October 2. 1975

The Honorable Bennie Bock II Opinion No. H- 705 Chairman, Liquor Regulation Committee House ofRepresentatives Re: Whether alligators may P. 0. Box 2910, Capitol Station be sold in Texas. Austin, Texas Dear Representative Bock: As Chairman ofthe Liquor Regulation Committee, you have requested our opinion concerning whether aperson who has raised alligators for twenty-five years may lawfully sell them. You have indicated that the request is within thejurisdiction ofthe Committee and is asked onits behalf. You note that article 978j-3; Penal Auxilary Laws, which prohibited the sale ofalligators after January 1. 1970, was repealed by Senate Bill 179 ofthe 64th Legislature. Acts 1975, 64th Leg., ch. 219. p. 561. However, alligators have been designated bythe Parks and Wildlife Department as an endangered species andare therefore protected by sections 43.021, et seq. and 

### 68.001, & sx. ,Parks andWildlife Code. (All references to sections are tothe Parks and Wildlife Code unless otherwise noted. ) Section 68.015(a) provides:

No person may possess, sell, distribute, or offer or advertise for sale endangered fish or wildlife unless the fish or wildlife have been lawfully born and raised in captivity for commercial purposes under the provisions ofthis chapter or federal law. Section 68.007 provides:

No person may possess endangered fish or wildlife for the purpose ofpropagating them for sale unless he has first acquired a commercial propagation permit issued by the department under this chapter.

p. 3048The Honorable Bennie Bock II, page 2 (H-705)

Thus, as ageneral matter, aperson may sell only those alligators which have been lawfully born and raised incaptivity. Additionally, a person may not lawfully propagate an endangered species for commercial purposes unless he obtains acommercial propagation permit. However, section 68.020 provides in part: (a) This chapter does notapply to:

. . . (6) animals, fish, or fowl that are privately owned or to the management or taking ofprivately owned animals, fish, or fowl by the private owners. Inour view this exemption is ambiguous. We do notbelieve that the Legislature intended to exempt all privately owned animals from the provisions ofchapter ~68without regard towhen they became privately owned. Were section 68.020(a)(6) construed so broadly, once aperson lawfully obtains ananimal of an endangered species under section 68.006 and the animal thus becomes privately owned, nopermit would be necessary for commercial propagation. Such aconstruction would rendersthe permit provisions of section 68.007 almost entirely fruitless, for apermit would be required for only thepropagation ofpublicly owned animals. The courts will notconstrue a statute so as to render it “fruitless, futile, meaningless, purposeless, or useless, ifthe language can be otherwise construed.” 53 Tex. Jur. Zd, Statutes, $165 and authorities cited therein. Accordingly, in our opinion the Legislature intended section 68.020(a)(6) to constitute agrandfather cl.ause which exempts only those animals which were privately owned when that section original,ly took effect, or August 27, 1973. See, Acts 1973. 63rd Leg., ch. 126, pa 268, formerly codified as article 913a, Penal Auxilary ,Laws. Inaddition, we believe the exemption is personal and relates only tothe owner at that time. Prior toAugust 27, 1973, these exempted animals could have been sold, managed, or taken by their owner without apermit andwithout regard towhether they were born and raised in captivity. However, these privately owned animals may not beutilized for commercial propagation subsequent toAugust 27, 1973, without acommercial propagation permit. Inaddition, protected animals taken from thewild after August 27, 1973. may notbe sold. Sec. 68. 015(a); E. sec. 43.021, et seq., regarding the legal capture ofprotected animals: see also sec. 61.021.

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The Honorable Bennie Bock II, page 3 (H-705)

Inour opinion aperson may lawfully sell alligators which he privately owned prior toAugust 27, 1973. Alligators which were notprivately owned prior toAugust 27, 1973. may notbe sold unless they were born and raised pursuant to acommercial propagation permit or under authority offederal law. We do not consider the effect offederal legislation prohibiting the interstate sale ofendangered species. See, 16U.S. C. §1538; but see, proposed Dept. ofInt. Reg. 40 Fed. Reg., no. 131, p. 28712 (1975). SUMMARY A person may lawfully sell alligators which he privately owned prior toAugust 27, 1973. Alligators which were notprivately owned prior toAugust 27, 1973, may notbe sold unless they were born and raised incaptivity pursuant to acommercial propagation permit or under authority offederal law.

// Attorney Gem ral ofTexas APPROVED: u

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chairman Opinion Committee

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