OFFICE OF



# THE ATTORNEY 

# GENERAL

AUSTIN, TEXAS

PRICE DANIEL ATTORNEY

GENERAL

Hon. Clayton Bray CountyAttorney Sutton county Sonora, Texas March 22, 1948
OpinionNo. V-522.
Re: The constitutionalityof Art. 923qa.,

Seca. 6 & 7i V.P.C.* relative to the forfeiture of a wholesale fur buyer’s license upon oonviction of the offense of purchasing : pelts from an unlicensed

trapper or fur buyer.
Dear Sir: Yoltrrequest for an opinion reads, in part:

“I have received a complaintwhich rather disconcerts nw. The complaint is ;zzded underArtiola 92Jqa, 6 6~7, Penal

. AThapertinent .Artible~~~require a 1icen.m,--to

broadly -apeairing, dealin for9; -xnd,, providesfor fine as.well aa forfeit

### ure of lfoenee to engage in ‘euohbooupation for one year from date of the oonviotion.

. “The aouroe of my oonoe’rn la that the forfeiture provieion le epplioeble‘toe Wholeeele Fur ,Buyer, who, himself, had hie own license,.

88 required by lew. Unfortunately the Wholesale Fur Buyer did not eacertan thet the Retail Fur Buyer; from whom i he bought, did not heve a lioense.

n

. . . “As I see the issue: when a parson has compliedwith every requirement to qualifp for a Wholesale Fur Buyer’s license,haa peid the fee required for the ,lioense,has had the sane issued to him, and is operating thereunder; is it in oonformltywith our Constitution that he have his lioense oanoelleaHon. Clayton Bray, Page 2, V-522.

because of the dereliction of some other person? \
"Article 923qa, 7, ,providesonly for a reducedmonetary punishmentbut makes cancellation of the licensemandatory. Assuming that the license cancellation featurewould be held to be only directory, should the duly

. licensedperson have to subject himself to thewhim and lottery of a pick-up J. P. jury?." The pertinent parts of Art. 923qa, V. P. C., with which we are concerned,read as follows:

"section 1. For the purpose of this Act, the followingwords, tems, and phrases are hereby aefinea: "(a) 'WholeaeleFUr Buyer'. A Wholesale Fur Buyer is any person who purchases' for himself or on behalf of another person,. the pelt or pelts of any of the fur-bearing animals of this State from a Retail Fur Buyer and/or from the Trapper. "(b) ..'Retail

Fur Buyer'. A retail Fur Buyer is any person who purchases the pelt or pelts of any of the fur-bearing animals of this State from the Trapper only. "(c) 'ResidentTrapper;Nonresideht Trapper.' A'trapper'is any-pe'rson who takes for the purpose of barter or sale, and who sells or offers for sale, the pelt or pelts of any of the fur-bearing animals of~this State, and for the, purpose of-this Act, trappers aTe hereby divided into two (2) classes, namely 'resident'end 'nonresident': Resident trappers are thosewho have, for a ~pericd of twenty-four.(24)months previous to their application for license, been bona fide residents of this State. All others are nonresident trappers. "Section 2. Before any pzrson shall op; erate in this State as a Wholesale Fur Buyer, Retail Fur Buyer, or Trapper, he shallbe required to obtain and have in his possession a valid license entitling him to the privilegesBon. Clayton Bray, Page 3, .V-522.

given in this.Aotand tu'no other p?Fvileges. Such license or licenses,shall.be~obttiihed from the Game .Fishand Oyster Comnission,~ or.from one of their authorizedagents. "(a) .A Whole~sa&e,Fur Buyer's lic~ense

may be, purchased for the sum of Twenty-FiveDollars ($25) and shell entitle the holder to ,theprivilege of purchasing the pelts bf fix-bearing enimals in this State from 'IMppers,Retail Fur Buyers,.and 'Wholeaale'Fur Buyers, an&the privilege of handling such pelts for shipment and sale."(b) A Retail Fur Buyer's licensemsy be I purohased'forthe sum of Five'.Dollars($5),aua shall,entitle the holder to the'privilegeof purchasing the pelts,of fur-bearing animals~~fro& the Trapper:only and ~handlidg-same ,forthe purpose of shipmentand sale. '.'. ..,.~ .,,'

~. wi.c)A resident trag$er;s~liomse r&-be purohasea,for the:sum of One.Dollsr ($l),and a nonresident trapper's lscens~e ‘maybe'purchssed ~~. for the sum of Two'HuuaredDollars ($200),and the respectivelicenses shell entitle the holder to sell~onlyhi&own catoh of the, pelts of furbearing animala of this State, whioh he basslaw-I fully taken. YZection 4.: .When'a$erson',firm, or oorporation operates as a Wholesale FurBuyer or as a Retail Fur Buyer, a lioense shall be required for each place of business and be publilcly&splayed in said places of ,buaihessat al and all such places of .businessshall be sub: ject to inspection,without warrant,'by any game and fish warden at any time. If a person operates as a Wholesale Fur Buyer; Retail Fur Buyer, or as a Trapper,'

other than at an establishment for which a license has been issued, he shall have on his person,whenever 'cbnductingsuch operations, the license required of him as'a Wholesale Fur-Buyer,Retai,lFur Buyer, or Trapper, and sny vehiclewhich he operates Shall be subject to inspection,without warrant, by any game and fish warden at all times that such vehicle is being used for the collection of the pelts of fur-bearing animls or.for.the purpose of transporting same.-,

Hon. ClaytonBray, Page 4, v-522.

Reiail Fur Buye;, or happer, as aefinea r, this Aot, without fir,st obtaining the license' required for the businessengaged in., nSeotion 7. Any person violating any urovision of thisAct shallbe deemed truiltv of a misdemeanor and upon cofiviction &all be fined in a sum not less than Twenty-fiveDolt lars ($25)nor more than Two Hundred Dollars ,($200),and any D8rson convictedunder any provision of the Actshall automatically forfeit any'lioensewhich he may hold under any provision of thisAct and shallnot be permitted to obtam any license provided for under this Act for a mrioa of one year from the date of his conviction." (Emphasis supplied) ~'
At the.outset it must be clearly understood that all wild fur-bearinganimals of this State are the property of the people of this State. 588. Art. 923ti, V,P.C.;,20 Tex. Jur. There being no question inyour request about this statute as applied to domesticated fur-bearinganimals, no opinion is expressed t~hereon., See 24 Am. Jur. 391, Game and Game Laws, Seoti6n 26.

A dear-cut~expression of the power of the State to regulete the taking and mrketing OS gae animals is Sound in Commonwealthv., Worth, 304Mass. 313; '23N.E. (2d) 891, as follows:

"In this,commonwealth (as it is~in Texas) the title to wild animals end game is in,the commonwealth in trust for the public, to be aevoted to the common welfare. ~.. It follows that wild animals, .exoeptinsofar ss,the Legislaturemay determine, are not the subject of private ownership. Regulations by way ofpermission of the right to hunt or take game, and restrictions as to thepossession or disposal of game,after it has been reduced to possession deprive no person of his property, because oneHon. Clayton Bray, Page 5, v-522.

who -takesor kills game had no previousright 'Ofproperty in it. - a' (Ptirenthetical~exDressio. n added) - See, also, H. D. Dodgen, Executive Secretary vs. Vincent Depuglio, deoided by the Supreme Court of Texas March 10, 1948.

The question, then, that you raise iswhether it is a reasonablegame regulation to require thatwholesale fur buyers purchase pelts only from licensed fur buyers or licensed trappers, ana to provide that anywholesale fur buyerwho is convicted of violating this provision shall, in addition to the statutory penalty, forfeit his license and shall not be permitted to obtain another license Sor a year. ,We shallbe concerned only with'the reasonableness of the forfeitureprovisionwith reference to the constitutionalityof the statute.

Smce the-State'unquestionablycan protect the public's~rights in Wild ge@? timugh its poli~;~p~we;; ;t can alsc.lioensethe right to deal in pelts. 5. IS the State can license such activity, it -can'piviie for the automatio'forfeitureor revocation of,such license IS the end to be served is the prDtection' of the game resources of our State, I$ requiring the purchase of pelts only from licensed trappers or'buyers,~ the Legislaturewas concernedwith the evil of trafficking in illicit or contrabandpelts. Statutoryprovision has~been made as to the conditionsunder which such fur-bearing animalsnay be t&en and there could be no greater deterrent to the illegal taking of fur-bearing game than a safeguardagainst its readymarketability. Unquestionably a sound safeguard is the statutoryrequirement that buyers be assured of the authoritative sanction of those fromwhom pelts are purchased. Doagen w Depuglio, supra.

To facilitate the identificationprocess,Art. 923qa, Sec. 4. V~.P.C.. has specificallyreauired retail and wholesale.Surbuyers to.display p; - ubliciy their licenses in their Dlaces of business. or if thev a0 .hbthave a Dlace of business, to,have,their iiceme on iheir Derson t*when-mm ever conducting suoh.operationsw. Unquestiouably when a retail fur buyer is selling pelts to a wholesale fur buyer he is conducting the operations of his business in such a fashion as would~require hti~to exhibit'his licenseor have it on his person,, We do not believe it is unreasonableto. ‘

..

Hon. Clayton Bray, Page 6, V-522.

require thewholesale fur buyer to ascertain,whether the person he is dealingwith has a license;particularly in view of the requirement of Publia display or possession of the license by operators. Thewholesaler is not being penalized for the dereliction of some other person; he is being penalized for his own aereliotion,being the crime of purchasingpelts iron an unauthorized trapper or buyer.

In your able brief, you have raise& the question of "guiltyknowledgew in connectionwith the criruinal prosecution for the offense of dealingwith an.tilicensed person; that is,whether it must be proved that thewholesaler knew he was purchasing from an unlicensed trapper or buyer. =.

It is unquestionably true end hes long been

. established that some criminal offenses require intent as an element df the offense,while other,criminal ofSenses a0 not require an intent. The statute setting out the criminal offense is determinat~ive in each instance in ascertainingwhether a ori@nal intent is an essential element bS that crime. Eughes v. .State,: 67 Tex. Crim.Rep. 333, 149 S. W. 173; Gray v. State, 77 Tex. Crim. Rep. 221, 178 S. W. 337; Hargr0ve.v. United ,states,67 F (2d) 820; 12 Tex. aur. 262.

An offenseprdsecutea udderArt. 923qa?V.P.C., is a criminal offense that does not require crimmalintent as an essential element of the offense. We do think, however, that the facts you have presented raise a possible defense on the part of thewholesaler of mistake of feet, available underArt. 41,,V.P.C., as.Sollows:

"If a person laboring under e mistake as to a particular fact shall do, an act which would otherwise be criminalhe is guilty of no offensebut themistake of factwhich would excusemust be such that the person .soacting under a mistake would have been excusablehad his conjecture as to the fact been correct,landitmust also be suchmistake 8s does not arise from a want of proper care on the pa t the person so acting". (Emphasisaaieayf
We are, of course, unable to saywhether the wholesaler in your particular case exercised proper care to ascertain the facts.. As to what would.amount to proper care, this is a fact question to be determined in the lightHon. Clayton aray, Page 7, V-522.

of all the circutnstanoes surroundingeach individual case.
In connectionwith your inquiry,we wish also to point out that the forfeitureprovision is not direct- =, but ismandatory, as you have observed. The license is autonisticallx

suspendedby reason of such conviction without any further aotion or judgment by the court being

See Galloway v. State, 125 Tex. Cr. R. 524; Z~c?Z?yi2a) 89 holding that automatic forfeiture of huntinq licenses'upon conviction of violating any provision of the game laws, as provided in Article 893, V.P.C., is constitutional.

Art. 92&a, Sets. 6 & 7, V. P. C., wherein provision is meae for the forfeiture of a wholesale fur buyer's license upon conviction of purchasing pelts.from an unlicensed trapper or fur buyer, is constitutional. Very truly yours, ATTORNEY GENERAL OF !tEXAS

BY

APPROVED:

.

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