Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Hon. Joab Campbell County Attorney, SohleloherOounty Eldorado, Taxae /\ Dear Sir: Opinion Eo. O-1538 A\ RiB: It3 it neceeesry la ooaTlotioa under sea. &&&$`` This till aoknowl 43 eooi t 0 your inquiry a0 stated above. 0 Wequote the Aot under ~mm- sldaratlonr It ie our opinion that thilrlrtatutaia neverable. The firat portion thereof prohibits the hunting or shoot- ing of migratory bird8 or @me birde with *a ahotguu larger than teqT(qaageand that IB oapable or holding mere than three shc?$s at one leading", etc. She next~alaued, Ron. Joab Caepbsll, page Z *and providing that li a magmslae-loadinggun is used and the magazine of suoh guo uould otherwisehold more than two (2) shells, berore suoh gus is used it shall be permanentlyplugged', eto., provides another dls- tInct ntstutory prohibition. In other rords, It is mede unlawful 'to hunt or shoot mourning doves, *bite-wingeddoves, or sny ri- gratory bird, or any other game blrd o? this State tithe a si:otgunlarger than ten-gauge and that is oapable of holding more than three (3) shells at on8 loading, In- eluding the ahell that may be held In the ohamber of suoh gun- whether said gun la a mngaslne-loadluggun or not. It 18 rurther mdo unlawful to use an Qsgaslne- loading* gun which has not been properly-I? p wed in oomFlIancewith the statute. It is also our opinion that it would bs neoss- Bary to allege snd prove use of a ps or shotgus larger than ten-gauge for suocesatulproseeutlonOS say offend- er not using a -asine-loading* gun but mah allega- tion and proof would not be esaentlal If saoh a Wagaalae- loading* gun be used. In examlnlng the entire Aot of whlob Seotlon 4 -of Art1018 WQa-4.18 a part (B.B. 51, oh. 19, p. 1889, Aots 45th Leg., Bd C.S.) we find reference In the amer- genoy clause; asme being 3eo. 9 of the bill, to tbs Federal regulationsand the Inteut of the Legls~ture to avoid oonfliot tberewlth 18 apparent. We point out that Regulation 3 of the United states DeparvAentof the Interior mrcau of BlologIoal Surrey reads a8 followa: WRegulations3.- Keotisby v&job migratory game birds may be teken. *The raigratorygame birds on whioh opas Bea- soas are speolfied in Regulation 4 ,ofthese reguu- lations may be taken during suoh reBpeotI+BOpSn seasons with bow and error or with a shotgua not larger than No. 10 gauge fired from the shoulder, exoept as permitted by regulations9,8,9 and 10 oi these regulations,but ther shal.1not be tsksn Hon. Joab CmpSeI.1, pane S with or by means of any automatlo-loadingor bend-operatedrepeetln6shotgun capable of hold- ing more than three BbellB, the magazine of whloh has not been out oft or plug@ with a one-piecemetal or wooden rlller lnoapableof removal through the loading end 'thereor,so as to reduce tho capsoityof eaid gun to not more than three shells at one time in the magazine and ohamber oomblned:l t + * 4nBwarB Trusting that the above'satisfaotorily your ln~ulry, we are YOUrB very truly