HE AXTORNEY GENE 

OFTEXAS 

JOHN L. BILL Amwrm. TEXAS 78711 

Ax-rORNEY CIIENsR*L 

August 2, 1973 

The Honorable Clayton Garrison 

Executive Director, Texas Parks & 

Wildlife Department 

John H. Reagan Building 

Austin, Texas 78701 

Dear Mr. Garrison: 

Opinion No. H- 78 

Re: Whether personnel employed 

by the Parks and Wildlife 

Department must be issued 

permits of authorization in 

order that they may take, 

transport, release, manage; 

or otherwise, handle fish and 

wildlife species of the State of 

Texas for investigation, propagation, distribution, or 

scientific purposes. 

You have requested an opinion as to whether employees of the Parks and 

Wildlife Department are required by law to obtain a permit to take, transport, 

release, manage, or otherwise handle fish and wildlife species of this State 

for investigation, propagation, distribution, or scientific purposes. 

The issuance of permits by the Parks and Wildlife Department for the 

taking of protected wildlife and fish is governed by Article 913 of Vernon’s 

Texas Penal Code. Section 1 empowers the Department to allow “qualified 

persons to take protected wildlife and fish for propagation, zoological 

gardens or scientific purposes. ” 

The Legislature, through Article 913, V. T. P. C., has further prescribed 

the manner in which permits are to be granted (5 l), restrictions concerning 

certain wildlife (5 5 1 and la), the duration of the permitted use (5 2), and 

conduct required of the holde,r together with specific penalties for misconduct 

(5 $ 4, 6,’ and 7). All of these are of the nature of mandatory requirements 

once the Department has exercised its discretion in issuing a permit: 

“Permits may be granted upon application 

made under oath indicating the particular species 

and purpose of collection ” $1, Article 913, 

V. T. P. C. (Emphasis added) 

p. 354 
The Honorable Clayton T. Garrison, page 2. (H-78) 

In contrast to the above provisions restricting the issuance and use 

of permits, the Parks and Wildlife Department is granted extensive power 

to regulate the conduct of anyone, including a permit holder, taking and 

possessing protected species: 

“Sec. 3: The Parks and Wildlife Department 

may prescribe reasonable rules and regulations 

concerning the taking and possession of protected 

wildlife species indigenous to the State of Texas or 

fish indigenous to the State of Texas for scientific 

purposes, zoological gardens, and for propagation 

purposes. Said department may cancel any permit 

granted pursuant to this Act for violation of such 

rules and regulations. ‘I (Emphasis added) 

Further, the Department may not only set its own rules and regulations 

but also is vested with comprehensive authority to handle the State’s 

wildlife and fish: 

“Sec. 5: The Parks and Wildlife Department 

at all times shall have the power to take, transport, 

release, or manage any of the wildlife and fish of 

this state for investigation, propagation, distribution 

or scientific purposes. ” (Emphasis added) 

Finally, § 6, in describing those who are exempted from prosecution for 

violation of the State’s wildlife and fishing laws, includes both the holder 

of a Parks and Wildlife Department permit and an employee of that Department, clearly indicating that the employee handling wildlife for scientific 

purposes need not be a permit holder. 

“Sec. 6: It shall be no defense in any 

prosecution for violation of any of the wildlife 

or fishing laws of this state that the taking or 

transporting of wildlife or fish was done for 

scientific purposes unless such defense is 

offered on behalf of a person holding a Parks 

and Wildlife Department permit which was 

valid at the time of the alleged offense, or 

on behalf of an employee of the Parks and 

Wildlife Department acting within the scope 

of his authority. ” (Emphasis added) 

p. 355 
.- 

The Honorable Clayton Garrison, page 3 (H-78) 

The scope of an employee’s authority would be defined by the rules 

and regulations which t.he Department is authorized to make under $ 3 

and which also govern the permit holder. Coupled with the comprehensive grant of authority to handle wildlife in $ 5 and the defense to 

prosecution in § 6, this indicates that Parks and Wildlife Department 

personnel may perform their assigned duties without first obtaining 

permits of authorization. 

SUMMARY 

Sections 3, 5 and 6 of Article 913, Texas 

Penal Code, indicate that personnel employed by 

the Texas Parks and Wildlife Department need 

not obtain permits authorizing them to take, transport, release, manage or otherwise handle fish 

and wildlife species of the State of Texas for 

investigation, propagation, distribution or scientific purposes. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 356