^ . 

Honorable H. E. Faubion 

Assistant Executive Secretary 

Game, Fish and Oyster Commission 

Austin, Texas 

Dear Sir: Opinion NO. o-6936 

Re: Whether Articles 480a and 1377, 

V.A.P.C., are game laws and related questions. 

We have received your letter of November 15, 1945, 

which Is quoted below: 

"1 . Is Article 1377, Penal Code, 1925, a 

'game law' the enforcement of which is the duty 

of the game, Fish and Oyster Commission as well 

as other officers? 

"2 . If you answer the first question in the 

negative, then is the Game, Fish and Oyster Commission authorized to collect the arresting officer's 

fee when an arrest is made for violation of Article 

1377, P. C. 1925 by a game and fish warden and 

place such fee to the credit of the Department fund 

in the State Treasury? 

“3 . Is Article 48Oa, P. C. 1925, providing 

'Any person who 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 One Hundred Dollars,' a 'game law' 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 

Commisslon authorized to collect the arresting 

officer's fee when an arrest is made for violation 

of Article 48Oa, P. C. 1925 by a game and fish warden, and place such fee to the credit of Department 

funds in the State Treasury?" 

As specifically deslgnated In Article 4018, V.A.C.S, ‘8 

and Articles 905 and 978f of the Penal Code, It is the duty and 
Honorable 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 "game laws" and are adequately described by the Georgia Court of Appeals in the case of Poulos v. 

State (174 S.E. 253) In the following language: 

"'Game laws' is a title commonly used to 

describe a series of statutes, which have not 

a loglcally connected design, but of which the 

general aim is to protect from unauthorized pursuit and killing certain birds and animals ferae 

na'curae which are fit for human food. Bouvier's 

Law Dictionary. Black's Law Dictionary defined 

them to be 'Laws passed for the preservation of 

game. They usually forbid the killing of specified game during certain seasons.'"~ 

The most recent official revision of the Criminal 

Statutes of this State took place In 1925, when, at the Regular 

Session of the Thirty-Ninth Legislature, the Penal Code of Texas 

was officially adopted. At that time, Article 1377 was placed 

in Chapter Three entitled "Malicious Mischief" under Title 17 

of the Code, labeled "Offenses Against Property." Whereas in 

the entirely separate dLvislon of the Code, namely, Chapter 

Six entitled "Game, Fish and Oysters" under Title 13, "Offenses 

Against Public Property," the statutes known as game laws, as 

welI as others pertaining to the duties and authority of the 

Commission, were listed. The arrangement of the statutes in 

such manner, although not a controlling consideration, was 

indicative of the Legislative intent to exclude Article 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 the First Called Session and again in the 

Second Called Session, and it presently reads as follows: 

"Article 1377. Entering inclosed land to 

hunt or fish. 

"Whoever shall enter upon the lnclosed land of 

another without the consent of the owner, proprietor 

or agent in charge thereof, and therein hunt with 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 shall be 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 license 
Honorable Ii. E. Faublon - naae 7. o-6916 

and the right to hunt in the State of Texas for a 

period of one year from the date of his conviction. 

By 'inclosed lands' is meant such lands as are in 

use for agriculture or grazing purpose3 or for any 

other purpose, and inclosed by any structure for 

fencing either of wood or iron or combination thereof, or wood and wire, or partly by water or stream, 

canyon, brush, rock or rocks, bluffs or island. 

Proof of ownership or lease may be made by parol 

testimony. Provided, however, that this Act shall 

not apply to inclosed lands which 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 every means has received or contracted to receive more than twentyfive cents per acre per year or any part of a year 

for such hunting fishing or camping privileges, or 

where more than $4.00 per 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 another without the owner's consent, shall be subject to arrest by any peace officer, and such arrest 

may be made without warrant of arrest. '(As amended 

Acts 1929 41st Leg., 1st C.S., p. 242, ch. 100 

Acts, 1929: 41st Leg., 2nd C.S., p. 41, ch. 26.)' 

The emergency clause of the Act amending Article 1377, 

enacted by 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 adequate protection of the owners of 

farms and ranches on the one hand and the hunters on 

the other, the first from unjust depredations by unscrupulous hunters and the second from unfair and exorbitant rental charges, creates an emergency and an 

imperative public necessity and demands that the Constitutional Rule requiring bills to be read on three 

several days 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 amendment might be construed to 

include the amount received by the owners of land for grazing 
Honorable H. E. Faubion - page 4 

purposes to be within the twenty-five cents per acre, this 

reason being specifically stated in the emergency clause of 

the Act of that session. 

Thus it is observed that originally and throughout 

the amendments to Article 1377, the Legislature was concerned 

with the protection of the private property 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 camping privileges for a specified amount. There 

is no language in the Article nor in any amendments thereto 

which indicate that 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 inquiry with respect to Article 480a of the Penal 

Code is adequately answered by a former opinion of this office 

wherein it was held that Article 480a was not intended as a 

'(provision of the game laws of this State." Said Opinion No. 

O-4318, written to~the Honorable P. W. Minter, County Attorney 

of Jim Hogg County, ana dated January 21, 1942, is attached 

hereto for your information. 

Having disposed of your questions relating to the 

identity and 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's fee which 

is placed to the credit of the Department Fund in the State 

Treasury when and if he should make an arrest for violation 

of the said Articles. 

It might appear that Section 2 of Article 1377, supra, 

which reads "any person found upon the inclosed lands. . . 

shall be 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 endowed with the general 

authority of the ordinary peace officer in this State, although 

they have substantial enforcement powers within their own enforcement field. 

We have carefully reviewed all statutes, including 

Articles 212 - 217, Code of Criminal Procedure, pertaining to 

arrests without 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 

statute authorizing such deputies to arrest either with or without a warrant, a person who violates either Article 480a or 

Article 1377, V.A.P.C. 
Honorable H. 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 opinion will prove 

to be of some assistance to you. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Jack K; Ayer 

Jack R. Ayer 

Assistant 

JKA:zd:wc 

APPROVED JAN 30, 1946 

s/Carlos C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman