## TEZEATTORNEYGENEEAL QFTEXAS

Hon. H. D. Dodgen ExecutiveSecretary OPINIONNo. c-36 Game and Fish Commission Re: Austin, Texas Whether, in hunting and fishing ,violations under ,circumstances

which do not require-thepossessionof a license, chargesmust be filed in courts other than Dear Mr. Dodgen: the justice courts. You have requested our opinion on the followingquestion: "In hunting or fishing violations-under circumstanceswhich do not require possessionof a license,must chargesbe filed in other than justice courts?" Section 1, of Article 893, Vernon's Penal Code, provides:

"Any r person charged in any court in this State with an offense of,violating any law which it is the,

duty of the Game and Fish Commissionto eaforc,eshall have the right to have the court or jury before which said person is tried either to forfeit the license of said person~so charged or to restore,said license to said person so charged for the remainderof the license period. The court shall so state in its judgmentwhether or not the license of,said person is revoked or whetheror not said person shall retain same." It is clear from the above quoted provision that a license is subject to be forfeitedby the court whenever a person is chargedwith a violationof "any law which it is the duty of the Game and Fish Commissionto enforce'!, if the person so chargedpossessesa license, irrespective of,whetherthe hunting or ,fishing violations

were undercircumstances which do not require possessionof a license. It is elementarythat the court cannot forfeit a non-existantlicense.- -

Hon. H. D. Dodgen, Page 2 (Opinion No. C-36)

It has long been establishedthat even though the per-~ missible fine does not exceed Two Hundred ($200.00) Dollars, jurisdiction

of the justice of the peace would not exist where an alternativeor cumulative form of penalty,could be imposed.
In Tuttle v. State, 1 Tex. App. 364, Judge White said:

"Imprisonment

in the county jail cannot be estimated in dollars,nor c,an it be consideredin any manner .apecuniary fine: It follows, therefore, .,. . that whenever, in misdemeanors,imprisonment may be assessed ,asan alternative,orpart of the' fine to be imposed, justice courts have no jurisdiction

. . .'I It is well established that a justice court does not have jurisdiction

where the nunishmentmav include a.forfeiture of hu&ing or~fishinglicens;, Ex Parte A: J.~Morris,~,325 S.W.2d 386 (Tex.Crim.19591, and Ex Parte Roy,Hotiard, 347 S.W.2d 721 (Tex.Cri.m.,1961). Attorney General'sOpinion C-5, (19651,a copy of which is enclosed,held that the justice courts,@onot have jurisdiction to try those persons charged with violations,wherein Section 1, of ,Article 893, Texas Penal Code, applies,because that sectionmakes forfeitureof the license an additionalpermissible punishmentto be included in the judgment. You are thereforeadvised that in every case of a violation of 'Iany

law" which it is the duty of the Game and Fish Commissionto enforce;if the person chargedpossessesa hunting or fishing license, same may be forfeited. In such-cases the justice courts do not have jurisdictionto try same, but the county court would have jurisdiction. If the person so charged does not possess a hunting or fishing licZ?nse, the justice courts have jurisdictionto try same in ail cases where the punishmentis by, fine not exceedingTwo Hundred ($200.00) Dollars. SUMMARY

In every case of a violationof "any law" which it is the duty of the Game and Fish Commissionto enforce, if the person chargedpossessesa hunting or fishing license, same may be forfeited. In such cases the justice courts do not have juris-

-P52-Hon, H. D. Dodgen, Page 3 (OpinionNo. C-36)

diction to try same, but would have jurisdiction.

. . the county court If the person so a bunting or fishcourts have juris- - . cnarged does not possess ing license, the justice diction to try same in all cases where the punishmentprovided is b fine not exceeding Two Hundred ($200.00 7 Dollars. Yours very truly,

WAGGONER CARR Attorney General of Texas

*Gilbert J. Pena AssistantAttorney General GJP:hd APPROVED: OPINION COMMITTEE: W. V. GeDDert. Chairman Murray JordanScott Garrison Samuel Strong Pharr Malcolm Quick REVIEWED FOR THE ATTORNEY GENERAL By: Stanton Stone APPROVED: Waggoner Carr

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