Untitled Texas Attorney General Opinion ( 1945 )

^ .
Honorable H. E. Faubion
Assistant Executive Secretary
Game, Fish and Oyster Commission
Austin, Texas
Dear Sir: Opinion NO. o-6936
Re: Whether Articles 480a and 1377,
V.A.P.C., are game laws and re-
lated questions.
We have received your letter of November 15, 1945,
which Is quoted below:
"1 . Is Article 1377, Penal Code, 1925, a
'game law' the enforcement of which is the duty
of the game, Fish and Oyster Commission as well
as other officers?
"2. If you answer the first question in the
negative, then is the Game, Fish and Oyster Com-
mission authorized to collect the arresting officer's
fee when an arrest is made for violation of Article
1377, P. C. 1925 by a game and fish warden and
place such fee to the credit of the Department fund
in the State Treasury?
“3 . Is Article 48Oa, P. C. 1925, providing
'Any person who shoots or discharges any gun,
pistol or firearm in, on, along or across any
public road in this State shall be fined not more
than One Hundred Dollars,' a 'game law' the en-
forcement of which is the duty of the Game, Fish
and Oyster Commission as well as other officers?
"4 . If your answer to the third question Is
in the negative, then is the Game, Fish and Oyster
Commisslon authorized to collect the arresting
officer's fee when an arrest is made for violation
of Article 48Oa, P. C. 1925 by a game and fish war-
den, and place such fee to the credit of Department
funds in the State Treasury?"
As specifically deslgnated In Article 4018, V.A.C.S,‘8
and Articles 905 and 978f of the Penal Code, It is the duty and
Honorable H. E. Faubion - nage 2 o-6936
obligation of the Game, Fish and Oyster Commission to enforce
laws for the protection and preservation of game, wild bird3
and fish. Such laws relating to the preservation of game are
generally referred to as "game laws" and are adequately describ-
ed by the Georgia Court of Appeals in the case of Poulos v.
State (174 S.E. 253) In the following language:
"'Game laws' is a title commonly used to
describe a series of statutes, which have not
a loglcally connected design, but of which the
general aim is to protect from unauthorized pur-
suit and killing certain birds and animals ferae
na'curaewhich are fit for human food. Bouvier's
Law Dictionary. Black's Law Dictionary defined
them to be 'Laws passed for the preservation of
game. They usually forbid the killing of speci-
fied game during certain seasons.'"~
The most recent official revision of the Criminal
Statutes of this State took place In 1925, when, at the Regular
Session of the Thirty-Ninth Legislature, the Penal Code of Texas
was officially adopted. At that time, Article 1377 was placed
in Chapter Three entitled "Malicious Mischief" under Title 17
of the Code, labeled "Offenses Against Property." Whereas in
the entirely separate dLvislon of the Code, namely, Chapter
Six entitled "Game, Fish and Oysters" under Title 13, "Offenses
Against Public Property," the statutes known as game laws, as
welI as others pertaining to the duties and authority of the
Commission, were listed. The arrangement of the statutes in
such manner, although not a controlling consideration, was
indicative of the Legislative intent to exclude Article 1377
from the laws relating to game. 59 C. J. 1101; Sutherland
on Statutory Constructlon, Vol. 2, p. 390.
The above Article was amended twice by Acts 1929, 41st
Legislature, once in the First Called Session and again in the
Second Called Session, and it presently reads as follows:
"Article 1377. Entering inclosed land to
hunt or fish.
"Whoever shall enter upon the lnclosed land of
another without the consent of the owner, proprietor
or agent in charge thereof, and therein hunt with fire-
arms or thereon catch or take or attempt to catch OP
take any fish from any pond, lake, tank or stream, or
In any manner depredate upon the same shall be guilty
of a misdemeanor, and upon conviction thereof, shall
be fined any sum not less than $10.00 nor more than
$200.00 and by a forfeiture of his hunting license
Honorable Ii.E. Faublon - naae 7. o-6916
and the right to hunt in the State of Texas for a
period of one year from the date of his conviction.
By 'inclosed lands' is meant such lands as are in
use for agriculture or grazing purpose3 or for any
other purpose, and inclosed by any structure for
fencing either of wood or iron or combination there-
of, or wood and wire, or partly by water or stream,
canyon, brush, rock or rocks, bluffs or island.
