# 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 ofthe State of Texas for investigation, propagation, distribution, or scientific purposes. You have requested an opinion as towhether employees ofthe Parks and Wildlife Department are required by law to obtain apermit totake, transport, release, manage, or otherwise handle fish andwildlife species ofthis State for investigation, propagation, distribution, or scientific purposes. The issuance ofpermits by the Parks and Wildlife Department for the taking ofprotected wildlife and fish is governed by Article 913 ofVernon’s Texas Penal Code. Section 1empowers 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 inwhich permits are to be granted (5l), restrictions concerning certain wildlife (5 51and la), the duration ofthe permitted use (52), and conduct required ofthe holde,r together with specific penalties for misconduct (5 $ 4, 6,’ and 7). All ofthese are ofthe nature of mandatory requirements once the Department has exercised its discretion inissuing apermit:

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

Incontrast 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 apermit holder, taking and possessing protected species:

“Sec. 3: The Parks and Wildlife Department may prescribe reasonable rules and regulations concerning the taking andpossession ofprotected 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 tohandle 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 ofthe 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 ofthe State’s wildlife and fishing laws, includes both the holder of aParks and Wildlife Department permit and an employee ofthat Department, clearly indicating that the employee handling wildlife for scientific purposes need not be apermit holder.

“Sec. 6: It shall be no defense in any prosecution for violation of any ofthe wildlife or fishing laws ofthis state that the taking or transporting ofwildlife or fish was done for scientific purposes unless such defense is offered onbehalf of aperson holding a Parks and Wildlife Department permit which was valid at the time ofthe alleged offense, or onbehalf of an employee ofthe Parks and Wildlife Department acting within the scope ofhis 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.heDepartment is authorized to make under $3 andwhich also govern the permit holder. Coupled with the comprehensive grant of authority tohandle wildlife in $5and 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, 5and 6ofArticle 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 andwildlife species ofthe 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