. 

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Mr. H. D. Dodgen Opinion No. C-71 

Executive Secretary 

Game and Fish Commission Re: Whether certain practices of 

Austin, Texas landowners charging a set fee 

for each deer killed on his 

8 

remises violated Articles 

84 and 923, Vernon's Penal 

Dear Mr. Dodgen: Code. 

You have requested an opinion of this office on the question whether certain described practices are violations of 

Article 884, Vernon's Penal Code, Article 923h, Vernon's Penal 

Code, the Colorado County Statute, Chapter 7, Acts 57th Legislature First 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 practices you set out in your letter are as follows: 

"1. A landowner offers to permit hunters 

to kill deer on his premises and charges the 

hunter a set fee for each deer which is killed. 

"2. The money Is paid before the hunt, 

and if no deer is killed the money is refunded. 

“3. The landowner has received from the 

Game and Fish Commission antlerless and/or doe 

deer hunting permits which he then advertises 

for sale at a set fee to hunters who kill a doe 

on his premises." 

Article 884, Vernon's Penal Code, provides: 

"It shall be unlawful for any person to 

sell or offer for sale, or'to buy or offer to 

buy, or to have in possession for sale, or to 

have in possession after purchase has been 

made (either by himself or by another) any wild 

bird, wild fowl, wild game bird or wild game 

animal, dead or alive, or any part thereof, 

protected by this Chapter, except deer hides 

and except as hereinafter provided. This 

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Mr. H. D. Dodgen, Page 2 (C-71 ) 

Article and all other articles In this Chapter shall apply to any bird or animal coming 

from without this state; and in prosecution 

for violation of this Chapter, It shall be 

no defense that such bird or animal was not 

taken or killed within this state. 

"It shall be further unlawful to bring 

into this state for any purpose whatever, 

during the closed season or time when it is 

unlawful to possess such bird or animal, dead 

or alive, any kind of bird or animal protected 

by this Chapter, 

vided." 

except as hereinafter proWe do not believe the practices you have outlined violate 

this section of the Penal Code. As we understand the practices, 

the landowner, who holds the antlerless deer 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 conditions he 

sees fit so lon as he violates no law. 

144 S.W.2d 948 yTex.Civ.App. 1940). 

Anderson v. Glpson, 

Article 923h, Vernon's Penal Code, provides as follows: 

"Whoever shall sell or offer for sale, or 

have in his possession after purchase, any wild 

deer, wild antelope or rocky mountain sheep 

killed In this state, or the carcass, hide or 

antlers of wild antelope or rocky mountain 

sheep, or the carcass or antlers of wild deer, 

shall be fined not less than ten dollars ( 

($100.00 f 

lO.OO), 

nor more than one hundred dollars 

but It shall be lawful to sell deer hides 0; 

to possess deer hides after sale." 

For the reasons stated in answering the first part of your 

question we see no violation of Article 923h In the practices 

outlined above. 

We will now discuss the Tarrant County, Colorado County 

and Kendall County statutes which have been selected by you, 

we understand, because they are representative of 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 Legislature Regular Session, provides as follows: 

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Mr. H. D. Dodgen, Page 3 (C-71 ) 

"The Game and Fish Commlsslonls proclamation, rule or regulation permitting the 

hunting or taking of antlerless deer shall 

not be valid until the owner or person In 

charge of the land upon which antlerless deer 

are to be taken shall have agreed in writing 

to the removal of such antlerless deer from 

his tract under supervision and regulation 

of said commission; and to the number of antlerless deer which may be removed therefrom. 

No person shall, in any event, hunt or kill 

any antlerless deer without first having 

procurred an antlerless deer permit issued 

by the Game and Fish Commission. Such antlerless deer permits shall be Issued in such 

form and under such rules as may be prescribed 

by the Game and Fish Commission." 

Proclamation No. G-14 of the Game and Fish Commission covers 

the rules prescribed by 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 hunting permits: the Game and Fish 

Commission shall issue antlerless and/or doe 

deer hunting permits for designated areas only 

to bona fide landowners or their authorized 

agents only after said landowner or agents 

have applied in writing for the exact number 

of permits to be used. Said landowners or 

agents shall then Issue permits to individual 

hunters only after hunters have bagged an antlerless and/or doe deer on the area designated 

for the individual permit." 

