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HonorableH. E. Faubion Assistant Executive Secretary Game, Fish and Oyster Commission Austin, Texas
Dear Sir: OpinionNO. o-6936 Re: Whether Articles 480a and 1377, V.A.P.C., are game laws and related questions.
We have received your letter ofNovember 15, 1945, which Is quoted below:

"1

. Is Article 1377, Penal Code, 1925, a 'gamelaw' the enforcement ofwhich is the duty of the game, Fish and Oyster Commission as well as other officers?
"2

. Ifyou answer the first question in the negative, then is the Game, Fish and Oyster Commission authorized to collect the arresting officer's feewhen an arrest ismade for violation of Article 1377, P. C. 1925 by a game and fishwarden and place such fee to the credit of the Department fund in the State Treasury?

“3

. IsArticle 48Oa, P. C. 1925, providing 'Anypersonwho shoots or discharges any gun, pistol or firearm in, on, along or across any public road in this State shall be fined not more than OneHundred Dollars,' a 'gamelaw' the enforcement of which is the duty of the Game, Fish and Oyster Commission as well as other officers?
"4

. If your answer to the third question Is in the negative, then is the Game, Fish and Oyster Commisslonauthorized to collect the arresting officer's fee when an arrest ismade for violation of Article 48Oa, P. C. 1925 by a game and fish warden, and place such fee to the credit ofDepartment funds in the State Treasury?"
As specificallydeslgnated InArticle 4018,V.A.C.S,

‘8 and Articles 905 and 978f of the Penal Code, It is the duty andHonorable H. E. Faubion - nage 2 o-6936

obligation of the Game, Fish and Oyster Commission to enforce laws for the protection and preservation of game,wild bird3 and fish. Such laws relating to the preservation of game are generally referred to as "gamelaws" and are adequatelydescribed by the Georgia Court ofAppeals in the case of Poulos v. State (174S.E. 253) In the following language:

"'Game laws' isa title commonly used to describe a series of statutes,which have not a loglcally connecteddesign, but of which the general aim is to protect from unauthorizedpursuit and killing certainbirds and animals ferae na'curae

which are fit for human food. Bouvier's Law Dictionary. Black's LawDictionary defined them to be 'Lawspassed for the preservation of game. They usually forbid the killing of specified game during certain seasons.'"~ The most recent officialrevision of the Criminal Statutes of this State took place In 1925,when, at the Regular Session of the Thirty-NinthLegislature, the Penal Code of Texas was officially adopted. At that time,Article 1377 was placed in Chapter Three entitled "MaliciousMischief" under Title 17 of the Code, labeled "OffensesAgainst Property." Whereas in the entirely separatedLvislon of the Code, namely, Chapter Six entitled "Game,Fish and Oysters"under Title 13, "Offenses Against Public Property," the statutesknown as game laws, as welI as others pertaining to the duties and authority of the Commission,were listed. The arrangement of the statutes in suchmanner, although not a controlling consideration,was indicative of the Legislative intent to excludeArticle 1377 from the laws relating to game. 59 C. J. 1101; Sutherland on Statutory Constructlon,Vol. 2, p. 390.

The above Article was amended twice by Acts 1929, 41st Legislature, once in theFirst CalledSession and again in the Second Called Session, and itpresently reads as follows:

"Article1377. Entering inclosed land to hunt or fish. "Whoever shall enter upon the lnclosed land of anotherwithout the consent of the owner,proprietor or agent in charge thereof, and therein huntwith firearms or thereon catch or take or attempt to catch OP take any fish from any pond, lake, tank or stream, or In any manner depredate upon the same shallbe guilty of a misdemeanor, and upon conviction thereof, shall be fined any sum not less than $10.00 nor more than $200.00 and by a forfeiture of his hunting licenseHonorable Ii.E. Faublon - naae 7. o-6916

