Untitled Texas Attorney General Opinion ( 1969 )

Honorable Dwayne V. Overstreet Opinion No. M-345
County Attorney of Rardin COUntY
Rardin County Courthouse Re: Construction of Article
Kountze, Texas 77625 1377B, V.P.C., relating to
Justice Court jurisdiction,
and sufficiency of enclo-
Dear Mr. Overstreet: sure.
In connection with your recent request for opinion you submitted
the followtng fact situation:
"In Hardin County, there are wildlife and hunting
associations and cluba with leases on large tracts
of land, one of which is composed of approximately
40,000 acres. Each of these clubs have leases on
these large tracts of land with a general enclosure
around the large tracts of land. There is some cross
fencing in some of the cluba. Yet, within the general
enclosures, there are small tracts of land not included
In the leases held by the game clubs and these small
tracts of land, some of which may be composed of 10
acres and others which may be composed of 200 acres
are not fenced separately and apart, but are situate
within the general enclosure of the game and wildlife
clubs."
In connection with such facts..youpre~sentthe ,followlng queetlons:
(1) Will this general enclosure enable the,game club officials
and/or~wardens to file trespass charges under Article 1377b on an
individual hunting on the leased property of the game club within
the general enclosure?
(2) Will this enclosure enable the game club officials and/or
wardens to file trespass charges on an owner or lessee of one of
the small tracts who is found hunting on the leased property of the
game club within the general enclosure?
(3) In view of the wording of Article 1377b, Section 3, Vernon's
Annotated Penal Code, does a Justice Court have jurisdiction to try
a treapaas case?
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Hon. Dwayne V. Overstreet, Page 2 (M-345)
Section 1 of Article 1377b, Penal Code of Texas, provides that no
person shall enter or attempt to enter upon the enclosed land of
another without consent of the owner, proprietor, lessee, or person
in charge thereof, and there do or attempt to do certain Itemized
acts.
Subdivision (a) of Section 2 of Article 1377b provides that a person
who claims the right to use land which is wholly or partially sur-
rounded by land owned by another person shall not enter or attempt
to enter upon the surrounding land without the consent of the owner,
proprietor, lessee, or person in charge of such surrounding land, and
do or attempt to do any of a number of itemized acts.
Subdlvlsion (b) of Section 2 contains an access provision providing
in part that a person who claims the right to use land which is
either wholly or partially surrounded by land owned by another person
shall have the right to enter the surrounding land for purposes of
Ingress and egress to such land that Is wholly or partially surrounded.
Section 3 of Article 137713provides penalties upon conviction for
violation of the provisions of Sections 1 or 2 generally as follows:
Upon first conviction, a fine of $10 to 50.
Upon second conviction, a fine, $200 to % 500
and forfeiture of hunting and/or fishing pri-
vileges for two years; and,
Upon third conviction, confinement in jail not
to exceed 30 days, or by fine of $500 to $1,000
and forfeiture of hunting and/or fishing pri-
vileges for three years.
Article 895d, Penal Code of Texas, provides in part, as follows:
"Notwithstanding any other provision of law,
hunting licenses, ..,., and fishing licenses,
*,.., are not subject to forfeiture for violation
of any .general, local or special game or fish law
or for violation of any rule or regulation of the
Parks and Wildlife Commission."
In the case of Waggoner's Estate v. Qleghorn, (Tex. Sup. 1964) of
378 S.W.2d 47, the Supreme Court held the above.quoted portion of
subsection (b) of Section 2 of Article 1377b, which purports to
grant access rights to the surrounded tract, to be violative of
Section 17 of Article 1 of the Constitution of Texas.
Subsection (b) of Section 2, however, is neither related nor material
to the other provisions here under consideration, and further, the
amendatory acts of 1959 and 1963 each contained severability clauses,
and If the remaining portions may stand alone they will stand un-
affected by the Wagoner case.
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Hon. Wayne V. Overstreet, Page 3 (M-345)
The remaining portions of Section 2 present other problems which
we feel render such section wholly inoperative. Although not
directly material to the fact situation you prasent, we must
observe that subdivision (a) of Section 2 is directed not only
to those tracts totally surrounded by larger tracts but also to
those that are partially surrounded. Whether the term “partially
surrounded” Is intended to apply to all adjoining tracts with a
single common boundary no matter how short the line, or whether it
Is limited to situations where 3 of 4 sides are surrounded, or maybe
17 of 23 sides, it is impossible to determine. It is the opinion
of this office that such provision “1s so Indefinitely framed or of
such doubtful construction that it cannot be understood, either from
the language in which It is expressed, or from some other written law
of the State,” and therefore must be regarded as wholly Inoperative
under the provisions of Article 6 of the Penal Code of Texas. With
“partially surrounded” tracts excluded from Section 2 there remains
only those tracts totally surrounded coming within the purview of
Subdivision (a) of Section 2.
