### THE AYETCBRNEB~ GENERAL OF XAS

Honorable J. R. Singleton Executive Director opinion No. M-444
Parks andWildlife Department Re: Whether the provisions Austin, Texas 70701 of H.B. No. 957,Acts 1969, 61st Leg. R.S., Ch. 260, p. 767,may be enforced by law **enforce** ment personnel of the Parks andWildlife DepartDear Mr. Singleton: ment?
You have requested an opinion from this office concerning the authority of Parks andWildlife law enforcement personnel to enforce thepertinent provisions of H.B. No. 957,Act 1969, 61st Leg. R.S., Ch. 260,p. 767,which became effective May 27, 1969, and reads inpart, as follows:

"Section 1. It shall be unlawful for **any** person, other than the **owner** or operator thereof, to fish or to take any fish from any fish farm, except with the consent of the owner or operator thereof.
"Sec. 2. Any person violating Section 1 hereof, shall upon conviction thereof, be guilty of amisdemeanor and subject to a fine of not less than $25 normore than $200. Any person violating Section 1of thisAct, who shall take fish of avalue inexcess of $200 from any such fish farm shall upon conviction thereof, be guilty of a felony and punished by imprisonment in the state penitentiary for a term of notmore than 10years." The Game, Fish andOyster Commission was specifically charged with theduty and obligation to enforce laws for the protection andpreservation ofwild game, wild birds,

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and fish. Articles 905, 906, 978,Vernon's Penal Code, Article 4018,Vernon's Civil Statutes. That commission was abolished by Article 978f-3, Vernon's Penal Code, Acts 1951, 52nd Leg., Ch. 476,p. 850,but all its powers; duties and functions were thereby vested in the Game and Fish Commission which was subsequently reconstituted as thepresent Parks andWildlife Department byArticle 978f-3a, Vernon's Penal Code, Acts 1963, 58th Leg., Ch. 58,p. 104.
Enforcement personnel of the Parks **and** Wildlife Department have substantial powers within their **own** field as established by thegame and fish laws, **and** such other enforcement auhority asmay be specifically delegated to themby law.i However, they are not classified as "peace officers," asdefined inArticle 2.12,, Vernon's Code ofCriminal Procedure, and consequently, they are not clothed with the general enforcement authority of ordinary peace officers in this State.
House Bill No. 957does not specifically authorize enforcement of itsprovisions by theDepartment or its personnel, therefore, the immediate question iswhether theAct is a "gameor fish law" such aswould regularly be enforceable by the Department. Fish are classified as animals ferae naturae, that gT;hthere is no individual property inld animals or so long as they remain wild, unconfined, and ina state of nature. Jones v. State, 45 S.W.2d 612 (Tex. Crim. 1932). While they are at freedom their ownership is in the State for thebenefit of all its inhabitants, 11R.C.L. 1015; and, while ownership is **in** the **sovereign,** it iswell established that the State has thepower **and** authority toenact laws for their conservation andpropagation. Sterrett v. Gibson, 168 S.W. 16 (Tex.Civ.App. 1914, nowrit): Poon v.Miller, 234 S.W. 573 (Tex.Civ.App. 1921, **no** writ); Taylor Fishing Club v. Hammett, 88 S.W.Zd 127 (Tex.Civ.App. 1935, error dism.); 11 R.C.L. 1041; see Attorney General's Opinion No. O-2343 (1940).

1An example of such additional authority isArt. 1722a, V.P.C., concerning enforcement of the Texas Water Safety Act.

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However, when wild animals, or fish, are legally removed from their natural liberty and **made** subjects of man's dominion, they become personal property with title
**no** longer in the **sovereign. Since**  the decision was **rendered** inJones v. State, supra, ithas been clear that "itwas **not** the legislative intent toplace restrictions on the owner's control over fishing in privately owned ponds, as distinguished from fresh water streams and lakes asdefined inArticle 926 of the Penal Code." 45 S.W.2d 614, 615.
Inasmuch as the **game** and fish laws are inapplicable to fishing inprivate ponds, it logically follows that the Parks andWildlife Department would have **no** enforcement authority inrelation thereto, in the absence of specific delegation of such authority.
House Bill No. 733,Acts 1969, 61st Leg. R.S., Ch. 298, p. 884,provides for the licensing of "fish farms" and reads, inpart, as follows:

"Sec. 2. Definitions: "(a) A 'FishFarmer' is **any** person, **firm** or corporation **engaged** in thebusiness of production, propagation, transportation, possession and sale of fish except fish propagated forbait purposes, raised inprivate ponds or reservoirs.

"b) 'Private Ponds' aredefined asponds or reservoirs locatedwholly within the enclosed lands of an owner or lessor which is not connected to **any** stream **carrying** public waters nor subject to overflow from **any** public waters." (Emphasis supplied.)

Inview of the foregoing definitions, it is abundantly clear that House Bill **No.** 957only creates criminal offenses **and** provides punishments relating to the theft ofpersonal property asdistinguished from the taking of public property from public waters.

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Therefore, House Bill No. 957does not constitute a "game or fish" law in the common **sense;** and **in** the absence of a specific delegation of authority by the Legislature to the Parks andWildlife Department or itspersonnel, enforcement of the same lies solely within the general authority conferred upon the regular peace officers of this State. However, the personnel of the Parks **and** Wildlife Department **may** arrest aperson who isviolating the provisions of H.B. 957, if the offense isGcnmnitted in their presence, orwithin their view, and fish of a value **in** excess of $200.00 is taken from a fish **farm,** or **in** connection therewith an offense against the public peace is committed. Article 14.01, V.C.C.P.
SUMMARY
House Bill No. 957,Acts 1969, 61st Leg. R.S., Ch. 260,p. 767, relates to the theft **of** personal property, as distinguished from the taking ofpublic property from public waters; and **in** the absence of specific delegation of authority by the Legislature to the Parks andWildlife Department or itspersonnel, enforcement of the same lies solely within the general authority conferred upon the regular peace officers of this State. However, the personnel of the Parks andWildlife Department **may** arrest aperson who is **violating** theprovisions of H.B. 957, if the offense is committed in their presence, orwithin their view, and fish of avalue **in** excess of $200:00 is taken from a fish farm, or **in** connection therewith **an** offense **against** the public peace is committed. Article 14.01, V.C.C.P.
Ver

eneral of Texas Prepared byMonroe Clayton Assistant Attorney **General**

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Honorable J. R. Singleton, Page 5, (M-444)

APPROVED:
OPINION COMMITTEE: **Kerns** TBylor, Chairman George Kelton, Vice-Chairman TomMack Milton Richardson Ronald Luna Robert Darden
HAWTHORNE PHILLIPS Executive Assistant
W. V. GEPPERT Staff Legal Assistant

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