinion No. M-444
Executive Director
Parks and Wildlife Department Re: Whether the provisions
Austin, Texas 70701 of H.B. No. 957, Acts
1969, 61st Leg. R.S.,
Ch. 260, p. 767, may be
enforced by law enforce-
ment personnel of the
Parks and Wildlife Depart-
Dear Mr. Singleton: ment?
You have requested an opinion from this office
concerning the authority of Parks and Wildlife law
enforcement personnel to enforce the pertinent pro-
visions of H.B. No. 957, Act 1969, 61st Leg. R.S.,
Ch. 260, p. 767, which became effective May 27, 1969,
and reads in part, as follows:
"Section 1. It shall be unlawful for any
person, other than the owner or operator there-
of, to fish or to take any fish from any fish
farm, except with the consent of the owner or
operator thereof.
"Sec. 2. Any person violating Section 1
hereof, shall upon conviction thereof, be
guilty of a misdemeanor and subject to a fine
of not less than $25 nor more than $200. Any
person violating Section 1 of this Act, who
shall take fish of a value in excess of $200
from any such fish farm shall upon conviction
thereof, be guilty of a felony and punished by
imprisonment in the state penitentiary for a
term of not more than 10 years."
The Game, Fish and Oyster Commission was specifically
charged with the duty and obligation to enforce laws for
the protection and preservation of wild game, wild birds,
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Honorable J. R. Singleton, Page 2, (M-444)
and fish. Articles 905, 906, 978, Vernon's Penal Code,
Article 4018, Vernon's Civil Statutes. That commission
was abolished by Article 978f-3, Vernon's Penal Code,
Acts 1951, 52nd Leg., Ch. 476, p. 850, but all its
powers; duties and functions were thereby vested in the
Game and Fish Commission which was subsequently re-
constituted as the present Parks and Wildlife Depart-
ment by Article 978f-3a, Vernon's Penal Code, Acts 1963,
58th Leg., Ch. 58, p. 104.
Enforcement personnel of the Parks and Wildlife
Department have substantial powers within their own
field as established by the game and fish laws, and
such other enforcement au hority as may be specifically
delegated to them by law. i However, they are not clas-
sified as "peace officers," as defined in Article 2.12,,
Vernon's Code of Criminal Procedure, and consequently,
they are not clothed with the general enforcement
authority of ordinary peace officers in this State.
House Bill No. 957 does not specifically authorize
enforcement of its provisions by the Department or its
personnel, therefore, the immediate question is whether
the Act is a "game or fish law" such as would regularly
be enforceable by the Department.
Fish are classified as animals ferae naturae, that
there is no individual property inld animals or
gT;h so long as they remain wild, unconfined, and in a
state of nature. Jones v. State, 45 S.W.2d 612 (Tex.
Crim. 1932). While they are at freedom their ownership
is in the State for the benefit of all its inhabitants,
11 R.C.L. 1015; and, while ownership is in the sovereign,
it is well established that the State has the power and
authority to enact laws for their conservation and pro-
pagation. Sterrett v. Gibson, 168 S.W. 16 (Tex.Civ.App.
1914, no writ): Poon v. Miller, 234 S.W. 573 (Tex.Civ.App.
1921, no writ); Taylor Fishing Club v. Hammett, 88 S.W.Zd
127 (Tex.Civ.App. 1935, error dism.); 11 R.C.L. 1041; see
Attorney General's Opinion No. O-2343 (1940).
1 An example of such additional authority is Art. 1722a,
V.P.C., concerning enforcement of the Texas Water Safety
Act.
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Honorable J. R. Singleton, Page 3, (M-444)
However, when wild animals, or fish, are legally
removed from their natural liberty and made subjects of
man's dominion, they become personal property with title
no longer in the sovereign. Since the decision was
rendered in Jones v. State, supra, it has been clear
that "it was not the legislative intent to place
restrictions on the owner's control over fishing in
privately owned ponds, as distinguished from fresh
water streams and lakes as defined in Article 926 of
the Penal Code." 45 S.W.2d 614, 615.
Inasmuch as the game and fish laws are inapplicable
to fishing in private ponds, it logically follows that
the Parks and Wildlife Department would have no enforce-
ment authority in relation thereto, in the absence of
specific delegation of such authority.
House Bill No. 733, Acts 1969, 61st Leg. R.S., Ch. 298,
p. 884, provides for the licensing of "fish farms" and
reads, in part, as follows:
"Sec. 2. Definitions:
"(a) A 'Fish Farmer' is any person, firm
or corporation engaged in the business of
production, propagation, transportation, pos-
session and sale of fish except fish propagated
for bait purposes, raised in private ponds or
reservoirs.
" b) 'Private Ponds' are defined as ponds
or reservoirs located wholly within the en-
closed lands of an owner or lessor which is
not connected to any stream carrying public
waters nor subject to overflow from any public
waters." (Emphasis supplied.)
In view of the foregoing definitions, it is abundantly
clear that House Bill No. 957 only creates criminal offenses
and provides punishments relating to the theft of personal
property as distinguished from the taking of public property
from public waters.
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Honorable J. R. Singleton, Page 4, (M&444)
Therefore, House Bill No. 957 does not constitute a
"game or fish" law in the common sense; and in the absence
of a specific delegation of authority by the Legislature
to the Parks and Wildlife Department or its personnel,
enforcement of the same lies solely within the general
authority conferred upon the regular peace officers of
this State. However, the personnel of the Parks and
Wildlife Department may arrest a person who is violating
the provisions of H.B. 957, if the offense is Gcnmnitted
in their presence, or within their view, and fish of a
value in excess of $200.00 is taken from a fish farm,
or in connection therewith an offense against the public
peace is committed. Article 14.01, V.C.C.P.
SUMMARY
House Bill No. 957, Acts 1969, 61st Leg.
R.S., Ch. 260, p. 767, relates to the theft
of personal property, as distinguished from
the taking of public property from public
waters; and in the absence of specific dele-
gation of authority by the Legislature to the
Parks and Wildlife Department or its personnel,
enforcement of the same lies solely within
the general authority conferred upon the
regular peace officers of this State. How-
ever, the personnel of the Parks and Wildlife
Department may arrest a person who is violating
the provisions of H.B. 957, if the offense is
committed in their presence, or within their
view, and fish of a value in excess of $200:00
is taken from a fish farm, or in connection
therewith an offense against the public peace
is committed. Article 14.01, V.C.C.P.
Ver
eneral of Texas
Prepared by Monroe Clayton
Assistant Attorney General
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. .
Honorable J. R. Singleton, Page 5, (M-444)
APPROVED:
OPINION COMMITTEE:
Kerns TBylor, Chairman
George Kelton, Vice-Chairman
Tom Mack
Milton Richardson
Ronald Luna
Robert Darden
HAWTHORNE PHILLIPS
Executive Assistant
W. V. GEPPERT
Staff Legal Assistant
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