Section 1 of Article 1377b places the onus upon the land holder to
have his land enclosed if he wants to partake of the protection
afforded him by the trespass statute, but Subdivision (a) of Section
2 would relieve a land holder of this requirement, Insofar as his
neighbors are concerned, if he Is big enough to totally surround
them. It Is the opinion of this office that the relative size of
one’sholdings In relation to those of his neighbor is not such
reasonable claaslficatlon as la required by Article 1, Section 3 of
the Constitution of Texas, and for this reason Subdlvlslon (a) of
Section 2, insofar as it attempts to relieve surrounding landowners
of the prerequisites of encloslng their lands, Is In violation of
Article 1, Section 3 of the Texas Constitution and is void and
Inoperative.
Further unequal application of the law Is pointed out by Section 5
of Article 1377b which provides that the surrounding land holder
shall not enter or attempt to enter upon the surrounded land. This
prohibition Is not limited,to the itemized acts prohlblted by Sec-
tions 1 and 2 but is an absolute prohibition against entry. However,
this unequal prohibition is apparently offset by the fact that no
penalty Is provided for its violation.
Your first question, which Inquires as to the sufficiency of the
“general enclosure” under Section 1 of Article 1377b Is answered in
the negative. The “general enclosure” might be considered as enclosed
to everyone, except the surrounded land holders and those persons
having the right of entry under them, but not being enclosed to these
persons, it Is not enclosed to any, as the,large tracts of land In
question are not totally enclosed. The term “enclosed land” as used
in Section 1 of Article 1377b, means land that Is completely and
fully enclosed.
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Ron. Dwayne V. Overstreet, Page 4 (M-345)
For the constitutional reasons herelnbefore set out it is the
opinion of this office that your second question should be answered
In the negative. The exception from the enclosure requirement
being Inoperative, and the land not being "enclosed", no offense 1s
shown.
Article 5, Section 19 of the Constitution of Texas provides that:
"Justices of the Peace shall have jurisdiction In
criminal matters of all cases where the penalty or
fine to be Imposed by law may not be more than two
hundred dollars, ...'
Prior to the enactment of Article 1377b and the repeal of Article
1377, in 1959, Article 1377 provided a penalty of a fine not to
exceed $200 and by forfeiture of hunting and/or fishing privileges
for one year, but Article 893 gave the court the discretion whether
to forfeit such licenses. In the case of Ex Parte Morrla, 325 S.W.2d
386, the Court of Criminal Appeals held that "the Justice Court Is
without jurisdiction to try a prosecution under Article 1377, P.C.,
the punishment provided in the statute for Its violation not being
limited to a fine of $200.00."
Article 1377, Acts 1959, 56th Leg., 2nd C.S., p. 164, ch. 42, was
repealed and Article 1377b providing for fine only of $10 to $50
upon first conviction was enacted. Since that time Article 893 has
been repealed and Article 895d enacted.
It is the opinion of this office that the bar to Justice Court
jurisdiction on first offense trespass has been removed by the present
provisions of Article 1377b and that such first offense is within the
jurisdiction of the Justice of the Peace Court, but that It Is the
only offense under the Article that Is within such jurladlctlon in that
the Second and Third offense penalties are not limited to a fine of
not more than $200.00.
SUMMARY
A general or perimeter enclosure around a tract of
land which surrounds another tract of land under
different ownership and control does not constitute
such enclosure as is necessary to sustain a conviction
under Section 1 of Article 1377b, Vernon's Penal Code.
The provision in Section 2 of Article 1377b excluding
the surrounding tract from requirement of enclosure la
in vlolatlon of Article 1, Section 3 of the Texas Con-
stitution, requiring reasonable classification. Justice
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Hon. hrayne V. Overstreet, Page 5 (M-345)
of the Peace Court has jurlsdlctlon over first con-
viction trespass under Article 1377b, but not over
second or third conviction cases.
VW truly yours,
C. Martin
General of Texas
Prepared by Harold 0. Kennedy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Jo Betsy Lewallen
Charles Rose
Bob Lattlmore
Tom Bullington
W. V. CiEPPERT
Staff Legal Assistant
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