Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERAL
OF TEXAS
AUSTIN, T-E 78711
February 13, 1974
The Honorable Clayton T. Garrison Opinion No. H- 228
Texas Parks & Wildlife Department
John H. Reagan Building Re: Authority of deputy game
Austin, Texas 78701 wardens
Dear Mr; Garrison:
You have asked three questions involving the interpretation of
Article 978f-5f, Vernon’s Texas Penal Code Auxiliary Laws, which
provides:
“Section 1. The Executive Director of the
Parks and Wildlife Department may commission
deputy game wardens to serve at the will of the
Executive Director. The Parks and Wildlife
Commission is authorized to promulgate all
necessary rules and regulations to govern the
qualifications, conduct and duties of such wardens
when commis sioned.
“Sec. 2. A person commissioned under the
provisions of Section 1 of this Act is authorized to
enforce the laws of this state relating to hunting
and fishing, and to the preservation and conservation
of wildlife and marine animals, The Parks and
Wildlife Department shall prescribe the geographical
area in which a deputy game warden shall operate.
“Sec. 3. Prior to entry upon duty and
simultaneously with his appointment, a deputy
game warden shall file an oath and bond in the
amount of Two Thousand Dollars ($2,000) payable
to the Parks and Wildlife Department.
p. 1063
The Honorable Clayton T. Garrison, page 2 (H-228)
“Sec. 4. Such deputy game wardens when
commissioned, shall serve without compensation
from the State of Texas, but the Parks and Wildlife
Department is authorized to expend whatever funds
necessary to support and maintain this responsibility. ”
Your first question is:
“Does a Deputy Game Warden commissioned
by authority of Article 978f-5f Vernon’s Texas
Penal Code have authority to make an arrest without
a warrant and carry a sidearm (handgun) while per-
forming his assigned law enforcement duties? ”
-Section 46.03, Vernon’s Texas Penal Code, indicates that a handgun
may be carried lawfully by a person
“(I) in the actual discharge of his official duties
as a peace officer, a member of the armed forces or
national guard, or a guard employed by a penal
’institution;
“(2) on his own premises or premises under
his control;
“(3) traveling; or
“(4) engaging in lawful hunting or fishing or
other lawful sporting activity. ”
A deputy game warden may carry a handgun under enumerations (2), (3)
and (4) of 5 46.03 without regard to any official status he may have by
virtue of his commission. Attorney General Opinion H-185 (1973). How-
ever, appointment as a deputy game warden permits a person to carry a
handgun only if a deputy game warden is a peace officer. Article 2.12,
Vernon’s Texas Code of Criminal Procedure,lists as peace officers:
p. 1064
The Honorable Clayton T. Garrison, page 3 (H-228)
“(,l) sheriffs and their deputies;
“(2) constables and deputy constables;
” . . . .
“(8) any private person specially appointed
to execute criminal process;
..
. . . .
“(11) game management officers commis-
sioned by the Parks and Wildlife Commission; , . . ,. ”
The only authority of the Parks and Wildlife Commission to commission
its personnel, whether “game wardens” or “game management officers, ”
as peace officers and the authority of those so commissioned are set out
in Article 978f-5c, Vernon’s Texas Penal Code Auxiliary Laws:
“The Executive Director of the Parks and
Wildlife Department, in order to insure the adequate
enforcement of all laws in state parks and in state
historical sites under the jurisdiction of the Parks
and Wildlife Department, is authorized to commission
as peace officers any of the employees provided for
under the General Appropriation Bill; and when so
commissioned, said employees are vested withal1
of the powers, privileges, and immunities of peace
officers while on state parks or on state historical
sites or in fresh pursuit of those violating the law in
such state parks or state historical sites. (Emphasis
added)
Since Article 978f-5f, supra, specifies that the deputy game wardens
which the Executive Director may commission “shall serve without compen-
sation from the State of Texas, ” it is apparent that they are not “employees
provided for under the General Appropriations Bill” as required by Article
p. 1065
The Honorable Clayton T. Garrison, page 4 (H-228)
978f-5c, supra, and may not be commissioned as peace officers. For
the same reasons, we do not believe they can be considered peace officers
under Article 2.12, Vernon’s Texas Code of Criminal Procedure, except
when they are specially appointed to execute criminal process. See
Attorney General Opinion H-167 (1973). Our view is supported by the
Legislature’s failure to list deputy game wardens in its definition of
I’peace officer” as it listed deputy sheriffs and deputy constables.
Our view is further supported by the Legislature’s amendment of
the bill which later became Article 978f-51. The bill, as introduced,
spoke of commissioning persons as peace officers, while the amendments
omitted every one of several provisions of the bill specifically designating
deputy game wardens as peace officers. See House Journal, 63rd Leg.,
R.S., p. 829 (Feb. 27, 1973), Ibid, at pp. 3337-8 (May 10, 1973); Senate
Journal, 63rd Leg., R. S., pp. 1025-7 (May 8, 1973); also see the copy of
the bill as introduced on file in the Legislative Reference Library. There-
fore, it is our opinion that deputy game wardens are not peace officers
and~are not authorized to carry handguns by virtue of their commissions.
