E,XAS

Hon. Bill Hollowell Chairman Housetial Investigating Committee Capitol Station Austin, Texas

Dear Sir8 January 24, 1963
OpinionNo. C- 5 FlerWhether, under the provlsions of Article 893 of Vernon's Penal Code, Justice Courtshave jurisdiction to try persons charged with violations of Texas Game and Fish Laws and related question. We have reoelved and carefully consideredyour requeat for an opinionupon the following questions:

1. “Under Article 893 of the Penal Code and under the Constitutionof Texas, the committee would like to know If Justice Courts in Texas have juslsdlotionto try those charged with violation of Texas Fish and Game Laws,” 2. “Under Article 893 mentioned above is it mandatory that the court or jurydecide whe%her to forfeit or restore a licensewhen a case is disposed of by them.” Section 1 of Article 893, Vernon’s Penal Code, provides: “Any person charged in any court in

this State with an offense of violating any law which it ia the duty of the Game and Fish Commissi~on to enforce shallhave the right to have the court or jurybefore which saidperson is tried either to for- %othe licenseof saidperson so charged restore said license to said person so charged for the remainder of the license period. me court shall so state in its judument whether or not the license of said Derson Is revoked or whether or not Bald nerson shall retain samet" (Bmphasls arlnari 1 -----,Hon. Bill Hollowell, Page 2 

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In Ex Darte A J. Morris, 325 S.W.2d 

### 386 (Tex. Crlm. 1959) the Courtheld that the Justice Court waswithout jurisdictionto try a person under a statute,making It unlawful to enter the lnclosed land to hunt or fish, which provided as the maximumpunishment a fine of not more than $200and forfeitureof hunting licenseand right to hunt for oneyear, because punishmentu,nderthe statutewas not limited to a fine of $200.00.

ArticleV. Section 19 of the Constitutionof Texas, reads as follows:

"Justicesof the Peace shallhave jurisdiction in criminalmatters of all cases where thepenalty or fine to be ImDosedbv lawmav not be more than for two hundred dollars

. , . 11

. added) (Emphasis

Article 

### 60 of Vernon's Code of Criminal Procedure provides that Justices of the Peace shallhave Jurisdiction in criminal cases where "the fine to be imposedby lawmay not exceed two hundred dollars." Under the wording of the Constitutionand statute, jurisdictionof the Justice of the peace rests solely on the fine to be Imposedby law not exceeding $200.00.

It shouldbe noted that in defining the jurisdiction of corporation courts and concurrent jurisdictionof justices of the Pease, Article 

### 62,Vernon's Code of Criminal Procedure, provides, s . .$n which Dunishment Is be fine only, and where themaximum of such finemay not exceed two hundred dollars.

. .'

In ,Bxvarte ROY Howard, 

### .34'7 S.W.2d 721 (Tex.Crlm. 1961) held where the punishment for the violation of the statute the defendant was chargedwith violating (Article910 Vernon's Penal.Code)wasby a fine of not less than 

### $50.00 nor more than $200.00 and the forfeitureof hunting license, that the justice courthad no jurisdiction.

The Court went on,to say: “Artble 

### 5, Section 19 of the Texas Constitution,Vernon's Annotated Statutes, limits the criminal jurisdictionof the Justice Courts to offenses where the punishment whichmay be assessed is by a fine only, not to exceed $200.' 

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Hon. Bill Hollowell, Page 

### 3 (C-

### 5 )

In answer to your first question, It Is our opinion that the Justice Courtsdo not have jurisdictionto try those persons charged with violating any law which It is the duty of the Game and Fish Commission to enforce in those cases wherein Section 1 of Article 893, Vernon's Penal Code apply. 'Wenow consideryour second question. Prior to the 1953 amendmentArticle 893 read In part as follows:

"Anyperson convicted of violating any provision of the game laws of this state shall thereby automatlcallv forfeithis license for said season. . .r (EmphasisAdded) The right to hunt was automatically forfeitedby a violation of such laws and a conviction of the defendant under said law. The statutedid not conferupon the court the authority to forfeit the defendant's right to hunt, and the inclusion of such provisions in the v. State* 69 S.W.2d 89 udgment was of no 'effect. Tex.Crlm. 1933). Galloway

After the 1953 amendment, Section 1 of Article 893, Vef;;;is Penal Code, read as above statedonpage 1 of this

It is stated in 

### 26 Tex. Jur. XI 

### 533,Game and Game lak, Section 10 that:

"Formerlya conviction of violating any provision of the game laws automatically forfekted the licenseof the convictedperson, "and he could not obtain another for a speclfled period. Under the present law,however, any person charged with violating any law that It is the duty of the Game and Fish Commission to enforcehas the rlzht to have a court or jurydecision on the question of forfeitureand of restoration of license." (Emphasisadded) Sections 4 and 

### 5 of the Act amendingArticle 893 reads in part as follows:

"Sec. 

### 4. All laws, OP parts of laws, local, general or special,are hereby repealed to the extent that theyponfllct with any provision of this Act. "Sec. 

### 5. The fact that such licenses are now automatically forfeitedon a vlolatlon of any hunting and fishing law without- .

Hon. Bill Hollowell, Page 4 (C-5 )

allowing same to be at the discretion of the court, creates an emergency. . .II (Emphasisadded) Acts 53rd Leg. R.S. 1953, Ch. 5, p.11. This further Illustrates that the Legislature Intended to repeal the automatic forfeitureof licenses, that existedprior to the 1953 amendment,and give the trial courts the discretion of determining whether the license shouldbe forfeited.

Construing the questionof the forfeiture,the Court In the case of Ex parte A. J. Morris, suora, said:

"It, Is apparent that the amended Article 893, V.A.P.C.
. . . specificallyprovides that the forfeitureof thehunting licenseof the defendant is for the court or,,jury ande be provided for in the judgment. added) (Emphasis

It Is therefore our opinion that when a person is convicted In such cases in a court of competent jurisdiction it is mandatoryupon the court or jury to decide whether to forfeit or restorehis licenseand provide for same in the judgment.

SUMMARY

1. The Justice Courtis without jurisdiction to try a person charged with the violation of any law which it is the duty of the Game and Fish Commission to enforce, in those cases wherein the provisions of Section 1 of Article 893, Vernon's Penal Code are applicable. 2. When a person is convicted In such cases In a court of competent jurisdictionit is mandatoryupon the court or jury to decide whether to forfeit or restorehis license and provide for same in the judgment. Yours very truly,.

WAGGONER CARR AttorneyGeneral of TexasHon. Bill Hollowell, Pais 5 (C-5 1



# By&/a

Gilbert J. Pe a AssistantAttorneyGeneral GJP:cjs APPROVED: OPINION COMMITTEE: W. V. Geppert, Cha%rman Norman Suarez Bill Allen Joseph Trlmble John Reeves REVIEWED FOR THJ3

ATTORNEY GENERAL By: Stanton Stone APPROVED: Waggoner Carr