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### HE A~~-oRNEY GENERAL OF WAS

CRAWFORD c.MARTIX AUSTIIS. TEXAS 7Q711 *x-rOHNEY carGuER*l. February2,1972

Mr. James U.Cross Executive Director Parks andWildlife Department John H. Reagan Building Austin, **Texas** 78701 Opinion No.M-1062
Re: Whether Article 880d, Vernon's Penal Code, applies to the use of exotic species of falDear Mr. Cross: cons. You have asked our opinion whether the provisions of Article 880d,Vernon's Penal Codel- inparticular Sections 2, 3, 4, 7,and 9of that article - apply to falconers using exotic species of raptors. This opinion isrestricted to the question asked. The capture,possession, and use of raptors or birds of prey is regulated byArticle 880d,which was enacted by the Sixty-second Legislature. Under Sections 1 (b),1 (c), and 6, theTexas Parks andWildlife Department (hereinafter "Department") may prescribe reasonable rules and regulations to carry out theprovisions of the act. Pursuant to this authority, the Department has issued the "Texas Parks and Wildlife Department Policy on the Taking and Possession of Rantors forFalconry Purposes as adopted September 30, 1971." This regulation in Section 1.03 defines *raptor" **as** n0 o . anymember of the Orders Falconiformesand Strigiformes" and "falconry" as *I.
. .the utilization of anymember of the Orders Strigiformes or Falconiformes for the taking ofwild birds orwild mammals during any prescribed open seasons." No definition is given in either the Department regulation or the statute-to the term "native." This term is defined byWebster's Third New International Dictionary as I .grown,produced, oreoriginating in aparticular place &'a region or country): not foreign or exotic.
. *grown, produced, or originating-in the-vicinity: not transported

1All statutes mentioned areparts ofVernon's Penal Code unless otherwise indicated. ThisArticle was enacted by Acts 62nd Leg., R.S., 1971, S.B. 372, ch. 176,p. 987.
-5192-Honorable James U. Cross, page 2 (M-1062)

from adistant region. 0 .living or growning naturally in a given region.,0 0 an Among the definitions of "exotic: inWebster's Third New International Dictionary is 'I00 Ofrom another country: not native to theplace where found. o o ." This office is informed that the Department defines the term "exotic species of raptors" tomean those raptors **not** native to Texas. While penal laws generally are tobe construed strictly, they are not construed so strictly as to defeat the~legislative intent when the intent isplainly manifest or is fairly deducible from the statutory language, 53Tex.Jur,Zd 304, Statutes, Section 198. Criminal laws should be construed according to theplain import of the language used. Article 7. A penal statute should be given a reasonable and common sense interpretation, Biszelle v. State, 116 S,W,2d 385 (Tex. Crim., 1938). The plain import of Article 880d is to regulate the sport of falconry, With the exception of specific references to native raptors in Section 1p thevarious provisions of the statute make no express distinction between.native~-land-exotic species of raptors, Section 5,~,whichretains,asproperty of,, the people of this state all raptors captured;takenb or possessed in this state actually is not limited by its terms to native raptors; but only~wild animals, birds, and fowlswithin the borders of the state are made theproperty of the ~people. Article 871a, Thus Section 5 can apply only to native raptors. Section 3 is the only authority inTexas law. bywhich anyperson may hunt with a raptor, whether native or exotic; The provisions in Section 3 for anonresident's hunting license and in Section 7 for a falconer's permit for a nonresident who establishes.permanent Texas residence and who holds raptors under a'permit in another,state makesclear that the legislature intended to regulate thepossession and use of exotic aswell as native raptors, This view is strengthened by the reference in Section 6to those raptors classified by the United States Bureau of Sports, Fisheries, andWildlife as rare or endangered, Consequently, it is OUT opinion that Article 880d applies to the possession and use of exotic as well asnative raptors, except for those provisions of Section 1which apply expressly to native raptors and Section 5.

-5193-Honorable James U. Cross, page 3

CONCLUSION Theprovisions ofArticle 880d,Vernon's Penal (M-1062)

Code, apply to the possessionand use~.ofexotic as well as native species of raptors, except that Section 1 insofar as it refers to native raptors and Section 5apply only to native raptors;

**ney** General **of** Texas Prepared by Roland Daniel Green, III Assistant Attorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W.E. Allen, Co-Chairman Sally Phillips Jim Maxwell Ken Nordquist Linward Shivers
SAM MC DANIEL Staff Legal Assistants
ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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