.

F EXAS

Honorable John W. Berry County Attorney Karnes County Karnes Citv. Texas 78118 Opinion No. M- 770 Re: Right topossession of adeer killed UDon land of anotherwithout his consent. Dear Mr. Berry:

YOU have requested our opinion on the following matter: "X,a trespasser, kills adeer onA's landwithout A's consent. However, X kills the deer within legal hours, has ahunting license, tags the deer with his own tag, all other details concerning the hunt are within the law, except the fact thatX has no permission to hunt onA'S land. Xpays a fine for trespassing, but claims that he is entitled to keep the deer. A, the landowner, claims the deer belongs to him since itwas killed on his property. 2, the game warden, contends that thedeer belongs to the State (tobe given to a charitable organization). TO WHOM DOES THE DEER BELONG, X,A, OR 21" you further advise us that this is not ahypothetical question in thatyou have been confronted with this question several times, and thatyour designation ofparties is toprotect the identities of persons concerned. "Theownership of wild game, so far as it is capable of ownership, is in the State for the benefit of all itspeople in common, and it iswithin the police power of the State Legislature, subject to constitutional restrictions tomake such general or special laws asmay be reasonably necessary for the protection of public rights in such game, and within such power is the right to regulate themethod of taking or hunting game in the state." Dobie v. State, 48 S.W.2d 289 (Tex.Crim., 1932).

-3755-Honorable John W. Berry, Page 2 (M-770)

Ownership of all such animals isdeclared by statute to be in the State of Texas, as follows: "Allwild animals, wild birds, andwild fowlwithin the borders of this State are hereby declared tobe the property of thepeople of this State." Article 871a,Vernon's Penal Code.
You state that it is the contention of the game warden that the deer inquestion belongs to the State and that it should be given toa charitable organization. The statutes provide certainmethods,,means and conditions under which wild game may be taken and the State thereby divested of its ownership therein. The statutes also provide for the disposition of game taken in violation thereof. Therefore, todetermine theperson entitled to the possession of thedeer inquestion wemust look to such statutes to see if the disposition thereof is specifically provided for. Article 897,Vernon's Penal Code, provides, inpart as follows: "Allwild birds, wild fowl, orwild game animals or parts thereof, which have been killed, taken inany way, shipped, held in storage, or found in apublic eating place, contrar rovisions of this
widows and orphans." (Emphasis-added). - The reference to "this chapter" is to Chapter 6of Title 13 of the Penal Code of the State of Texas, 1925. Such chapter covers Articles 871 through 978n-2 ofVernon's Penal Code. Karnes County is under the "Vniform Wildlife Regulatory Act". (Article 978j-1, Sec. 1,Vernon's Penal Code). Section 2 of thisAct specifically provides, inpart, as follows:

. . .it shall be unlawful for any person to hunt, take, kill or possess or attempt to hunt, take or kill any game bird or game animal in any county or in any portion of any county at any time,
. . Dunless the owner of the land or thewater, or his duly authorized agent shall give consent thereto."

-3756-Honorable John W. Berry, Page 3 (M-770)

Your stated facts show that the owner of the land had not given his consent to the killing of this deer on his property; therefore, the killing of the deer was inviolation ofArticle 9783-l. The deer having been killed inviolation ofArticle 978j-1 was, therefore, killed contrary to the provisions of "this chapter," as referred to inArticle 897 and should be disposed of inaccordance with the provisions of saidArticle 897, towit, '1.. .by donating same to charitable institutions, hospitals, orneedy widows and orphans." SUMMARY Deer killed on land of another without consent of landowner or his agent in a county under Uniform Wildlife Regulatory Act should be released to game warden for charitable purposes in accordance with provisions of Article 897,VeAnon's Penal Code. tfully submitted,

Prepared by Harold G. Kennedy Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman Roger Tyler Roland Allen Malcom Quick Jack Sparks MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOIA WHITE First Assistant -3757-