EXE 

## A OEENEY GENERAL

**CRAWPORD C.**  **MARTIN AlTORNRY**  **GENERAL**

Honorable James County Attorney SabineCounty Hemphill,Texas TEXAS

**AUSTIN. %XAS**  787 December 22, 1969

Allen Payne
75948 OpinionNo. M-543

RE: Interpretationof House Bill 1437. Dear Mr. Payne: 61st Legislature, R.S. 1969 You have requested an opinion of this office interpreting themeaning of House Bill 1437., 61st Legislature, R.S. 1969, ah. 640, p, 1421, codified as Article 9783, Vernon's Penal Code, which reads,~inpart, as follows:

"Section 1. No personmay use any horn, recording,or other device to call or attract wild fox in Shelby,Nacogdoches, Sabine, San Augustine, Falls, or Leon Counties." "Section 2. A personwho violates any provision of this Act is guilty of a misdemeanor and upon conviction is punishable by a fine of not less than $25. nor more than $200." We quote from your request: "A question has arisen in our County pertaining to the above captionedbill. Is a person who is foundwith a horn, recording, or other device, which device will call or attract wild fox in violation of this law even though it is not his intent to be hunting fox? This personwas using the recordingdevice to attractwild cats and wolves.

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"It appears tome that this statute isvague and would depend on the intent of the person using the recordingor other devices. If he was callingwolves and bobcats and a wild fox was attracted to the call and he did not harm the fox in any way, would this be a violation of this statute? Of course, the statutedoes not say 'tocall or attractwild fox for the purpose of killing or capturinq the same.’ "I have had numerous requests from citizens of this County as to justwhat this statute covers. In my opinion, it does not prohibit one from using a horn, recording,or other device to attractpredators other than wild fox. However, itwould seem that if a wild fox was attracted to a call **even** though the callerwas hunting predators other thanwild fox, then itmight be construed to be a violation of this act. Also, it would appear that the burden of proving that one was using devices for callingwild fox would be on the Stateunless the personwas actually apprehended in the act of attracting a wild fox." In 53 Tex.Jur.Zd 239, Statutes, Section 163, the following appears (withample authority cited in various footnotes):

"Sowhere the statutory language is ambiguous, or admits ofmore than onemeaning, it is to be taken in such a sense as will conform to the scope and intentof the act, and will best or most certainly accomplish itspurpose,without doinqviolence to plain statutory language. Thus,where a statute is designed to afford a remedy for existing evils, it shouldbe given such significationas will afford a reasonable remedy. Contrariwise, a construction that is repugnant to the object of the law or thatwill defeat, thwart, or unduly limit itgplain purpose, will be avoided ifpossible." In order to ascertainthe intent of the Legislature in the passage of this Act, we may also look to the caption Of



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the bill, which states as follows:

"AnAct prohibiting the use of devices for calling wild fox in certain counties;providing a penalty: and declaring an emergency';" It thus appears from **the** caption that all that has been prohibited by the Legislature is the use of devices for the purpose of calling or attractingwild fox. This being a penal statute calling for a strict construction (53Tex.Jr.2d 304-307, Statutes, Sec. 198; 16 Tex.Jur.Zd 137, Criminal Law, Sec. 32) it necessarily follows that the use of devices for calling otherwild game is not prohibited. Since theburden of proof is always 'uponthe State in a criminal action, it will be necessary'toprove that any person found using the callingdevice had the intent to call wild fox. Proof of such intentmay be difficult but it follows the general rule in all criminal caseswhere specific intent is a part of the offense. However,your attention is directed to Article 45 of Vernon's Penal Code which states:

"The intention to commit an offense is presumedwhenever themeans used is such as would ordinarily result in the commission of the forbidden act." It is also noted that the statute in questiondoes notmention possession of a calling device and therefore such possessionwould not be an offense. SUMMARY The use of a horn, recording or other device in the named counties is only in violation of House Bill 1437, 61st Leg., R.S. 1969,when such use is for the purpose of calling or attractingwild fox. 19



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Preparedby HowardM. Pender AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman Alfred Walker, Co-Chairman Bob Lattimore Tom Bullington Lonny Zwiener Wqrdlow Lane MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First AssistantAttorney General

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