Untitled Texas Attorney General Opinion ( 1963 )

E,XAS
January 24, 1963
Hon. Bill Hollowell Opinion No. C- 5
Chairman
Housetial Investigating Fler Whether, under the provls-
Committee ions of Article 893 of
Capitol Station Vernon's Penal Code,
Austin, Texas Justice Courts have juris-
diction to try persons
charged with violations
of Texas Game and Fish
Dear Sir8 Laws and related question.
We have reoelved and carefully considered your
requeat for an opinion upon the following questions:
1. “Under Article 893 of the Penal Code
and under the Constitution of Texas, the com-
mittee would like to know If Justice Courts
in Texas have juslsdlotion to try those charged
with violation of Texas Fish and Game Laws,”
2. “Under Article 893 mentioned above is
it mandatory that the court or jury decide
whe%her to forfeit or restore a license when a
case is disposed of by them.”
Section 1 of Article 893, Vernon’s Penal Code,
provides:
“Any person charged in any court in
this State with an offense of violating
any law which it ia the duty of the Game
and Fish Commissi~onto enforce shall have
the right to have the court or jury before
which said person is tried either to for-
%othe license of said person so charged
restore said license to said person
so charged for the remainder of the license
period. me court shall so state in its
judument whether or not the license of
said Derson Is revoked or whether or not
Bald nerson shall retain samet" (Bmphasls
arlnari
-----, 1
Hon. Bill Hollowell, Page 2 (C-5 )
In Ex Darte A J. Morris, 325 S.W.2d 386 (Tex.
Crlm. 1959) the Court held that the Justice Court was with-
out jurisdiction to try a person under a statute, making It
unlawful to enter the lnclosed land to hunt or fish, which
provided as the maximum punishment a fine of not more than
$200 and forfeiture of hunting license and right to hunt
for one year, because punishment u,nderthe statute was not
limited to a fine of $200.00.
Article V. Section 19 of the Constitution of Texas,
reads as follows:
"Justices of the Peace shall have
jurisdiction in criminal matters of all
cases where the penalty or fine to be
ImDosed bv law mav not be more than for
two hundred dollars . , . 11. (Emphasis
added)
Article 60 of Vernon's Code of Criminal Procedure
provides that Justices of the Peace shall have Jurisdiction
in criminal cases where "the fine to be imposed by law may not
exceed two hundred dollars." Under the wording of the
Constitution and statute, jurisdiction of the Justice of the
peace rests solely on the fine to be Imposed by law not
exceeding $200.00.
It should be noted that in defining the jurisdiction
of corporation courts and concurrent jurisdiction of justices
of the Pease, Article 62, Vernon's Code of Criminal Procedure,
provides, s . . $n which Dunishment Is be fine only, and
where the maximum of such fine may not exceed two hundred
dollars. . .'
In ,Bx varte ROY Howard, .34'7
S.W.2d 721 (Tex. Crlm.
1961) held where the punishment for the violation of the
statute the defendant was charged with violating (Article 910
Vernon's Penal.Code) was by a fine of not less than $50.00
nor more than $200.00 and the forfeiture of hunting license,
that the justice court had no jurisdiction.
The Court went on,to say:
“Artble 5, Section 19 of the Texas
Constitution, Vernon's Annotated Statutes,
limits the criminal jurisdiction of the
Justice Courts to offenses where the
punishment which may be assessed is by
a fine only, not to exceed $200.'
-lb
-
Hon. Bill Hollowell, Page 3 (C- 5 )
In answer to your first question, It Is our opin-
ion that the Justice Courts do not have jurisdiction to try
those persons charged with violating any law which It is the
duty of the Game and Fish Commission to enforce in those
cases wherein Section 1 of Article 893, Vernon's Penal Code
apply.
'We now consider your second question. Prior to
the 1953 amendment Article 893 read In part as follows:
"Any person convicted of violating any
provision of the game laws of this state shall
thereby automatlcallv forfeit his license for
said season. . .r (Emphasis Added)
The right to hunt was automatically forfeited by a violation
of such laws and a conviction of the defendant under said law.
The statute did not confer upon the court the authority to
forfeit the defendant's right to hunt, and the inclusion of
such provisions in the udgment was of no 'effect. Galloway
v. State* 69 S.W.2d 89 Tex.Crlm. 1933).
After the 1953 amendment, Section 1 of Article 893,
Vef;;;is Penal Code, read as above statedon page 1 of this
It is stated in 26 Tex. Jur. XI 533, Game and
Game lak, Section 10 that:
"Formerly a conviction of violating any
provision of the game laws automatically for-
fekted the license of the convicted person,
" and he could not obtain another for a specl-
fled period. Under the present law, however,
any person charged with violating any law that
It is the duty of the Game and Fish Commission
to enforce has the rlzht to have a court or
jury decision on the question of forfeiture and
of restoration of license." (Emphasis added)
Sections 4 and 5 of the Act amending Article 893
reads in part as follows:
"Sec. 4. All laws, OP parts of laws,
local, general or special, are hereby repealed
to the extent that they ponfllct with any
provision of this Act.
"Sec. 5. The fact that such licenses
are now automatically forfeited on a vlola-
tlon of any hunting and fishing law without
- .
Hon. Bill Hollowell, Page 4 (C-5 )
allowing same to be at the discretion of the
court, creates an emergency. . .II
(Emphasis added) Acts 53rd Leg. R.S. 1953,
Ch. 5, p.11.
This further Illustrates that the Legislature
Intended to repeal the automatic forfeiture of licenses,
that existed prior to the 1953 amendment, and give the trial
courts the discretion of determining whether the license
should be forfeited.
Construing the question of the forfeiture, the
Court In the case of Ex parte A. J. Morris, suora, said:
"It,Is apparent that the amended Article
893,V.A.P.C. . . . specifically provides that
the forfeiture of the hunting license of the
defendant is for the court or,,juryand e be
provided for in the judgment. (Emphasis
added)
It Is therefore our opinion that when a person is
convicted In such cases in a court of competent jurisdiction
it is mandatory upon the court or jury to decide whether
to forfeit or restore his license and provide for same in
the judgment.
SUMMARY
1. The Justice Courtis without juris-
diction to try a person charged with the
violation of any law which it is the duty of
the Game and Fish Commission to enforce, in
those cases wherein the provisions of Section
1 of Article 893, Vernon's Penal Code are
applicable.
2. When a person is convicted In such cases
In a court of competent jurisdiction it is
mandatory upon the court or jury to decide
whether to forfeit or restore his license and
provide for same in the judgment.
Yours very truly,.
WAGGONER CARR
Attorney General of Texas
Hon. Bill Hollowell, Pais 5 (C-5 1
By&/a
Gilbert J. Pe a
Assistant Attorney General
GJP:cjs
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Cha%rman
Norman Suarez
Bill Allen
Joseph Trlmble
John Reeves
REVIEWED FOR THJ3ATTORNEY GENERAL
By: Stanton Stone
APPROVED:
Waggoner Carr