THE AYETCBRNEB~ GENERAL 

OF XAS 

Honorable J. R. Singleton 

Executive Director 

opinion No. M-444 

Parks and Wildlife 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 enforcement personnel of the 

Parks and Wildlife DepartDear Mr. Singleton: ment? 

You have requested an opinion from this office 

concerning the authority of Parks and Wildlife law 

enforcement personnel to enforce the pertinent provisions of H.B. No. 957, Act 1969, 61st Leg. R.S., 

Ch. 260, p. 767, which became effective May 27, 1969, 

and reads in part, 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 a misdemeanor and subject to a fine 

of not less than $25 nor more than $200. Any 

person violating Section 1 of this Act, who 

shall take fish of a value in excess 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 not more than 10 years." 

The Game, Fish and Oyster Commission was specifically 

charged with the duty and obligation to enforce laws for 

the protection and preservation of wild game, wild birds, 

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Honorable J. R. Singleton, Page 2, (M-444) 

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 the present Parks and Wildlife Department by Article 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 the game and fish laws, and 

such other enforcement au hority as may be specifically 

delegated to them by law. i However, they are not classified as "peace officers," as defined in Article 2.12,, 

Vernon's Code of Criminal Procedure, and consequently, 

they are not clothed with the general enforcement 

authority of ordinary peace officers in this State. 

House Bill No. 957 does not specifically authorize 

enforcement of its provisions by the Department or its 

personnel, therefore, the immediate question is whether 

the Act is a "game or fish law" such as would regularly 

be enforceable by the Department. 

Fish are classified as animals ferae naturae, that 

gT;h 

there is no individual property inld animals or 

so long as they remain wild, unconfined, and in a 

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 the benefit of all its inhabitants, 

11 R.C.L. 1015; and, while ownership is in the sovereign, 

it is well established that the State has the power and 

authority to enact laws for their conservation and propagation. Sterrett v. Gibson, 168 S.W. 16 (Tex.Civ.App. 

1914, no writ): 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). 

1 An example of such additional authority is Art. 1722a, 

V.P.C., concerning enforcement of the Texas Water Safety 

Act. 

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Honorable J. R. Singleton, Page 3, (M-444) 

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 in Jones v. State, supra, it has been clear 

that "it was not the legislative intent to place 

restrictions on the owner's control over fishing in 

privately owned ponds, as distinguished from fresh 

water streams and lakes as defined in Article 926 of 

the Penal Code." 45 S.W.2d 614, 615. 

Inasmuch as the game and fish laws are inapplicable 

to fishing in private ponds, it logically follows that 

the Parks and Wildlife Department would have no enforcement authority in relation 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, in part, as follows: 

"Sec. 2. Definitions: 

"(a) A 'Fish Farmer' is any person, firm 

or corporation engaged in the business of 

production, propagation, transportation, possession and sale of fish except fish propagated 

for bait purposes, raised in private ponds or 

reservoirs. 

" b) 'Private Ponds' are defined as ponds 

or reservoirs located wholly 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.) 

In view of the foregoing definitions, it is abundantly 

clear that House Bill No. 957 only creates criminal offenses 

and provides punishments relating to the theft of personal 

property as distinguished from the taking of public property 

from public waters. 

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Honorable J. R. Singleton, Page 4, (M&444) 

Therefore, House Bill No. 957 does 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 and Wildlife Department or its personnel, 

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 a person who is violating 

the provisions of H.B. 957, if the offense is Gcnmnitted 

in their presence, or within 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 of public property from public 

waters; and in the absence of specific delegation of authority by the Legislature to the 

Parks and Wildlife Department or its personnel, 

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 a person who is violating 

the provisions of H.B. 957, if the offense is 

committed in their presence, or within 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. 

Ver 

eneral of Texas 

Prepared by Monroe 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 

Tom Mack 

Milton Richardson 

Ronald Luna 

Robert Darden 

HAWTHORNE PHILLIPS 

Executive Assistant 

W. V. GEPPERT 

Staff Legal Assistant 

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