EXE A OEENEY GENERAL 

CRAWPORD C. MARTIN 

AlTORNRY GENERAL 

Honorable James 

County Attorney 

Sabine County 

Hemphill, Texas 

TEXAS 

AUSTIN. %XAS 787 

December 22, 1969 

Allen Payne 

75948 

Opinion No. M-543 

RE: Interpretation of 

House Bill 1437. 

Dear Mr. Payne: 

61st Legislature, 

R.S. 1969 

You have requested an opinion of this office interpreting the meaning of House Bill 1437., 61st Legislature, 

R.S. 1969, ah. 640, p, 1421, codified as Article 9783, 

Vernon's Penal Code, which reads,~in part, as follows: 

"Section 1. No person may 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 person who 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 captioned bill. Is a 

person who is found with 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 person was using the 

recording device to attract wild cats and 

wolves. 

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Honorable James Allen Payne, page 2, (M-543) 

"It appears to me that this statute is vague 

and would depend on the intent of the person 

using the recording or other devices. If he 

was calling wolves 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 statute does 

not say 'to call or attract wild fox for the 

purpose of killing or capturinq the same.’ 

"I have had numerous requests from citizens of 

this County as to just what this statute covers. 

In my opinion, it does not prohibit one from 

using a horn, recording, or other device to 

attract predators other than wild fox. However, 

it would seem that if a wild fox was attracted 

to a call even though the caller was hunting 

predators other than wild fox, then it might 

be construed to be a violation of this act. 

Also, it would appear that the burden of proving 

that one was using devices for calling wild fox 

would be on the State unless the person was 

actually apprehended in the act of attracting 

a wild fox." 

In 53 Tex.Jur.Zd 239, Statutes, Section 163, the following appears (with ample authority cited in various footnotes): 

"So where the statutory language is ambiguous, 

or admits of more than one meaning, it is to be 

taken in such a sense as will conform to the 

scope and intent of the act, and will best or 

most certainly accomplish its purpose, without 

doinq violence to plain statutory language. 

Thus, where a statute is designed to afford a 

remedy for existing evils, it should be given 

such signification as will afford a reasonable 

remedy. Contrariwise, a construction that is 

repugnant to the object of the law or that will 

defeat, thwart, or unduly limit itg plain purpose, will be avoided if possible." 

In order to ascertainthe intent of the Legislature in 

the passage of this Act, we may also look to the caption Of 

-25$+- 
Honorable James‘Allen, Payne-, 'page 3, (M-543) 

the bill, which states as follows: 

"An Act 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 attracting wild fox. This being a penal 

statute calling for a strict construction (53 Tex.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 other wild game is not prohibited. 

Since the burden of proof is always 'upon the State in 

a criminal action, it will be necessary'to prove that any 

person found using the calling device had the intent to 

call wild fox. Proof of such intent may be difficult 

but it follows the general rule in all criminal cases where 

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 

presumed whenever the means used is such 

as would ordinarily result in the commission of the forbidden act." 

It is also noted that the statute in question does 

not mention possession of a calling device and therefore 

such possession would 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 attracting wild fox. 

19 

-2595- 
Honorable James Al&en Payne, page 4, (M-543) 

Prepared by Howard M. Pender 

Assistant Attorney 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 Assistant Attorney General 

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