Untitled Texas Attorney General Opinion ( 1973 )

April 16, 1973
The Honorable Clayton T. Garrison Opinion No. H- 30
Executive Director of the Texas
Parks and Wildlife Department Re: Is the multi-colored
John H. Reagan Building feral pigeon a variety
Austin, Texas 78701 of wild pigeon within
the meaning of Article
872 of the Texas Penal
Dear Mr. Garrison: Code?
In your recent letter to this office you requested a formal opinion
on the following question: .Is the multi-colored feral pigeon a variety
of wild pigeon within the meaning of Article 872 of the Texas Penal
Code?
Article 872, Vernon’s Texas Penal Code, as amended in 1961
provides as follows:
“Wild, turkey, .wild ducks of all varieties,
wild geese of all varieties, wild brant, wild
grouse, wild prairie chickens or pinnated grouse,
wild pheasants of all varieties, wild partirdge
and wild quail of all varieties, wild pigeons of
all varieties, wild mourning doves and wild
white-winged doves, wild snipe of all varieties,
wild shore birds of all varieties, wild Mexican
pheasants or chachalacas, wild plover of all
varieties, and wild sand-hill cranes, are hereby
declared to be game birds within the meaning ,..
of this Act. I’
Clearly all varieties of wild pigeon are within the language of
Article 872, and if the multi-colored ferdl pigeon is a wild pigeon,
then it is within that statute.
p. 127
The Honorable Clayton T. Garrison, page 2 (H-30)
Webster’s Third New International Dictionary (1961) defines
“feral” as “having escaped from domestication and become wild”.
It would therefore appear that the multi-colored feral pigeon is
a wild creature within the scope of Article 872.
There are no Texas cases on this question. In the Missouri
case of State v. Willers, 130 S.W.2d 256 (Mo.App. 1939) the
defendant was convicted of having killed pigeons without a permit.
The birds shot were the “common every&y pigeon”, and the
question was whether they were within the protected class of “the ,
columbae, commonly known as doves and pigeons”. The Court
concluded that they were within the order Columbae, and that
“it at once becomes manifest that the pigeons of this region
in the feral state fall within the protection of the statute”.
Although the Texas statute does not use the biological name,
it does, as does tk Missouri statute, protect only wild birds,
and includes within that protection wild pigeons of all varieties.
It is therefore our opinion that feral pigeons are within the scope
of Article 872, V. T. P. C.
Since, by definition, feral pigeons are wild pigeons, the statute
does not protect domesticated pigeons, such are bred and raised
by farmers, for table consumption, sometimes classified as
poultry. State v. Willers. supra.
“Feral” refers to a state rather than a breed. Therefore,
multi-colored feral pigeons are within the scope of the statute.
The multi-colored feral pigeon is a variety
of wild pigeon within the meaning of Article 872,
Vernon’s Texas Penal Code.
::
Very truly yours,
Attorney General of Texas
p. 128
The Honorable Clayton T. Garrison, page 3 (H-30)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 129