Honorable Dwayne V. Overstreet Opinion No. 

### M-345

County Attorney of Rardin COUntY Rardin County Courthouse Re: Construction of Article Kountze, Texas 

### 77625 1377B,V.P.C., relating to Justice Court jurisdiction, and sufficiency of encloDear Mr. Overstreet: sure.

In connectionwith your recent request for opinion you submitted the followtng fact situation:

"In Hardin County, there are wildlife and hunting associations and clubawith leases on large tracts of land, one of which is composed of approximately 40,000 acres. Each of these clubs have leases on these large tracts of landwith a general enclosure around the large tracts of land. There is some cross fencing in some of the cluba. Yet, within the general enclosures, there are small tracts of land not included In the leases held by the game clubs and these small tracts of land, some of which may be composed of 10
acres and otherswhich may be composed of 200 acres are not fenced separately and apart, but are situate within the general enclosure of the game and wildlife clubs."

In connectionwith such facts..you pre~sentthe ,followlngqueetlons:
(1) Will this general enclosure enable the,game club officials and/or~wardens to file trespass chargesunder Article 1377b on an individualhunting on the leasedproperty of the game clubwithin the general enclosure?
(2) Will this enclosure enable the game club officials and/or wardens to file trespass charges on an owner or lessee of one of the small tracts who is found hunting on the leasedproperty of the game clubwithin the general enclosure? 

### (3) In view of the wording of Article 1377b, Section 3,Vernon's Annotated Penal Code, does a Justice Courthave jurisdiction to try a treapaas case? -1702-Hon. DwayneV. Overstreet, Page 2 (M-345)

Section 1 of Article 1377b, Penal Code of Texas, provides that no person shall enter or attempt to enter upon the enclosed land of another without consent of the owner, proprietor, lessee,or person in charge thereof,and there do or attempt to do certain Itemized acts.
Subdivision (a) of Section 2 of Article 1377bprovides that a person who claims the right to use land which iswholly or partially surrounded by land owned by another person shallnot enter or attempt to enter upon the surrounding landwithout the consentof the owner, proprietor, lessee,or person in charge of such surroundingland, and do or attempt to do any of a number of itemizedacts.
Subdlvlsion (b) of Section 2 contains an access provisionproviding in part that a personwho claims the right to use landwhich is either wholly or partially surroundedby land owned by another person shallhave the right to enter the surrounding land for purposes of Ingress and egress to such land that Iswholly or partially surrounded.
Section 3 of Article 137713 provides penaltiesupon conviction for violation of the provisions of Sections 1 or 2 generallyas follows:

Upon first conviction,a fine of $10 to Upon second conviction, a fine, $200 to %50. 500 and forfeiture of hunting and/or fishingprivileges for two years; and, Upon third conviction, confinement in jail not to exceed 30 days, or by fine of $500 to $1,000 and forfeitureof hunting and/or fishingprivileges for three years.
Article 895d, Penal Code of Texas, provides in part, as follows:

"Notwithstandingany other provision of law, hunting licenses, ..,.,and fishing licenses, *,

..,are not subject to forfeiture for violation of any .general,local or specialgame or fish law or forviolation of any rule or regulation of the Parks and Wildlife Commission."

In the case of Waggoner's Estate v. Qleghorn, (Tex. Sup. 1964) of 378 S.W.2d 47, the Supreme Court held the above.quotedportion of subsection (b)of Section 2 of Article 1377b,which purports to grant access rights to the surroundedtract, to be violative of Section 17 of Article 1 of the Constitutionof Texas.
Subsection (b) of Section 2, however, is neither relatednor material to the other provisionshere under consideration,and further, the amendatory acts of 1959 and 1963 each contained severabilityclauses, and If the remainingportions may stand alone theywill standunaffected by theWagoner case. -1703-Hon. Wayne V. Overstreet, Page 

### 3 (M-345)

The remaining portions of Section 2 present otherproblems which
we feel render such sectionwholly inoperative. Although not directly material to the fact situationyou prasent,we must observe that subdivision (a)of Section 2 is directed not only to those tracts totally surroundedby larger tracts but also to those that are partially surrounded. Whether the term “partially surrounded” Is intended to apply to all adjoining tracts with a single common boundary no matter how short the line, or whether it Is limited to situationswhere 

### 3 of 4 sides are surrounded, or maybe 

### 17 of 23 sides, it is impossible to determine. It is the opinion of this office that such provision “1s so Indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which It is expressed, or from some other written law of the State,” and thereforemust be regardedas wholly Inoperative under the provisions of Article 