Deputy game wardens are authorized “to enforce the laws of this
State relating to hunting and fishing, and to the preservation and c.onser-
vation of wildlife and marine animals. ” The Executive Director of the
Parks and Wildlife Department has similar duties, Artic,le 906, Vernon’s
Texas Penal Code Auxiliary Laws, and to the extent that deputy game
wardens are charged with assisting the Executive Director in fulfilling
his responsibility to enforce the game laws, they are his deputies. As
such their power to make arrests is set out in Article 905, Vernon’s Texas
Penal Code Auxiliary Laws, which provides in part that:
“[The Executive Director] or any of his deputies
may arrest without a warrant any person found by
them in the act of violating any of the laws for the
protection and propagation of game, wild birds or
fish, and take such person forthwith before a magis-
trate having jurisdiction. Such arrests may be made
on Sunday, and in which case the person arrested
shall be taken before a magistrate having jurisdiction,
and proceeded against as soon as may be, on a week
day following the arrest. ”
p. 1066
The Honorable Clayton T. Garrison, page 5 (H-228)
Therefore our answer to your first question is that a deputy game
warden may make an arrest without a warrant if he discovers a person
in the act of violating a game law, but that his commission does not
authorize him to carry a handgun. See also Article 914, Vernon’s Texas
Penal Code Auxiliary Laws.
Your second question is:
“Can a Deputy Game Warden commissioned
by authority of Article 978f-5f, Vernon’s Texas Penal
Code [Auxiliary Laws] be certified as a reserve officer
by the Commission on Law Enforcement Standards
and Education after completing the educational require-
ments specified by Article 4413(29aa) Vernon’s Texas
Civil Statutes? ”
Article 4413(29aa), $2A, V. T. C. S., gives the Commission on Law
Enforcement Officer Standards and Education the responsibility of estab-
lishing minimum standards for reserve law enforcement officers. The
same Legislature which enacted 5 2A of Article 4413(29aa) estab~lished three
types of reserve officers. They are reserve policemen. of cities, towns
or villages (Article 998a, V. T. C.S.); reserve deputy sheriffs and reserve
deputy constables (Article 6869.1, V. T. C. S.). We have found nothing in
Article 978f-5f or any other, statute to indicate that deputy game wardens
are reserve law enforcement officers. Therefore, it is our conclusion
that deputy game wardens do not qualify for certification as reserve officers.
Your third question is:
“Is a Deputy Game Warden commissioned by
authority of Article 978f-5f Vernon’s Texas Penal
Code authorized to sign and file a trespass complaint
for a violation of Article 1377b Vernon’s Texas Penal
Code if he is the landowner’s authorized agent? ”
Article 1377b of the former penal code has been repealed. To the
extent that the provisions of that Article are retained in the new Penal
Code, they are found in § 30.05, which provides in part:
p. 1067
The Honorable Clayton T. Garrison, page 6 (H-228)
“(a) A person commits an offense if he enters
or remains on property or in a building of another
without effective consent and he:
“(I) had notice that the entry was forbid-
den,; or I
:
“(2) received notice to depart but failed
to do so.” ’
Article 137713 was much more specific and applied only to entry on enclosed
lands for the purpose of hunting, fishing or camping. Section 4 specifically
gave game wardens the authority to arrest violators of the Article. The
predecessor statute to Article 1377b. Article 1377, did notcontain specific
provisions granting enforcement authority to game wardens. This office
has held that that statute was a law to protect ,landowners rather than a
game law and that game wardens had no authority to arrest a violator of
the statute. Attorney General Opinion O-6936 (1946). As the specific grant
of enforcement authority contained in Article 1377b has been repealed, we
can find no authority for a deputy game warden to enforce the provisions
of 5 30.05, Vernon’s Texas Penal Code, other than those he enjoys as a -
private citizen. However, as a private citizen, he is authorized to sign
and file a complaint, Article 15.05, Vernon’s Texas Code of Criminal Pro-
cedure.
SUMMARY
A deputy game warden commissioned under
Article 978f-5f, V. T. P. C. Auxiliary Laws, is autho-
rized to arrest, without warrant, violators of the
game laws, but his commission provides him no
authority to carry a handgun. Deputy wardens are
not entitled to be certified as reserve law enforcement
officers and enjoy no authority,, other than that of a
private citizen, to enforce the criminal trespass laws,
Attorney General of Texas
p. 1068
The Honorable Clayton T. Garrison, page 7 (H-228)
Opinion Committee
. .
p. 1069