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The Honorable Clayton T. Garrison Executive Director Opinion No. H- 151 Texas Parks and Wildlife Department John H. Reagan Building Austin, Texas 78701 Re: Is the Texas Parks and Wildlife Commission authorized to adopt regulations pursuant to the

Dear Mr. Garrison: Uniform Wildlife Regulatory Act (Article 978j-1, V. T.P. C.) or other sta**tutes** for the purpose of enforcing hunter safety on small private tracts ofland? Your letter requesting our opinion asks whether the Texas Parks and Wildlife Commission is authorized byany statute to adopt and enforce regulations providing for hunter safety on small private tracts ofland. As background you indicate that, in recent years, it has become fairly common for people to divide a large tract ofland into numerous small tracts which are purchased byindividuals for hunting deer or other game animals. You state that the Department has received several complaints and, as one individual stated, “Bullets do not stop at property lines. ” As your letter tacitly recognizes, the Parks and Wildlife Department may only exercise su~chpowers as have been granted it by the Legislature. Therefore the answer toyour question requires an examination ofthe pertinent statutes. The Parks and Wildllife Department, under the “po,licy direction” ofa Commission, was created in 1963out ofthe Game and Fish Commission and the State Parks Board, assuming all the powers, duties and authorities ofeach. Acts 1963, 58th Leg., ch. 58, p. 104;Article 978f-3a, V. T.P. C.

p. 704The Honorable Clayton T. Garrison, page 2 (H-151)

From time to time additional responsibilities have been added as, for instance, in 1965when the Department was given control and custody over several historic State battlegrounds. (Acts 1965, 59th Leg., ch. 225, p. 441;Article 6071b, V, T. C. S.) In 1971, it was given certain powers over the Texas State Railroad. (Acts 197:1,62nd Leg., ch. 311,p- 1249;Article 6069c, V.T.C.S.) None ofthese statutes, however, authorized one ofthe predecessors ofthe Department or the Department itself to regulate the use offirearms. The Penal Code, Title 9, Chapter 4prohibits the unlawful carrying ofarms, butthese provisions do not apply “to the carrying ofarms on one’s own” property. Article 484, V. T.P. C., and see $46.03(2) ofthe 1973Penal Code (Acts 1973, 63rd Leg., ch. 399. p, 883). Similarly, there were many Articles in the Penal Code regulating huntina and designed toprotect game. Vernon’s Texas Penal Code, Title 13, Chapter 6. Such regulationsas there were with used in hunting were designed to protect the hunted, human beings. See, for example, Articles 879a-5, v. T.P. c. reference to weapons not the hunter or other 87921-6, 90:1and 902,

In 1971, the Legislature adopted what is now Article 6067b, V. T. C.S., (Acts 1971, 62nd Leg., ch. 383, p. 1403). Section ,Lofthe statute provides:

“The Parks and Wildlife Commission is hereby authorized to promulgate reasonable rules and regulations governing the health, safety and protection ofpersons and property within State parks, historic sites, scientific areas, or forts administered by the Parks and Wildlife Department, as may hereafter be necessary. Said rules and regulations may be promulgated to govern the conservation, preservation and use ofState property whether natural features or constructed facilities; the abusive, disruptive or destructive conduct ofpersons; the activities ofpark users including camping, swimming, boating, fishing or other recreational activities; the disposal ofgarbage, sewage or refuse; the possession ofpets or animals; the regulation oftraffic and

p. 705The Honorable Clayton T. Garrison, page’ 3 (H-151 1

parking; and the conduct ofindividuals which endangers the health or safety ofpark users or their property. (emphasis added) As aprerequisite to adopting a rule or regulation, $2 ofthe statute requires notice and ahearing. However, this statute authorizes rules and regulations applicab:te only to :lands within the custody and control ofthe Department and Commission. Cf. Attorney General Opinion M-953 (1971). The 63rd Legislature (Acts 1973, 63r.d Leg,, ch. 474, p. 1281)has authorized the Commission to prohibit the use offirearms on state property adjacent to state parks ,located within one mile of coastal waters ofthe state. The fact tl& the Legislature on two recent occasions has seen fit to expressly limit the powers ofthe Texas Parks and Wild,life Department and Commission to regulate hunting and the use offirearms to state owned property, coupled with the provisions ofthe new Penal Code exempting from the regulation ofweapons, firearms used on one’s own property compels usto conc:lude that it has not been the intention ofthe Legislature to extend tothe Department or Commission authority to adopt regulations to enforce hunter safety on small private tracts ofland. ? While the Uniform Wildlife Regulatory Act (Article 978j-1, V. T.P. C.) gives to the Commission extensive powers to regu,late hunting so as to conserve wildlife, it does not expressly give the Commission the **power** about which you inquire. SUMMARY

Inthe absence of expres,s legislativeauthority, the Parks and Wildlife Department may’,not adopt regulations f ’or the I&- pose of enforc’ing hunter safety onprivate-tracts ofland.

Attorney General of Texas

p. 706The Honorable Clayton T. Garrison, page 4 (H-151)

APPPOVED:

DAVID M. KENDALL, Chairman Opinion Committee

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