OFFICE OF 

THE ATTORNEY GENERAL 

AUSTIN, TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

Hon. Clayton Bray 

County Attorney 

Sutton county 

Sonora, Texas 

March 22, 1948 

Opinion No. V-522. 

Re: The constitutionality of 

Art. 923qa., Seca. 6 & 7 i 

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: 

Yoltr request for an opinion reads, in part: 

“I have received a complaint which 

rather disconcerts nw. The complaint is 

;zzded under Artiola 92Jqa, 6 6~ 7, Penal 

. 

ATha pertinent .Artible~~~require a

1icen.m ,--to broadly -apeairing,deal in for 9 ; 

-xnd,, providesfor fine as.well aa forfeiture of lfoenee to engage in ‘euoh booupation 

for one year from date of the oonviotion. . 

“The aouroe of my oonoe’rn la that the 

forfeiture provieion le epplioeble ‘to e 

Wholeeele Fur ,Buyer, who, himself, had hie 

own license,. 88 required by lew. Unfor tunately the Wholesale Fur Buyer did not eacerta i n thet the Retail Fur Buyer; from whom 

he bought, did not heve a lioense. 

n . . . 

“As I see the issue : when a parson 

has complied with 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 oonformlty with our Constitution that he have his lioense oanoellea 
Hon. Clayton Bray, Page 2, V-522. 

because of the dereliction of some other person? \ 

"Article 923qa, 7, ,provides only for a 

reduced monetary punishment but makes cancellation of the license mandatory. Assuming 

that the license cancellation feature would 

be held to be only directory, should the duly 

. licensed person have to subject himself to 

the whim 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 following words, tems, and phrases 

are hereby aefinea: 

"(a) 'Wholeaele FUr 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) 'Resident Trapper; 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 those who 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 shall be required to obtain and have in his possession 

a valid license entitling him to the privileges 
Bon. Clayton Bray, Page 3, .V-522. 

given in this.Aot and tu'no other p?Fvileges. 

Such license or licenses,shall .be ~obttiihed from 

the Game .Fish and Oyster Comnission,~ or. from 

one of their authorized agents. 

"(a) .A Whole~sa&e,Fur Buyer's lic~ense may 

be, purchased for the sum of Twenty-Five Dollars 

($25) and shell entitle the holder to ,the privilege 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 license msy be 

I 

purohased'for the sum of Five'.Dollars ($5),aua 

shall,entitle the holder to the'privilege of 

purchasing the pelts,of fur-bearing animals~~fro& 

the Trapper:only and ~handlidg-same ,for the purpose of shipment and 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 ‘may be'purchssed ~~. 

for the sum of Two'Huuared Dollars ($200), and 

the respective licenses shell entitle the holder 

to sell~only hi&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 ,buaihess at al 

and all such places of .business shall 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 'cbnducting such 

operations, the license required of him as' a 

Wholesale Fur-Buyer, Retai,l Fur Buyer, or Trapper, and sny vehicle which 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. Clayton Bray, Page 4, v-522. 

Reiail Fur Buye;, or happer, as aefinea 

r, 

this Aot, without fir,st obtaining the license' 

required for the business engaged in., 

nSeotion 7. Any person violating any 

urovision of this Act shall be deemed truiltv 

of a misdemeanor and upon cofiviction &all be 

fined in a sum not less than Twenty-five Dolt 

lars ($25) nor more than Two Hundred Dollars 

,($200), and any D8rson convicted under any provision of the Actshall automatically forfeit 

any'lioense which he may hold under any provision of this Act and shall not 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-bearing animals 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 in your request about this 

statute as applied to domesticated fur-bearing animals, 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 Commonwealth v., Worth, 304 Mass. 313; '23 N.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, .exoept insofar ss,the Legislature may determine, are not the subject of 

private ownership. Regulations by way ofpermission of the right to hunt or take game, and 

restrictions as to the possession or disposal 

of game, after it has been reduced to possession 

deprive no person of his property, because one 
Hon. Clayton Bray, Page 5, v-522. 

who -takes or kills game had no previous right 

'Of property 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 is whether 

it is a reasonable game regulation to require thatwholesale fur buyers purchase pelts only from licensed fur buyers or licensed trappers, ana to provide that any wholesale 

fur buyer who 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 shall be concerned only with'the reasonableness of the forfeiture provision with reference to the constitutionality of the statute. 

Smce the-State'unquestionably can protect the 

public's~rights in Wild ge@? timugh its poli~;~p~we;; ;t 

can alsc.lioense the right to deal in pelts. 

5. IS the State can license such activity, it -can'piviie 

for the automatio'forfeiture or 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 Legislature was 

concerned with the evil of trafficking in illicit or contraband pelts. Statutory provision has ~been made as to 

the conditions under which such fur-bearing animals nay 

be t&en and there could be no greater deterrent to the 

illegal taking of fur-bearing game than a safeguard against 

its ready marketability. Unquestionably a sound safeguard 

is the statutory requirement that buyers be assured of the 

authoritative sanction of those from whom pelts are purchased. Doagen w Depuglio, supra. 

To facilitate the identification process, Art. 

923qa, Sec. 4. V~.P.C.. has specifically reauired retail 

and wholesale.Sur buyers to.display p 

; - ubliciy their licenses 

in their Dlaces of business. or if thev a0 .hbt have 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 license or have 

it on his person,, We do not believe it is unreasonable to 
. 

‘. . 

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

require the wholesale fur buyer to ascertain,whether 

the person he is dealing with has a license; particularly in view of the requirement of Publia display 

or possession of the license by operators. The wholesaler is not being penalized for the dereliction of 

some other person; he is being penalized for his own 

aereliotion, being the crime of purchasing pelts iron 

an unauthorized trapper or buyer. 

In your able brief, you have raise& the question of "guilty knowledgew in connection with the criruinal prosecution for the offense of dealing with an.tilicensed person; that is, whether it must be proved that 

the wholesaler 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 ascertaining whether 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 offense prdsecutea udder Art. 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 the wholesaler of mistake 

of feet, available under Art. 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 criminal he is 

guilty of no offense but the mistake of 

fact which would excuse must be such that 

the person .so acting under a mistake would 

have been excusable had his conjecture as 

to the fact been correct, land it must also 

be such mistake 8s does not arise from a 

want of proper care on the pa t the person so acting". (Emphasis aaieayf 

We are, of course, unable to say whether 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 light 
Hon. Clayton aray, Page 7, V-522. 

of all the circutnstanoes surrounding each individual case. 

In connection with your inquiry, we wish also 

to point out that the forfeiture provision is not direct- 

=, but is mandatory, as you have observed. The license 

is autonisticallx suspended by 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: . 

DJC:rt:wb:jmc