Untitled Texas Attorney General Opinion ( 1963 )

TEZEATTORNEYGENEEAL
QFTEXAS
Hon. H. D. Dodgen OPINION No. c-36
Executive Secretary
Game and Fish Commission Re: Whether, in hunting and
Austin, Texas fishing ,violationsunder
,circumstanceswhich do not
require-thepossession of a
license, charges must be
filed in courts other than
Dear Mr. Dodgen: the justice courts.
You have requested our opinion on the following question:
"In hunting or fishing violations-undercircumstanceswhich
do not require possession of a license, must charges be filed
in other than justice courts?"
Section 1, of Article 893, Vernon's Penal Code, provides:
"Any
r person charged in any court in this
State with an offense of,violatingany law
which it is the,duty of the Game and Fish
Commission to eaforc,eshallhave the right
to have the court or jury before which said
person is tried either to forfeit the license
of said person~so charged or to restore,said
license to said person so charged for the
remainder of the license period. The court
shall so state in its judgment whether or not
the license of,said person is revoked or
whetheror not said person shall retain same."
It is clear from the above quoted provision that a
license is subject to be forfeited by the court whenever a
person is charged with a violation of "any law which it is the
duty of the Game and Fish Commissionto enforce'!,if the person
so charged possesses a license, irrespectiveof,whether the
hunting or ,fishingviolationswere undercircumstances which
do not require possession of a license. It is elementarythat
the court cannot forfeit a non-existantlicense.
- -
Hon. H. D. Dodgen, Page 2 (OpinionNo. C-36)
It has long been establishedthat even though the per-~
missible fine does not exceed Two Hundred ($200.00)Dollars,
jurisdictionof the justice of the peace would not exist where
an alternativeor cumulative form of penalty,couldbe imposed.
In Tuttle v. State, 1 Tex. App. 364, Judge White said:
"Imprisonmentin the county jail cannot
be estimated in dollars, nor c,anit be
considered in any manner .apecuniary fine:
It follows, therefore, .,. . that whenever,
in misdemeanors,imprisonmentmay be assessed
,as an alternative,orpart of the'fine to
be imposed, justice courts have no
jurisdiction . . .'I
It is well establishedthat a justice court does not
have jurisdictionwhere the nunishmentmav include a.forfeiture
of hu&ing or~fishinglicens;, Ex Parte A: J.~Morris,~,325 S.W.2d
386 (Tex.Crim.19591, and Ex Parte Roy,Hotiard, 347 S.W.2d 721
(Tex.Cri.m.,1961).
Attorney General's Opinion C-5, (19651, a copy of which
is enclosed, held that the justice courts,@o not have juris-
diction to try those persons charged with violations,wherein
Section 1, of ,Article893, Texas Penal Code, applies, because
that section makes forfeiture of the license an additional per-
missible punishment to be included in the judgment.
You are therefore advised that in every case of a viola-
tion of 'Ianylaw" which it is the duty of the Game and Fish
Commissionto enforce;if the person charged possesses a hunt-
ing or fishing license, same may be forfeited. In such-cases
the justice courts do not have jurisdictionto try same, but
the county court would have jurisdiction. If the person so
charged does not possess a hunting or fishing licZ?nse,the
justice courts have jurisdictionto try same in ail cases where
the punishment is by,fine not exceeding Two Hundred ($200.00)
Dollars.
SUMMARY
In every case of a violation of "any
law" which it is the duty of the Game and
Fish Commissionto enforce, if the person
charged possesses a hunting or fishing
license, same may be forfeited. In such
cases the justice courts do not have juris-
-P52-
Hon, H. D. Dodgen, Page 3 (OpinionNo. C-36)
diction to try same, but the county court
would have
. . jurisdiction. If the person so
cnarged does not possess a bunting or fish-
ing license, the justice courts
- have juris-
.
diction to try same in all cases where the
punishment provided is b fine not exceed-
ing Two Hundred ($200.007 Dollars.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
*Gilbert J. Pena
Assistant Attorney General
GJP:hd
APPROVED:
OPINION COMMITTEE:
W. V. GeDDert. Chairman
Murray Jordan-
Scott Garrison
Samuel Strong Pharr
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
By: Stanton Stone
APPROVED:
Waggoner Carr
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