First it should be pointed out that the quoted section 

from the proclamation is inconsistent with the statute because 

the statute requires that no person can kill any antlerless 

deer "without first having procurred an antlerless deer permit 

Issued by the Game and Fish Commission," while the proclamation requires the permits to be Issued to individual hunters 

"only after hunters have bagged an antlerless or doe deer." 

In so far as the proclamation Is Inconsistent with the statute 

in this regard, it is void. The antlerless and/or doe deer 

permits must be issued to individual hunters, under the statutes, 

before the hunt or kill of the animal. We understand that all 

antlerless and/or doe deer permits are issued with the following 

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Mr. H. D. Dodgen, Page 4 (C-71 ) 

language printed upon them "not to be transferred or sold." The 

language of the third paragraph of the practices outlined lndicates that the landowner advertises these permits "for sale at 

a set fee to hunters who kill a doe on his premises." We, therefore, believe that the landowner has violated the terms of the 

permit and the policy of the department signified by the words 

"not to be transferred or sold." The form of the permit and the 

rules under which it Is issued are within the province of the 

Game and Fish Commission. It Is, therefore, our opinion that 

the practices you outline would be a violation of the statute 

and policy of the Game and Fish Commission. 

The Colorado County Statute, Section 6 of Chapter 7, 57th 

Legislature First Called Session, provides as follows: 

"Section 6. The Game and Fish Commission's 

proclamation, rule or regulation permitting the 

hunting or taking of the antlerless and/or doe 

deer shall not be valid until the owner, or person in charge of the land upon which the antlerless and/or doe deer are to be taken, shall have 

agreed In writing to the removal by hunting of 

such antlerless and/or doe deer from his tract 

under supervision and regulation of said commission, and to the number of antlerless and/or doe 

deer which may be removed therefrom. No person 

shall, In any event, hunt or kill any antlerless 

and/or doe deer without procurrlng an antlerless 

and/or doe deer permit Issued by the Game and 

Fish Commission. Upon the face of such permit 

shall be printed these words: 'Not to be transferred or sold.' It shall be unlawful to sell 

any such permit and any person convicted of 

selling such permit shall be punished as provided in Section 13 hereof." 

The language in Proclamation No. H-9 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 so 

much of Proclamation No. 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 the practices 

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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Mr. H. D. Dodgen, Page 5 (C-71 ) 

"The Game and Fish Commission's rule, 

regulation or order permitting the hunting 

or taking of antlerless deer shall not be 

valid until the owner, or person in charge, 

of the land upon which antlerless deer are 

to be taken, shall have agreed in writing 

to the removal by hunting of such antlerless 

deer from his tract under supervision and 

regulation of said Commission and to the 

number of such antlerless deer which may be 

removed therefrom. No person shall, in any 

event, hunt or kill any antlerless deer wlthout first having procured an antlerless deer 

permit issued by the Game and Fish Commission. 

Such antlerless deer permit shall be issued 

In such form and under such rules as may be 

prescribed by the Game and Fish Commission. 

Further, it shall be unlawful for any person 

to sell any permit that he has received from 

the Game and Fish Commission for the hunting 

and taking of antlerless deer if payment for 

such permit by the purchaser is contingent 

upon the purchaser killing and taking such 

antlerless deer, or If, when such sale is 

made and payment received, retention of purchase price by the seller Is contingent upon 

the purchaser killing and taking such antlerless deer." 

The language in Proclamation No. 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 so much of 

Proclamation No. 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 practices you 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 landowner may allow the use of his land 

for hunting purposes contingent upon a successful hunt, such success being measured at a specific price for each deer, the price being paid In 

advance and refunded if the hunter does not kill 

a deer. A landowner who advertises an antlerless 

and/or doe deer permit for sale at a set fee to 

hunters who kill an antlerless and/or doe deer on 

his premises, receiving the fee in advance and 

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Mr. H. D. Dodgen, Page 6 (C-71 ) 

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, 1962-1963 as 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 

Assistant Attorne General 

NVS:nss 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Sam R. Wilson 

John Reeves 

J. Albert Pruett 

APPROVRD'FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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