and the right to hunt in the State of Texas for a period of oneyear from the date of his conviction. By 'inclosedlands' ismeant such lands as are in use for agriculture or grazing purpose3 or for any otherpurpose, and inclosedby any structure for fencing either of wood or iron or combinationthereof, orwood and wire, or partly by water or stream, canyon,brush, rock or rocks, bluffs or island. Proof of ownership or leasemay be made by parol testimony. Provided,however, that thisAct shall not apply to inclosed landswhich are rented or leased for hunting or fishing or camping privileges where the owner,proprietor, or agent in charge or any person for him by any and everymeans has received or contracted to receivemore than twentyfive cents per acre per year or any part of a year for such hunting fishing or campingprivileges, or where more than $4.00per day per person Is charged for such hunting, fishing or camping privileges. And provided further that this exemption shall exist for a period of one year from the date of the receipt of such sum or sums of money. "Sec.2. Any person found. upon the inclosed lands of anotherwithout the owner's consent, shall be subject to arrest by any peace officer, and such arrest may be made without warrant of arrest. '(Asamended Acts 1929 41st Leg., 1st C.S., p. 242, ch. 100 Acts, 1929: 41st Leg., 2nd C.S., p. 41, ch. 26.)' The emergencyclause of the Act amendingArticle 1377, enactedby the First Called Session, casts some light upon its purpose and is set out below:

"Sec.4. The fact that there is now no law providing for an adequateprotection of the owners of farms and ranches on the one hand and the hunters on the other, the first from unjust depredationsby unscrupuloushunters and the second from unfair and exorbitantrental charges, creates an emergencyand an imperativepublic necessity and demands that the ConstitutionalRule requiring bills to be read on three severaldays be suspended,and that this Act take effect from the date of its assage, an;3;tci; hereby z;.e;;;tyd.' [Acts 1929, !lst Leg,,

. ',p. 242,

. The Article was again amended by the Second Called Session because it was feared the prior amendmentmight be construed to include the amount received by the owners of land for grazingHonorable H. E. Faubion - page 4

purposes to be within the twenty-five centsper acre, this reason being specifically stated in the emergencyclause of the Act of that session.

Thus it is observed that originallyand throughout the amendments to Article 1377, the Legislaturewas concerned with the protection of the privateproperty owners against trespass. By the very words of the Article, it has no application to lands rented or leased by the owner for hunting, fishing or campingprivileges for a specifiedamount. There is no language in the Article nor in any amendments thereto which indicatethat the Legislature intended It as a provision for game preservation,and consequently It is our belief that Article 1377 is not a "game law" as that term has been defined.

Your inquirywith respect to Article 480a of the Penal Code isadequately answered by a former opinion of this office wherein itwas held that Article 480awas not intendedas a '(provision

of the game laws of this State." Said Opinion No. O-4318,written to~theHonorable P.W. Minter, CountyAttorney of Jim Hogg County, ana dated January 21, 1942, is attached hereto for your information.

Having disposed of your questionsrelating to the identityand nature of Articles 1377 and 480,V.A.P.C., we proceed to your questions regarding the authority of a game and fish warden to collect the arresting officers'sfee which is placed to the credit of theDepartment Fund in the State Treasurywhen and if he shouldmake an arrest for violation of the saidArticles.

It might appear that Section 2 of Article 1377, supra, which reads "anyperson found upon the inclosed lands.

. . shallbe subject to arrest by any peace officer,and such arrest may be made without warrant of arrest" authorizes a game warden to make such an arrest. But that is not the case as game wardens have not been legally endowedwith the general authority of the ordinarypeace officer in this State, although they have substantialenforcementpowerswithin their own enforcement field.

We have carefullyreviewed all statutes, including Articles 212 - 217, Code of Criminal Procedure,pertaining to arrestswithout a warrant, Article 218 et seq. of said Code, pertaining to arrests under warrant, Articles 905 906, 978f, Vernon's Penal Code, and Articles 4018, 4021, 4024 of the Revised Civil Statutes,pertaining to the powers and duties of Deputy Game and Fish Wardens, and have been unable to find any statuteauthorizing suchdeputies to arrest eitherwith or without a warrant, a personwho violates eitherArticle 480a or Article 1377,V.A.P.C.HonorableH. E. Faubion - page 5 o-6916

As we have found that a Deputy Game and Fish Warden has no authority to arrest for violations~ of Articles 1377 and 480a,V.A.P.C., then it follows that he cannot collect an arresting fee for such an arrest.

Consequently,we answer each and all of your questions in the negative and trust that this opinionwill prove to be of some assistance to you.

Yours very truly
ATTORNEYGENERAL OF TEXAS

By s/JackK; Ayer Jack R. Ayer Assistant
JKA:zd:wc

APPROVED JAN 30, 1946 s/Carlos C. Ashley FIRST ASSISTANT ATTORNEYGENERAL Approved Opinion CommitteeBy s/BWB Chairman