April 22, 1987
Eouorable Dudley Harrison Opinion No.JM-683
Chairman
Commicree on Agriculture and Re: Authority to conduct animal
Livestock damage control activities
Texas Rouse of Representatives
P. 0. Box 2910
Austin. Texas 78769
Dear Representarive Harrison:
In your inquiry, you pose the f&lowing question:
Is the law creating the Texas Rodent and
Predatory Animal Control Service, under the
cooperative agreement with the Federal government
and the Texas A h M University System, the only
authority needed to conduct animal damage control
activities in the state and [are any] additional
permits needed from the state to conduct animal
hamage control?
Article 192(b). V.T.C.S., Cooperation between state and federal
agencies In control of predatory aniaals and rodents, provides in
pertinent part:
State to cooperate
Section 1. The State of Texas will cooperate
through The Texas A 6 M University System with the
appropriate officers and agencies of the United
States in the control of coyotes, mountain lions,
bobcats, the Russian boar, and other predatory
animals and in the control of prairie dogs, pocket
gophers, jack rabbits. ground squirrels, rats and
ocher rodent pests for the protection of livestock,
food and feed supplies, crops and ranges.
. . . .
Cooperative agreement
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Houorable Dudley Harrison - Page 2 (a-683)
Sec. 5. The Director of Extension of the System
is hereby authorized and directed to execute a
cooperative agreement with the appropriate officers
or agencies of the United States for carrying out
such cooperative work in predatory animal and
rodent control in such manner and under such
regulations as may be stated in such agreement.
. . . .
Construction with other laws
Sec. 10. The provisions, restrictions and
peualties of Section 72.005, Parks and Wildlife
Code, shall not be construed as applying to hunters
and trappers under this Act, provided they are
acting iu performance of duties contemplated under
the terms of this Act.
You direct our attention to 7 U.S.C.A.. seecion 426. which
provides:
The Secretary of Agriculture is authorized and
directed to conduct such investigations, experi-
ments, and tests as he may deem necessary in order
to determine, demonstrate, and promulgate ache best
methods of eradication, suppression, or bringing
under control on national forests and other
areas of the public domain as well as on State.
Territory, or privately owned lands of mountain
lions, wolves, coyotes, bobcats, prairie dogs,
gophers, ground squirrels, jack rabbits, and other
animals injurious to agriculture, horticulture,
forestry. animal husbandry, wild game animals,
fur-bearing animals, and birds. and for the
protection of stock and other domestic animals
through the suppression of rabies and tularemia in
predatory or orher wild animals; and co conduct
campaigns for the destruction or control of such
animals: Provided, That in carrying out the
provisions of this section the Secretary of
Agriculture may cooperate with States, individuals,
and public and private agencies, organizations, and
institutions.
The circumstances which give rise to your question are stated by
you as follows:
p. 3163
Honorable Dudley Harrison - Page 3 (JM-683)
A question has been raised concerning the animal
damage control program under the Texas Rodent and
Predatory Animal Control Service. Is there a need
for this program to obtain a permit from the Texas
Parks and Wildlife Department to conduct its animal
damage control activities?
Under the Parks and Wildlife Code there are
prowlsions for permits for scientific, soological,
and propagation purposes (V.T.C.S. Parks and
Wildlife Code, chapter 43. subchapter C) and
permits to control protected species (chapter 43,
subchapter H) which is for a private citizen
experieucing damage to crops or domestic animals to
get a pensic from a county judge. Neither permit
applies to the activities of the Rodent and
Predatory Animal Control Service.
In Attorney General Opinion M-1265 (1972), it was coucluded that
"neither the Parks and Wildlife Commission nor any other State agency
is authorized to issue licenses which would come within the exception
provided in 16 U.S.C., section 742j-l(b)(l)." The section in question
prohibits any person in an aircraft from shooting or attempting to
shoot for the purpose of capturing or killing any bird, fish, or other
animal. In addressing the matter of authority to grant a license
under an exception co the prohibition, the following was stated in the
opinion.
The above quoted federal statute does not
authorize the Parks and Wildlife Commission or any
ocher State agency to issue permits or licenses
pursuant thereto. The statute does provide an
exception whereby it '. . . shall not apply to any
person if such person . . . is operating under a
license or permit of. any State . . . to administer
or protect or aid in the administration. or
protection of land, water, wildlife, livestock,
domesticated animals, human life, or crops . . .'
Bowever, there is no authority vested in any State
agency to issue permits or licenses under this
exception. Such authority must coae from the
Legislature.
While Article 192b. Vernon's Civil Sracutrs.
does authorize cooperation with the United States
Department of the Interior by the State acting
through the Agricultural and Mechanical College
System of Texas in the control of certain predatory
p. 3164
Honorable Dudley Harrison - Page 4 (J'M-683)
animals, it does not create a licensing procedure
as contemplated by the federal Act.
The sicuacion you describe is different from the situation
addressed in Opinion M-1265. In that case, the legislature had not
enacted lagislatioa necessary for persons to come within the exception
allowed by the federal statute. In this case, the legislature has
enacted article 192(b) in response to 7 U.S.C.A., section 426.
The legislature, in section 5 of article 192(b) authorized and
directed the Director of the Extension System to
execute a cooperative agreement with the appro-
priate officers or agencies of the United States
for carrying out such cooperative work in preda-
tory animal and rodent control in such manner and
under such regulations as may be stated iu such
agreement. (Emphasis supplied).
While a copy of such agreement was not furnished us, we will
presume that such au agraement exists since the Director of the
Extension System was authorized and directed CO execute oaa with the
appropriate officials of the United States. Since we have uot been
furnished with a copy of the agreement, we will presume that the
provisions thereof are sot in conflict with any state or federal law.
The language contained in article 192(b) reflects the legislature's
intentlou chat such agreement set forth the manner in which the
program for predatory and rodent control should be conducted and the
rules and regulations necessary for its operation. It is our 0piuG
that the legislature intended that the program promulgated as the
result of the agreement would be sufficiently inclusive to provide for
the only authority needed to conduct predatory animal and rodent
control in this state. Thus. the authority for the operation of the
program stems from such agreement.
SUMMARY
The legislature, in enacting article 192(b).
V.T.C.S.. intended that the program for predatory
animal and rodent control to be promulgated as the
result of an agreement between the director of the
Extension System of Texas AhM Univrrsicy and
appropriate United States officials be sufficient-
ly inclusive to provide the only authority needed
for the operation of such program.
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Honorable Dudley Barrisoa - Page 5 (JM-683)
,Veryjzo&
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JDDGE ZOLLIE STRAlZP.T
Special Assistant Attoruey Genera3
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3166