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Mr. H. D. Dodgen OpinionNo. C-71 Executive Secretary Game and Fish Commission Re: Whether certainpractices of Austin, Texas landowners charginga set fee for each deer killed on his

8remisesviolated Articles 84 and 923,Vernon's Penal Dear Mr. Dodgen: Code.

You have requestedan opinion of this office on the questionwhether certain describedpractices are violations of Article 884, Vernon's Penal Code, Article 923h,Vernon's Penal Code, the Colorado County Statute, Chapter 7, Acts 57th LegislatureFirst 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 practicesyou set out in your letter are as follows:

"1. A landowneroffers to permit hunters to kill deer on his premises and charges the hunter a set fee for each deerwhich is killed.

"2. The money Is paid before the hunt, and if no deer is killed themoney is refunded.
“3. The landownerhas received from the Game and Fish Commissionantlerless and/or doe deer hunting permitswhich he then advertises for sale at a set fee to hunterswho kill a doe
on his premises."
Article 884, Vernon's Penal Code, provides:

"It shallbe unlawful for any person to sell or offer for sale, or'tobuy or offer to buy, or to have in possession for sale, or to have in possession after purchase has been made (eitherby himself or by another) any wild bird, wild fowl,wild game bird or wild game animal, dead or alive, or any part thereof, protectedby this Chapter, except deer hides and except as hereinafterprovided. This

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Article and all other articles In this Chapter shall apply to any bird or animal coming fromwithout this state; and in prosecution for violation of this Chapter, It shallbe no defense that suchbird or animalwas not taken or killed within this state.

"It shallbe furtherunlawful to bring into this state for any purposewhatever, during the closed season or timewhen it is unlawful to possess suchbird or animal, dead
or alive, any kind of bird or animal protected by this Chapter, vided." except as hereinafterproWe do not believe the practicesyou have outlinedviolate this section of the Penal Code. As we understand thepractices, the landowner,who holds the antlerlessdeer 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 conditionshe
sees fit so lon as he violates no law. 144 S.W.2d 948yTex.Civ.App. 1940). Andersonv. Glpson,

Article 923h,Vernon's Penal Code, provides as follows:
"Whoever shall sell or offer for sale, or have in his possession after purchase, anywild deer,wild antelope or rockymountain sheep killed In this state, or the carcass,hide or antlers of wild antelope or rockymountain sheep, or the carcass or antlers of wild deer, shall be fined not less than ten dollars ( ($100.00

flO.OO),
nor more than one hundred dollars but It shallbe lawful to sell deer hides 0; to possess deer hides after sale."

For the reasons stated in answering the first part of your questionwe see no violation of Article 923h In the practices outlined above.

We will now discuss the Tarrant County, Colorado County and Kendall County statuteswhich have been selectedby you, we understand, because they are representativeof 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 LegislatureRegular Session,provides as follows:

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"The Game and Fish Commlsslonlsproclamation, rule or regulationpermitting the hunting or taking of antlerlessdeer shall not be valid until the owner or person In charge of the landupon which antlerlessdeer
are to be taken shall have agreed inwriting to the removal of such antlerlessdeer from his tractunder supervisionand regulation of said commission;and to the number of **ant** lerlessdeer whichmay be removed therefrom. No person shall, in any event, hunt or kill any antlerlessdeerwithout first having procurred an antlerlessdeer permit issued by the Game and Fish Commission. Such antlerless deer permits shallbe Issued in such form and under such rules asmay be prescribed by the Game and Fish Commission."
ProclamationNo. G-14 of the Game and Fish Commission covers the rules prescribedby the Game and Fish Commission for antlerless deer permits in Tarrant County. It provides In part as follows: "Regulations for Issuing antlerless and/or doe deer huntingpermits: the Game and Fish Commission shall issue antlerless and/or doe deer hunting permits for designated areas only to bona fide landownersor their authorized agents only after said landowneror agents have applied in **writing** for the exact number of permits to be used. Said landowners or agents shall then Issuepermits to individual hunters only after hunters have bagged an antlerless and/or doe deer on the area designated for the individualpermit."
First it shouldbe pointed out that the quoted section from the proclamation is inconsistentwith the statutebecause the statute requires that no person can kill any antlerless deer "without first havingprocurred an antlerlessdeer permit Issuedby the Game and Fish Commission,"while the proclamation requires the permits to be Issued to individualhunters "only after hunters have bagged an antlerless or doe deer." In so far as the proclamation Is Inconsistentwith the statute in this regard, it is void. The antlerless and/or doe deer permitsmust be issued to individualhunters,under the statutes, before the hunt or kill of the animal. We understand that all antlerlessand/or doe deer permits are issuedwith the following

