Untitled Texas Attorney General Opinion ( 1964 )

Opinion No. C-348
Uvalde, Texas Re: Whether the Parks and
Wildlife Commission has the
lawful right to prohibit the
hunting and taking of deer upon
the state-owned dry river beds
of Dimmit, Uvalde, and Zavala
Counties, all other circumstances
being legal, and the river beds
Dear Mr. Crawford: being legally navigable.
By letter, you have requested an opinion from this office
concerning the above question.
Article 3, Section 56, Vernon’s Texas Constitution pro-
vides that the Legislature cannot be prohibited from passing special
laws for the preservation of the game and fish of this State in certain
localities. This provision was held in Stephensen v. Wood, 35 S.W.2d
794 (Tex.Civ.App. 1930), certified questions answered 34 S.W.Zd 246,
to give to the Legislature power to enact srich special laws without
notice to preserve game and fish whether applicable to the entire
State or merely to certain localities.
Pursuant to this constitutional authority, the 57th Legis-
lature, Regular Session, enacted House Bill No. 169, Chapter 99, Sec-
tion 1 of said laws, applying to Dimmit, Uvalde and Zavala Counties.
In Section 1 of said Bill, it was provided that the Game and Fish
Commission may by proclamation, rule or regulation provide the means
and method and theplace and manner in which such wildlife resources
may be lawfully taken and further providing that it shall be unlawful to
hunt and take game unless the owner of the land shall give consent
thereto.
Pursuant to such statute, the State of Texas Parks and
Wildlife Commission, prior to the proclamation hereinafter referred
to, held public hearings regarding its proposed regulations in this
-1654-
.
Honorable R. S. Crawford, Jr., Page 2 (C-348)
P
three-county area. After such hearings, the Parks and Wildlife
Commission issued its proclamation on July 15, 1964, said proclama-
tion prohibiting the hunting and taking of deer upon the State-owned
river beds in such counties.
It is our opinion that the Legislature lawfully granted to
the Parks and Wildlife Commission in House Bill No. 169 the discre-
tionary power to regulate the taking of game animals, game birds or
fur-bearing animals by providing the means, method and place and the
manner in which s~uch wildlife resources may be lawfully taken in
Dimmit, Uvalde and Zavala Counties. The question of the abuse of
such discretion, if any, by the Parks and Wildlife Commission is not,
nor can it be, before us.. Such matters can only be decided by the
Courts of the State.
In addition, as noted above, consent of the owner of the
land must be obtained prior to the use of lands for the purpose of
taking game. It has been the long-established rule in Texas that the
State owns the soil underlying navigable streams, whether navigable
in fact or by statute. Grayburg Oil Co. v. Giles, 143 Tex. 497, 501,
186 S.W.2d 680 (1945); Landry,v.
--_-~_ ------IRobison 110 Tex. 295, 298, 219 S.‘v’+‘.
819 (1920); State
--- of Texas v. Bradford, 121 Tex. 515, 530, 544, 50
S.W.Zd 1065 (1932); Diversion Lake Club v. Heath, 126 Tex. 129, 138,
86 S.W.Zd 441 (1935); Heard v. Refugio, 129 Tex. 349, 359-360, 103
S.W.Zd 728 (1937); Lorino v. Crawford Packing Co., 142 Tex. 51, 56-
57, 175 S.W.2d 410 (1943); _Chicago, R.I. & G. Ry. v. Tarrant County
W. C. & I. Dist. No. 1, 123 Tex. 432, 446, 73 S.W.2d 55 (1934); Mau-
frais v. State of Texas, 142 Tex. 559, 566, 180 S.W.Zd 144 (1944). As
noted above, the State, as owner of such lands, has refused its con-
sent to the taking of wild animals upon such property.
SUMMARY
--
The Parks and Wildlife Commission has
the lawful right in the interest of game preser-
vation to prohibit the hunting and taking of deer
upon the state-owned dry river beds of Dimmit,
Uvalde, and Zavala Counties, pG;rsuant to H. B.
159, Acts 57th Legislature, Regular Session, Chap-
ter 99, page 186. The question of the abuse of such
-1655-
-.
Honorable R. S. Crawford, Jr., Page 3 (C-348)
discretion, if any, by the Parks and Wildlife
Commission is not, nor can it be, before US.
Such matters can only be decided by the Courts
of the State.
Respectfully submitted,
WAGGONER CARR
Attorney General of Texas
By:
Assistant Attorney General
CBS/lb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chariman
Brady Coleman
Pat Bailey
George BlRck
3. C. Davis
APPROVED FOR THE ATTORNEY GENERAL
BY: Roger Tyler
-1656-