April 22, 1987

EouorableDudleyHarrison Chairman Commicreeon Agricultureand Livestock Texas Rouse ofRepresentatives P. 0. Box 2910 Austin.Texas 78769
Dear RepresentariveHarrison: OpinionNo.JM-683
Re: Authority to conduct animal damage controlactivities

Inyour inquiry,you pose the f&lowing question:

Is the law creating the Texas Rodent and Predatory Animal Control Service, under the cooperative agreementwith the Federal government and the Texas A hM University System, the only authorityneeded to conduct animal damage control activities in the state and [are any] additional permits needed from the state to conduct animal hamage control? Article 192(b).V.T.C.S., Cooperation agencies In control of predatory aniaals pertinentpart:
State to cooperate between state and federal and rodents, provides in

Section 1. The State of Texas will cooperate throughThe Texas A 6M University System with the appropriate officers and agencies of the United States in the control of coyotes, mountain lions, bobcats, the Russian boar, and other predatory animals and in the control of prairie dogs, pocket gophers, jack rabbits. ground squirrels, rats and ocher rodentpests for theprotectionof livestock, food and feed supplies,cropsand ranges.

. . . . Cooperativeagreement

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Sec. 5. The Director of Extension of the System is hereby authorized and directed to execute a cooperativeagreementwith the appropriate officers or agencies of the United States for carrying out such cooperative work in predatory animal and rodent control in such manner and under such regulations asmay be stated in suchagreement.

. . . . Constructionwith other laws
Sec. 10. The provisions, restrictions and peualties of Section 72.005, Parks and Wildlife Code, shallnot be construedas applying tohunters and trappers under this Act, provided they are acting iu performance of duties contemplatedunder the terms of thisAct.
You direct our attention to 7 U.S.C.A.. seecion 426. which provides: The Secretary of Agriculture is authorized and

directed to conduct such investigations, experiments, and tests as he may deem necessary in order to determine, demonstrate, and promulgateachebest methods of eradication, suppression, or bringing under control on national forests and other areas of the public domain as well as on State. Territory, or privately owned lands of mountain lions, wolves, coyotes, bobcats, prairie dogs, gophers, ground squirrels, jack rabbits, and other animals injurious to agriculture, horticulture, forestry. animal husbandry, wild game animals, fur-bearing animals, and birds. and for the protection of stock and other domestic animals through the suppression of rabies and tularemia in predatory or orher wild animals; and co conduct campaigns for the destruction or control of such animals: Provided, That in carrying out the provisions of this section the Secretary of Agriculturemay cooperatewith States, individuals, and public and private agencies, organizations,and institutions. The circumstanceswhich give rise to your question are statedby you as follows:

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A questionhasbeen raised concerning the animal damage control program under the Texas Rodent and PredatoryAnimal Control Service. Is there a need for thisprogram to obtain a permit from the Texas Parks andWildlifeDepartment to conduct its animal damage controlactivities?
Under the Parks and Wildlife Code there are prowlsions for permits for scientific, soological, and propagation purposes (V.T.C.S. Parks and Wildlife Code, chapter 43. subchapter C) and permits to control protected species (chapter 43, subchapter H) which is for a private citizen experieucingdamage to crops or domesticanimals to get a pensic from a county judge. Neither permit applies to the activities of the Rodent and PredatoryAnimal Control Service.
In Attorney General OpinionM-1265 (1972), it was coucluded that "neither the Parks andWildlife Commissionnor any other State agency is authorized to issue licenseswhich would comewithin the exception provided in 16U.S.C., section 742j-l(b)(l)." The section in question prohibits any person in an aircraft from shooting or attempting to shoot for thepurpose of capturingor killing anybird, fish,or other animal. In addressing the matter of authority to grant a license under an exceptionco theprohibition,the followingwas stated in the opinion. The above quoted federal statute does not

authorize the Parks and Wildlife Commission or any ocher State agency to issue permits or licenses pursuant thereto. The statute does provide an exceptionwhereby it '.
. . shall not apply to any person if such person . . . is operating under a licenseor permit of. any State
. . . to administer or protect or aid in the administration. or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops . . .' Bowever, there is no authorityvested in any State agency to issue permits or licenses under this exception. Such authority must coae from the Legislature. While Article 192b. Vernon's Civil Sracutrs. does authorize cooperationwith the United States Department of the Interior by the State acting through the Agricultural and Mechanical College System of Texas in the controlof certainpredatory

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animals, it does not create a licensing procedure as contemplatedby the federalAct. The sicuacion you describe is different from the situation addressed in Opinion M-1265. In that case, the legislature had not enacted lagislatioanecessary forpersons to comewithin the exception allowed by the federal statute. In this case, the legislature has enactedarticle 192(b) in response to 7 U.S.C.A., section 426. The legislature, in section 5 of article 192(b) authorized and directed theDirector of theExtension System to

execute a cooperative agreement with the appropriate officers or agencies of the United States for carrying out such cooperative work in predatory animal and rodent control in suchmanner and under such regulations as may be stated iu such agreement. (Emphasissupplied). While a copy of such agreement was not furnished us, we will presume that such au agraement exists since the Director of the Extension System was authorized and directed CO execute oaa with the appropriate officials of the United States. Since we have uot been furnished with a copy of the agreement, we will presume that the provisions thereof are sot in conflictwith any state or federal law. The language contained in article 192(b) reflects the legislature's intentlou chat such agreement set forth the manner in which the program for predatory and rodent control should be conducted and the rules and regulations necessary for its operation. It is our 0piuG that the legislature intended that the program promulgated as the result of the agreementwould be sufficiently inclusive toprovide for the only authority needed to conduct predatory animal and rodent control in this state. Thus. the authority for the operation of the program stems from such agreement.
SUMMARY The legislature, in enacting article 192(b). V.T.C.S.. intended that theprogram for predatory animal and rodent control tobe promulgatedas the result of an agreementbetween the director of the Extension System of Texas AhM Univrrsicy and appropriateUnited States officialsbe sufficiently inclusive to provide the only authority needed for the operation of suchprogram.

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,Veryjzo&

JIM MATTOX AttorneyGeneral of Texas
JACKHIGHTOWER FirstAssistantAttorneyGeneral
MARY KELLER ExecutiveAssistantAttorney General
JDDGE ZOLLIE STRAlZP.T SpecialAssistantAttorueyGenera3
RICK GILPIN Chairman,OpinionCommittee Preparedby Tom G.Davis Assistant Attorney General

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