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languageprinted upon them "not to be transferredor sold." The language of the third paragraph of the practices outlined lndicates that the landowner advertises thesepermits "for sale at a set fee to hunterswho kill a doe on his premises." We, therefore, believe that the landownerhas violated the terms of the permit and the policy of the department signifiedby thewords "not to be transferredor sold." The form of the permit and the rulesunder which it Is issued are within the province of the Game and Fish Commission. It Is, therefore, our opinion that the practicesyou outlinewould be a violation of the statute and policy of the Game and Fish Commission.

The Colorado County Statute, Section 6 of Chapter 7, 57th LegislatureFirst Called Session, provides as follows:

"Section 6. The Game and Fish Commission's proclamation, rule or regulationpermitting the hunting or taking of the antlerless and/or doe deer shallnot be valid until the owner, or person in charge of the landupon which the antlerless and/or doe deer are to be taken, shall have agreed In writing to the removalby hunting of such antlerless and/or doe deer from his tract under supervisionand regulation of said commission, and to the number of antlerlessand/or doe deerwhich may be removed therefrom. No person shall, In any event, hunt or kill any antlerless and/or doe deerwithout procurrlng an antlerless and/or doe deer permit Issuedby the Game and Fish Commission. Upon the face of such permit shall be printed thesewords: 'Notto be transferred or sold.' It shallbe unlawful to sell any suchpermit and any person convictedof selling such permit shallbe punished as provided in Section 13 hereof."

The language in ProclamationNo. H-9 of the Game and Fish Commission Is the same as the quoted language from ProclamationNo. G-14 above andwe hold for the same reasons that so much of ProclamationNo. 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 thepractices 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 Regular Session, referring to Kendall County,provides as follows:

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"The Game and Fish Commission'srule, regulation or order permitting thehunting
or taking of antlerlessdeer shallnot be valid until the owner, or person in charge, of the landupon which antlerlessdeer are to be taken, shallhave agreed inwriting to the removalby hunting of such antlerless deer from his tractunder supervisionand regulation of said Commission and to the number of such antlerlessdeer whichmay be removed therefrom. No person shall, in any event, hunt or kill any antlerlessdeerwlthout first having procured an antlerlessdeer permit issuedby the Game and Fish Commission. Such antlerless deer permit shallbe issued In such form and under such rules asmay be prescribedby the Game and Fish Commission. Further, it shallbe unlawful for any person to sell any permit that he has received from the Game and Fish Commission for the hunting and taking of antlerlessdeer if payment for such permit by the purchaser is contingent upon the purchaserkilling and taking such antlerless deer, or If,when such sale is made and payment received, retention of purchase price by the seller Is contingentupon the purchaser killing and taking such antlerless deer."

The language in ProclamationNo. 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 somuch of ProclamationNo. A-15 as allows the antlerless and/or doe deer to be killed without procurrlng a permit is void for reasons already expressed; and we also hold that the practicesyou set out are unlawful as being in violation of the statutes and the policy of the Game and Fish Commission as set out above.

SUMMARY

A landownermay allow the use of his land for huntingpurposes contingentupon a successful hunt, such successbeingmeasured at a specific price for each deer, the price being paid In advance and refunded if the hunter does not kill
a deer. A landownerwho advertises an antlerless and/or doe deer permit for sale at a set fee to hunterswho kill an antlerlessand/or doe deer on his premises, receiving the fee in advance and

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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., Chapter 356; and Section 6 of Acts 56th Leg., Chapter 12. So much of Game and Fish Proclamations, 1962-1963as amended,No. G-14, No. H-9 and No. A-15 as would allow an antlerless 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

. AssistantAttorne General

NVS:nss

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Sam R. Wilson John Reeves J. Albert Pruett

APPROVRD'FORTHE ATTORNEY GENERAL BY: Stanton Stone

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