Untitled Texas Attorney General Opinion

.
E EWE
0eT~xAs
Mr. H. D. Dodgen Opinion No. C-71
Executive Secretary
Game and Fish Commission Re: Whether certain practices of
Austin, Texas landowners charging a set fee
for each deer killed on his
remises violated Articles
884 and 923, Vernon's Penal
Dear Mr. Dodgen: Code.
You have requested an opinion of this office on the ques-
tion whether certain described practices are violations of
Article 884, Vernon's Penal Code, Article 923h, Vernon's Penal
Code, the Colorado County Statute, Chapter 7, Acts 57th Legis-
lature First Called Session 1961, the Kendall County Statute,
Chapter 356, Acts 57th Legislature, Regular Session 1961, and
the Tarrant County Statute, Chapter 12, Acts 56th Legislature
Regular Session 1959. The practices you set out in your let-
ter are as follows:
"1. A landowner offers to permit hunters
to kill deer on his premises and charges the
hunter a set fee for each deer which is killed.
"2. The money Is paid before the hunt,
and if no deer is killed the money is refunded.
“3. The landowner has received from the
Game and Fish Commission antlerless and/or doe
deer hunting permits which he then advertises
for sale at a set fee to hunters who kill a doe
on his premises."
Article 884, Vernon's Penal Code, provides:
"It shall be unlawful for any person to
sell or offer for sale, or'to buy or offer to
buy, or to have in possession for sale, or to
have in possession after purchase has been
made (either by himself or by another) any wild
bird, wild fowl, wild game bird or wild game
animal, dead or alive, or any part thereof,
protected by this Chapter, except deer hides
and except as hereinafter provided. This
-346~
Mr. H. D. Dodgen, Page 2 (C-71 )
Article and all other articles In this Chap-
ter shall apply to any bird or animal coming
from without this state; and in prosecution
for violation of this Chapter, It shall be
no defense that such bird or animal was not
taken or killed within this state.
"It shall be further unlawful to bring
into this state for any purpose whatever,
during the closed season or time when it is
unlawful to possess such bird or animal, dead
or alive, any kind of bird or animal protected
by this Chapter, except as hereinafter pro-
vided."
We do not believe the practices you have outlined violate
this section of the Penal Code. As we understand the practices,
the landowner, who holds the antlerless deer or doe permit, is
not selling any deer. He Is selling the right to hunt on his
property. This he has the right to do under any conditions he
sees fit so lon as he violates no law. Anderson v. Glpson,
144 S.W.2d 948 yTex.Civ.App. 1940).
Article 923h, Vernon's Penal Code, provides as follows:
"Whoever shall sell or offer for sale, or
have in his possession after purchase, any wild
deer, wild antelope or rocky mountain sheep
killed In this state, or the carcass, hide or
antlers of wild antelope or rocky mountain
sheep, or the carcass or antlers of wild deer,
shall be fined not less than ten dollars ( lO.OO),
nor more than one hundred dollars ($100.00f
but It shall be lawful to sell deer hides 0;
to possess deer hides after sale."
For the reasons stated in answering the first part of your
question we see no violation of Article 923h In the practices
outlined above.
We will now discuss the Tarrant County, Colorado County
and Kendall County statutes which have been selected by you,
we understand, because they are representative of the statutes
now in force In this state covering regulated counties on this
subject.
The Tarrant County Statute, Section 6, Chapter 12, Acts
of the 56th Legislature Regular Session, provides as follows:
-347-
Mr. H. D. Dodgen, Page 3 (C-71 )
"The Game and Fish Commlsslonls procla-
mation, rule or regulation permitting the
hunting or taking of antlerless deer shall
not be valid until the owner or person In
charge of the land upon which antlerless deer
are to be taken shall have agreed in writing
to the removal of such antlerless deer from
his tract under supervision and regulation
of said commission; and to the number of ant-
lerless deer which may be removed therefrom.
No person shall, in any event, hunt or kill
any antlerless deer without first having
procurred an antlerless deer permit issued
by the Game and Fish Commission. Such ant-
lerless deer permits shall be Issued in such
form and under such rules as may be prescribed
by the Game and Fish Commission."
Proclamation No. G-14 of the Game and Fish Commission covers
the rules prescribed by the Game and Fish Commission for antler-
less deer permits in Tarrant County. It provides In part as fol-
lows:
"Regulations for Issuing antlerless and/or
doe deer hunting permits: the Game and Fish
Commission shall issue antlerless and/or doe
deer hunting permits for designated areas only
to bona fide landowners or their authorized
agents only after said landowner or agents
have applied in writing for the exact number
of permits to be used. Said landowners or
agents shall then Issue permits to individual
hunters only after hunters have bagged an ant-
lerless and/or doe deer on the area designated
for the individual permit."
First it should be pointed out that the quoted section
from the proclamation is inconsistent with the statute because
the statute requires that no person can kill any antlerless
deer "without first having procurred an antlerless deer permit
Issued by the Game and Fish Commission," while the proclama-
tion requires the permits to be Issued to individual hunters
"only after hunters have bagged an antlerless or doe deer."
In so far as the proclamation Is Inconsistent with the statute
in this regard, it is void. The antlerless and/or doe deer
permits must be issued to individual hunters, under the statutes,
before the hunt or kill of the animal. We understand that all
antlerless and/or doe deer permits are issued with the following
-34a-
Mr. H. D. Dodgen, Page 4 (C-71 )
language printed upon them "not to be transferred or sold." The
language of the third paragraph of the practices outlined lndi-
cates that the landowner advertises these permits "for sale at
a set fee to hunters who kill a doe on his premises." We, there-
fore, believe that the landowner has violated the terms of the
permit and the policy of the department signified by the words
"not to be transferred or sold." The form of the permit and the
rules under which it Is issued are within the province of the
Game and Fish Commission. It Is, therefore, our opinion that
the practices you outline would be a violation of the statute
and policy of the Game and Fish Commission.
The Colorado County Statute, Section 6 of Chapter 7, 57th
Legislature First Called Session, provides as follows:
"Section 6. The Game and Fish Commission's
proclamation, rule or regulation permitting the
hunting or taking of the antlerless and/or doe
deer shall not be valid until the owner, or per-
son in charge of the land upon which the antler-
less and/or doe deer are to be taken, shall have
agreed In writing to the removal by hunting of
such antlerless and/or doe deer from his tract
under supervision and regulation of said commis-
sion, and to the number of antlerless and/or doe
deer which may be removed therefrom. No person
shall, In any event, hunt or kill any antlerless
and/or doe deer without procurrlng an antlerless
and/or doe deer permit Issued by the Game and
Fish Commission. Upon the face of such permit
shall be printed these words: 'Not to be trans-
ferred or sold.' It shall be unlawful to sell
any such permit and any person convicted of
selling such permit shall be punished as pro-
vided in Section 13 hereof."
The language in Proclamation No. H-9 of the Game and Fish
Commission Is the same as the quoted language from Proclama-
tion No. G-14 above and we hold for the same reasons that so
much of Proclamation No. H-9 as allows the antlerless and/or
doe deer to be killed without procurring a permit Is void for
reasons already expressed; and we also hold that the practices
you set out are unlawful as being in violation of the statutes
and the policy of the Game and Fish Commission as explained
above.
Section 6 of Chapter 356, Acts 1961, 57th Legislature Re-
gular Session, referring to Kendall County, provides as follows:
-349-
Mr. H. D. Dodgen, Page 5 (C-71 )
"The Game and Fish Commission's rule,
regulation or order permitting the hunting
or taking of antlerless deer shall not be
valid until the owner, or person in charge,
of the land upon which antlerless deer are
to be taken, shall have agreed in writing
to the removal by hunting of such antlerless
deer from his tract under supervision and
regulation of said Commission and to the
number of such antlerless deer which may be
removed therefrom. No person shall, in any
event, hunt or kill any antlerless deer wlth-
out first having procured an antlerless deer
permit issued by the Game and Fish Commission.
Such antlerless deer permit shall be issued
In such form and under such rules as may be
prescribed by the Game and Fish Commission.
Further, it shall be unlawful for any person
to sell any permit that he has received from
the Game and Fish Commission for the hunting
and taking of antlerless deer if payment for
such permit by the purchaser is contingent
upon the purchaser killing and taking such
antlerless deer, or If, when such sale is
made and payment received, retention of pur-
chase price by the seller Is contingent upon
the purchaser killing and taking such antler-
less deer."
The language in Proclamation No. A-15 of the Game and Fish
Commission Is the same as the quoted language from Proclamation
No. G-14 above and we hold for the same reasons that so much of
Proclamation No. A-15 as allows the antlerless and/or doe deer
to be killed without procurrlng a permit is void for reasons al-
ready expressed; and we also hold that the practices you set out
are unlawful as being in violation of the statutes and the poli-
cy of the Game and Fish Commission as set out above.
SUMMARY
A landowner may allow the use of his land
for hunting purposes contingent upon a success-
ful hunt, such success being measured at a speci-
fic price for each deer, the price being paid In
advance and refunded if the hunter does not kill
a deer. A landowner who advertises an antlerless
and/or doe deer permit for sale at a set fee to
hunters who kill an antlerless and/or doe deer on
his premises, receiving the fee in advance and
-350-
Mr. H. D. Dodgen, Page 6 (C-71 )
returning the fee If no deer Is killed Is
violating Section 6 of Acts 57th Leg. 1 C.S.,
Chapter 7; Section 6 of Acts 57th Leg., Chap-
ter 356; and Section 6 of Acts 56th Leg.,
Chapter 12. So much of Game and Fish Pro-
clamations, 1962-1963 as amended, No. G-14,
No. H-9 and No. A-15 as would allow an antler-
less and/or doe deer to be bagged before an
antlerless and/or doe deer permit Is Issued
are void.
Yours very truly,
CARR
General of TAxas
ByNo!t??-kki . w
Assistant Attorne General
NVS:nss
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Sam R. Wilson
John Reeves
J. Albert Pruett
APPROVRD'FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-351-