Proof of ownership or lease may be made by parol
testimony. Provided, however, that this Act shall
not apply to inclosed lands which are rented or
leased for hunting or fishing or camping privileges
where the owner, proprietor, or agent in charge or
any person for him by any and every means has re-
ceived or contracted to receive more than twenty-
five cents per acre per year or any part of a year
for such hunting fishing or camping privileges, or
where more than $4.00 per day per person Is charged
for such hunting, fishing or camping privileges.
And provided further that this exemption shall exist
for a period of one year from the date of the re-
ceipt of such sum or sums of money.
"Sec. 2. Any person found.upon the inclosed lands
of another without the owner's consent, shall be sub-
ject to arrest by any peace officer, and such arrest
may be made without warrant of arrest. '(As amended
Acts 1929 41st Leg., 1st C.S., p. 242, ch. 100
Acts, 1929: 41st Leg., 2nd C.S., p. 41, ch. 26.)'
The emergency clause of the Act amending Article 1377,
enacted by the First Called Session, casts some light upon its
purpose and is set out below:
"Sec. 4. The fact that there is now no law pro-
viding for an adequate protection of the owners of
farms and ranches on the one hand and the hunters on
the other, the first from unjust depredations by un-
scrupulous hunters and the second from unfair and ex-
orbitant rental charges, creates an emergency and an
imperative public necessity and demands that the Con-
stitutional Rule requiring bills to be read on three
several days be suspended, and that this Act take ef-
fect from the date of its assage, an;3;tci; hereby
z;.e;;;tyd.' [Acts 1929, !lst Leg,, . ', p. 242,
.
The Article was again amended by the Second Called Session be-
cause it was feared the prior amendment might be construed to
include the amount received by the owners of land for grazing
Honorable H. E. Faubion - page 4
purposes to be within the twenty-five cents per acre, this
reason being specifically stated in the emergency clause of
the Act of that session.
Thus it is observed that originally and throughout
the amendments to Article 1377, the Legislature was concerned
with the protection of the private property ownersagainst
trespass. By the very words of the Article, it has no appli-
cation to lands rented or leased by the owner for hunting,
fishing or camping privileges for a specified amount. There
is no language in the Article nor in any amendments thereto
which indicate that the Legislature intended It as a provision
for game preservation, and consequently It is our belief that
Article 1377 is not a "game law" as that term has been defined.
Your inquiry with respect to Article 480a of the Penal
Code is adequately answered by a former opinion of this office
wherein it was held that Article 480a was not intended as a
'(provisionof the game laws of this State." Said Opinion No.
O-4318, written to~the Honorable P. W. Minter, County Attorney
of Jim Hogg County, ana dated January 21, 1942, is attached
hereto for your information.
Having disposed of your questions relating to the
identity and nature of Articles 1377 and 480, V.A.P.C., we
proceed to your questions regarding the authority of a game
and fish warden to collect the arresting officers's fee which
is placed to the credit of the Department Fund in the State
Treasury when and if he should make an arrest for violation
of the said Articles.
It might appear that Section 2 of Article 1377, supra,
which reads "any person found upon the inclosed lands. . .
shall be subject to arrest by any peace officer, and such ar-
rest may be made without warrant of arrest" authorizes a game
warden to make such an arrest. But that is not the case as
game wardens have not been legally endowed with the general
authority of the ordinary peace officer in this State, although
they have substantial enforcement powers within their own en-
forcement field.
We have carefully reviewed all statutes, including
Articles 212 - 217, Code of Criminal Procedure, pertaining to
arrests without a warrant, Article 218 et seq. of said Code,
pertaining to arrests under warrant, Articles 905 906, 978f,
Vernon's Penal Code, and Articles 4018, 4021, 4024 of the Re-
vised Civil Statutes, pertaining to the powers and duties of
Deputy Game and Fish Wardens, and have been unable to find any
statute authorizing such deputies to arrest either with or with-
out a warrant, a person who violates either Article 480a or
Article 1377, V.A.P.C.
Honorable H. E. Faubion - page 5 o-6916
As we have found that a Deputy Game and Fish Warden
has no authority to arrest for violations~of Articles 1377 and
480a, V.A.P.C., then it follows that he cannot collect an ar-
resting fee for such an arrest.
Consequently, we answer each and all of your ques-
tions in the negative and trust that this opinion will prove
to be of some assistance to you.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Jack K; Ayer
Jack R. Ayer
Assistant
JKA:zd:wc
APPROVED JAN 30, 1946
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman