Untitled Texas Attorney General Opinion ( 1975 )

October 2. 1975
The Honorable Bennie Bock II Opinion No. H- 705
Chairman, Liquor Regulation Committee
House of Representatives Re: Whether alligators may
P. 0. Box 2910, Capitol Station be sold in Texas.
Austin, Texas
Dear Representative Bock:
As Chairman of the Liquor Regulation Committee, you have requested
our opinion concerning whether a person who has raised alligators for
twenty-five years may lawfully sell them. You have indicated that the
request is within the jurisdiction of the Committee and is asked on its
behalf. You note that article 978j-3; Penal Auxilary Laws, which pro-
hibited the sale of alligators after January 1. 1970, was repealed by
Senate Bill 179 of the 64th Legislature. Acts 1975, 64th Leg., ch. 219.
p. 561. However, alligators have been designated by the Parks and
Wildlife Department as an endangered species and are therefore protected
by sections 43.021, et seq. and 68.001, & sx. ,Parks and Wildlife Code.
(All references to sections are to the Parks and Wildlife Code unless
otherwise noted. )
Section 68.015(a) provides:
No person may possess, sell, distribute, or offer
or advertise for sale endangered fish or wildlife unless
the fish or wildlife have been lawfully born and raised
in captivity for commercial purposes under the pro-
visions of this chapter or federal law.
Section 68.007 provides:
No person may possess endangered fish or wildlife
for the purpose of propagating them for sale unless he
has first acquired a commercial propagation permit
issued by the department under this chapter.
p. 3048
The Honorable Bennie Bock II, page 2 (H-705)
Thus, as a general matter, a person may sell only those alligators
which have been lawfully born and raised in captivity. Additionally, a
person may not lawfully propagate an endangered species for commercial
purposes unless he obtains a commercial propagation permit.
However, section 68.020 provides in part:
(a) This chapter does not apply to:
. . .
(6) animals, fish, or fowl that are privately owned
or to the management or taking of privately owned
animals, fish, or fowl by the private owners.
In our view this exemption is ambiguous. We do not believe that the
Legislature intended to exempt all privately owned animals from the pro-
visions of chapter ~68 without regard to when they became privately owned.
Were section 68.020(a)(6) construed so broadly, once a person lawfully
obtains an animal of an endangered species under section 68.006 and the
animal thus becomes privately owned, no permit would be necessary for
commercial propagation. Such a construction would renders the permit
provisions of section 68.007 almost entirely fruitless, for a permit would
be required for only the propagation of publicly owned animals. The courts
will not construe a statute so as to render it “fruitless, futile, meaningless,
purposeless, or useless, if the language can be otherwise construed.” 53
Tex. Jur. Zd, Statutes, $165 and authorities cited therein.
Accordingly, in our opinion the Legislature intended section 68.020(a)(6)
to constitute a grandfather cl.ause which exempts only those animals which
were privately owned when that section original,ly took effect, or August 27,
1973. See, Acts 1973. 63rd Leg., ch. 126, pa 268, formerly codified as
article 913a, Penal Auxilary ,Laws. In addition, we believe the exemption
is personal and relates only to the owner at that time. Prior to August 27,
1973, these exempted animals could have been sold, managed, or taken by
their owner without a permit and without regard to whether they were born
and raised in captivity. However, these privately owned animals may not
be utilized for commercial propagation subsequent to August 27, 1973,
without a commercial propagation permit. In addition, protected animals
taken from the wild after August 27, 1973. may not be sold. Sec. 68. 015(a);
E. sec. 43.021, et seq., regarding the legal capture of protected animals:
see also sec. 61.021.
p. 3049
. -
The Honorable Bennie Bock II, page 3 (H-705)
In our opinion a person may lawfully sell alligators which he privately
owned prior to August 27, 1973. Alligators which were not privately owned
prior to August 27, 1973. may not be sold unless they were born and raised
pursuant to a commercial propagation permit or under authority of federal
law. We do not consider the effect of federal legislation prohibiting the
interstate sale of endangered species. See, 16 U.S. C. § 1538; but see, pro-
posed Dept. of Int. Reg. 40 Fed. Reg., no. 131, p. 28712 (1975).
SUMMARY
A person may lawfully sell alligators which he
privately owned prior to August 27, 1973. Alligators
which were not privately owned prior to August 27,
1973, may not be sold unless they were born and
raised in captivity pursuant to a commercial propagation
permit or under authority of federal law.
Attorney Gem ral of Texas
//
APPROVED: u
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 3050