### 6 of the Penal Code of Texas. With “partiallysurrounded” tracts excluded from Section 2 there remains only those tracts totally surrounded comingwithin the purview of Subdivision (a) of Section 2.
Section 1 of Article 1377bplaces the onus upon the landholder to have his land enclosed if he wants to partake of the protection afforded him by the trespass statute,but Subdivision (a) of Section 2 would relieve a land holder of this requirement, Insofar as his neighbors are concerned, if he Is big enough to totally surround them. It Is the opinion of this office that the relative size of one’s holdings In relation to those of his neighbor is not such reasonable claaslficatlon as la required by Article 1, Section 

### 3 of the Constitution of Texas, and for this reason Subdlvlslon (a) of Section 2, insofar as it attempts to relieve surrounding landowners of the prerequisites of encloslng their lands, Is In violation of Article 1, Section 

### 3 of the Texas Constitutionand is void and Inoperative.

Furtherunequal application of the law Is pointed out by Section 

### 5 of Article 1377b which provides that the surrounding land holder shallnot enter or attempt to enter upon the surrounded land. This prohibition Is not limited,to the itemizedacts prohlblted by Sections 1 and 2 but is an absolute prohibition against entry. However, this unequal prohibition is apparently offsetby the fact that no penalty Is provided for its violation.

Your first question,which Inquires as to the sufficiency of the “generalenclosure” under Section 1 of Article 1377b Is answered in the negative. The “generalenclosure” might be considered as enclosed to everyone, except the surrounded landholders and those persons having the right of entry under them, but not being enclosed to these persons, it Is not enclosed to any, as the,large tracts of land In question are not totally enclosed. The term “enclosed land” as used in Section 1 of Article 1377b,means land that Is completely and fully enclosed.

-1704-Ron. DwayneV. Overstreet, Page 4 

### (M-345)

For the constitutionalreasons herelnbefore set out it is the opinion of this office that your second question should be answered In the negative. The exception from the enclosurerequirement being Inoperative,and the landnot being "enclosed",no offense 1s shown.
Article 

### 5, Section 19 of the Constitution of Texasprovides that:

"Justicesof the Peace shallhave jurisdiction In criminalmatters of all cases where thepenalty or fine to be Imposedby law may not be more than two hundreddollars,

...'
Prior to the enactmentof Article 1377b and the repeal of Article 

### 1377,in 1959,Article 

### 1377provided a penalty of a fine not to exceed $200 and by forfeiture of hunting and/or fishingprivileges for one year, butArticle 

### 893gave the court the discretionwhether to forfeit such licenses. In the case of Ex ParteMorrla, 325 S.W.2d 

### 386, the Courtof CriminalAppeals held that "theJustice Court Is without jurisdictionto try a prosecution under Article 

### 1377,P.C., the punishmentprovided in the statute for Itsviolation not being limited to a fine of $200.00."
Article 

### 1377,Acts 1959, 56th Leg., 2nd C.S.,p. 

### 164,ch. 42, was repealed and Article 1377bproviding for fine only of $10 to $50 upon first convictionwas enacted. Since that time Article 

### 893has been repealed and Article 895d enacted.

It is the opinionof this office that the bar to Justice Court jurisdiction on first offense trespass has been removed by the present provisions of Article 1377b and that such first offense is within the jurisdiction of the Justice of the Peace Court,but that It Is the only offenseunder the Article that Iswithin such jurladlctlon in that the Second and Third offensepenalties are not limited to a fine of not more than $200.00.

SUMMARY

A generalor perimeter enclosure around a tract of landwhich surroundsanother tract of landunder differentownershipand control does not constitute such enclosureas is necessary to sustaina conviction under Section 1 of Article 1377b,Vernon's Penal Code. The provision in Section 2 of Article 1377b excluding the surroundingtract from requirement of enclosure la in vlolatlonof Article 1, Section 

### 3 of the Texas Constitution,requiring reasonable classification. Justice

-1705-Hon. hrayneV. Overstreet, Page 

### 5 (M-345)

of the Peace Court has jurlsdlctlon over first conviction trespassunder Article 1377b, but not over second or third conviction cases.

VW truly yours,

Preparedby Harold AssistantAttorney

APPROVED:

OPINION COMMITTEE 0. Kennedy General

Kerns Taylor, Chairman George Kelton,Vice-Chairman Jo Betsy Lewallen CharlesRose Bob Lattlmore Tom Bullington

W. V. CiEPPERT Staff LegalAssistant C. Martin General of Texas

- 

### 1706-