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 connection with your recent request for opinion you submitted 

the followtng fact situation: 

"In Hardin County, there are wildlife and hunting 

associations and cluba with 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 land with 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 others which 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 connection with such facts..you pre~sent the ,followlng queetlons: 

(1) Will this general enclosure enable the,game club officials 

and/or~wardens to file trespass charges under Article 1377b on an 

individual hunting on the leased property of the game club within 

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 leased property of the 

game club within the general enclosure? 

(3) In view of the wording of Article 1377b, Section 3, Vernon's 

Annotated Penal Code, does a Justice Court have jurisdiction to try 

a treapaas case? 

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Hon. Dwayne V. 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 1377b provides that a person 

who claims the right to use land which is wholly or partially surrounded by land owned by another person shall not enter or attempt 

to enter upon the surrounding land without the consent of the owner, 

proprietor, lessee, or person in charge of such surrounding land, and 

do or attempt to do any of a number of itemized acts. 

Subdlvlsion (b) of Section 2 contains an access provision providing 

in part that a person who claims the right to use land which is 

either wholly or partially surrounded by land owned by another person 

shall have the right to enter the surrounding land for purposes of 

Ingress and egress to such land that Is wholly or partially surrounded. 

Section 3 of Article 137713 provides penalties upon conviction for 

violation of the provisions of Sections 1 or 2 generally as follows: 

Upon first conviction, a fine of $10 to 

Upon second conviction, a fine, $200 to % 

50. 

500 

and forfeiture of hunting and/or fishing privileges for two years; and, 

Upon third conviction, confinement in jail not 

to exceed 30 days, or by fine of $500 to $1,000 

and forfeiture of hunting and/or fishing privileges for three years. 

Article 895d, Penal Code of Texas, provides in part, as follows: 

"Notwithstanding any other provision of law, 

hunting licenses, ..,., and fishing licenses, 

*, . ., are not subject to forfeiture for violation 

of any .general, local or special game or fish law 

or for violation 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.quoted portion of 

subsection (b) of Section 2 of Article 1377b, which purports to 

grant access rights to the surrounded tract, to be violative of 

Section 17 of Article 1 of the Constitution of Texas. 

Subsection (b) of Section 2, however, is neither related nor material 

to the other provisions here under consideration, and further, the 

amendatory acts of 1959 and 1963 each contained severability clauses, 

and If the remaining portions may stand alone they will stand unaffected by the Wagoner case. 

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Hon. Wayne V. Overstreet, Page 3 (M-345) 

The remaining portions of Section 2 present other problems which 

we feel render such section wholly inoperative. Although not 

directly material to the fact situation you prasent, we must 

observe that subdivision (a) of Section 2 is directed not only 

to those tracts totally surrounded by 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 situations where 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 therefore must be regarded as wholly Inoperative 

under the provisions of Article 6 of the Penal Code of Texas. With 

“partially surrounded” tracts excluded from Section 2 there remains 

only those tracts totally surrounded coming within the purview of 

Subdivision (a) of Section 2. 

Section 1 of Article 1377b places the onus upon the land holder 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 Constitution and is void and 

Inoperative. 

Further unequal application of the law Is pointed out by Section 5 

of Article 1377b which provides that the surrounding land holder 

shall not enter or attempt to enter upon the surrounded land. This 

prohibition Is not limited,to the itemized acts prohlblted by Sections 1 and 2 but is an absolute prohibition against entry. However, 

this unequal prohibition is apparently offset by the fact that no 

penalty Is provided for its violation. 

Your first question, which Inquires as to the sufficiency of the 

“general enclosure” under Section 1 of Article 1377b Is answered in 

the negative. The “general enclosure” might be considered as enclosed 

to everyone, except the surrounded land holders 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. 

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Ron. Dwayne V. Overstreet, Page 4 (M-345) 

For the constitutional reasons herelnbefore set out it is the 

opinion of this office that your second question should be answered 

In the negative. The exception from the enclosure requirement 

being Inoperative, and the land not being "enclosed", no offense 1s 

shown. 

Article 5, Section 19 of the Constitution of Texas provides that: 

"Justices of the Peace shall have jurisdiction In 

criminal matters of all cases where the penalty or 

fine to be Imposed by law may not be more than two 

hundred dollars, . ..' 

Prior to the enactment of Article 1377b and the repeal of Article 

1377, in 1959, Article 1377 provided a penalty of a fine not to 

exceed $200 and by forfeiture of hunting and/or fishing privileges 

for one year, but Article 893 gave the court the discretion whether 

to forfeit such licenses. In the case of Ex Parte Morrla, 325 S.W.2d 

386, the Court of Criminal Appeals held that "the Justice Court Is 

without jurisdiction to try a prosecution under Article 1377, P.C., 

the punishment provided in the statute for Its violation 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 1377b providing for fine only of $10 to $50 

upon first conviction was enacted. Since that time Article 893 has 

been repealed and Article 895d enacted. 

It is the opinion of 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 offense under the Article that Is within such jurladlctlon in that 

the Second and Third offense penalties are not limited to a fine of 

not more than $200.00. 

SUMMARY 

A general or perimeter enclosure around a tract of 

land which surrounds another tract of land under 

different ownership and control does not constitute 

such enclosure as is necessary to sustain a conviction 

under Section 1 of Article 1377b, Vernon's Penal Code. 

The provision in Section 2 of Article 1377b excluding 

the surrounding tract from requirement of enclosure la 

in vlolatlon of Article 1, Section 3 of the Texas Constitution, requiring reasonable classification. Justice 

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Hon. hrayne V. Overstreet, Page 5 (M-345) 

of the Peace Court has jurlsdlctlon over first conviction trespass under Article 1377b, but not over 

second or third conviction cases. 

VW truly yours, 

Prepared by Harold 

Assistant Attorney 

APPROVED: 

OPINION COMMITTEE 

0. Kennedy 

General 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Jo Betsy Lewallen 

Charles Rose 

Bob Lattlmore 

Tom Bullington 

W. V. CiEPPERT 

Staff Legal Assistant 

C. Martin 

General of Texas 

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