The Attorney General of Texas
July 9, 1982
MARK WHITE
Attorney General
Mr. Charles D. Travis opinion No. MW-492
Supreme Court Building
Executive Director
P. 0. Box 12546
Austin. TX. 76711. 2546 Texas Parks and Wildlife Department Re: Disposition of fines
5121475-2501 4200 Smith School Road collected pursuant to sections
Telex 9101674.1367 Austin, Texas 70744 26.212 and 26.213 of the Texas
Telecopier 512/475-0266 Water Code
1607 Main St., Suite 1400
Dear Mr. Travis:
Dallas, TX. 75201-4709
2141742-6944 On behalf of the Texas Parks and Wildlife Commission you ask
about the proper disposition of fine monies collected pursuant to
section 26, subchapter F of the Texas Water Code when the arresting
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793 officer is a game warden.
9151533.3464
Section 26, subchapter F of the Water Code deals with the
criminal prosecution of violators under the Water Quality Control Act.
1220 Dallas Ave.. Suite 202
Houston. TX. 77002.6966
The policy of the act and its purpose are stated in section 26.003.
7131650-0666 Among other things, the policy and purpose are:
to maintain the quality of water in the state
606 Broadway. Suite 312 consistent with the public health and enjoyment
Lubbock, TX. 79401.3479
6061747.5236
[and1 the propagation and protection of
terrestrial and aquatic life.... (Emphasis
added).
4309 N. Tenth. Suite 6
McAllen, TX. 76501-1665 Section 12.107 of the Texas Parks and Wildlife Code reads:
5121662.4547
(a) A justice of the peace, clerk of any
200 Main Plaza. Suite 400 court, or any other officer of the state who
San Antonio, TX. 762052797 receives a fine imposed by a court for a violation
5121225-4191 of any law relating to the protection and
conservation of wild birds, wild fowl, wild
An Equal Opportunityl animals, fish, oysters, and other wildlife shall
Affirmative Action Employer send the fine to the department within 10 days
after the date of collection. A statement
containing the docket number of the case, the name
of the person fined, and the section of the law
violated must accompany the remission of the fine.
(b) The amount of the fine to be remitted to
the department is 80 percent in county court cases
and 05 percent in justice court cases.
p. 1751
Mr. Charles D. Travis - Page 2 (Mw-492)
(c) The fees set out in Articles [lo07 and
1008, Code of Criminal Procedure] shall be
deducted from fines imposed for violations of laws
relating to wild game, birds, fish, oysters, and
other wildlife. (Emphasis added).
In our opinion, sections 26.212 and 26.213 of the Texas Water
Code are laws "relating to" the protection and conservation of
wildlife within the meaning of section 12.107 of, the Parks and
Wildlife Code. They provide, respectively, that no person may cause
or permit waste discharges that cause water pollution except as
expressly permitted, and that each violation is punishable by a fine
of from ten dollars to one thousand dollars. For purposes of the
subchapter, authorized agents and employees of the Parks and Wildlife
Department are made peace officers empowered to enforce subchapter
provisions. Water Code §26.215.
It follows that fines collected from violators under section 26,
subchapter F of the Water Code, except as hereafter noted, are to be
disposed of as directed by section 12.107 of the Parks and Wildlife
Code, regardless of whom the arresting officer may be. Cf. Attorney
General Opinion O-5679 (1943) (interpreting former statute later
amended). See former article 912, V.A.P.C. (1925). Articles 1007 and
1008 of the Code of Criminal Procedure referred to in section 12.107
of the Parks and Wildlife Code entitle the district or county attorney
to ten percent of the amount collected, the clerk of the court to five
percent, and the collecting officer (except a justice of the peace or
his clerk) five percent. See Attorney General Opinion V-1022 (1950).
Cf. Attorney General Opinio~H-1124 (1978); O-5679 (1943).
The exception concerns fines collected from corporate defendants.
Section 26.223 of the Water Code provides:
If a private corporation is found guilty of a
violation of this subchapter and a fine imposed,
the fine shall be entered and docketed by the
clerk of the court as a judgment against the
corporation, end the fine shall be of the same
force and effect and be enforced against the
corporation in the same manner as if the judgment
were recovered in a civil action.
Cf. American Plant Food Corporation v. State, 587 S.W.Zd 679 (Tex.
Crim. App. 1979).
Civil penalties under the Water Quality Control Act, as opposed
to fines, are controlled by section 26, subchapter D of the Water Code
rather than section 26, subchapter F. Section 26.126 regulates their
disposition. It reads:
p. 1752
. -
Mr. Charles D. Travis - Page 3 (MW-492)
(4 All civil penalties recovered in suits
instituted by the State of Texas under this
chapter through the department of the Parks
and Wildlife Department shall be paid to the
General Revenue Fund of the State of Texas.
(b) All civil penalties recovered in suits
instituted by a local government or
governments under this chapter shall be
equally divided between the State of Texas
and the local government or governments first
instituting the suit, with 50 percent of the
recovery to be paid to the General Revenue
Fund of the State of Texas and the other 50
percent paid equally to the local government
or governments first instituting the suit.
Thus, section 12.107 of the Parks and Wildlife Code will not
govern the disposition of fines collected from corporate defendants
under section 26, subchapter F of the Water Code, and articles 1007
and 1008 of the Code of Criminal Procedure will have no application
thereto, because such collections are to be considered civil penalties
rather than criminal fines. See State v. Hart, 70 S.W. 947 (Tex.
1902); Attorney General OpinionM-560 (1970). Again, the identity of
the arresting officer is not critical because it is not the
affiliation of the arresting officer that determines the disposition
of civil penalties collected, rather it is the identity of the
governmental body instituting suit that is important. Cf. Attorney
General Opinion O-5679 (1943). See generally 12 Tex. Jur. III
Conservation and Pollution Laws 5111 et seq., at 437,
SUMMARY
The disposition of fine monies collected
pursuant to section 26, subchapter F of the Texas
Water Code is controlled by section 12.107 of the
Parks and Wildlife Code, except fines collected
from corporate defendants, which are to be
disposed of in accordance with Water Code section
26.126 as though they were civil penalties
recovered under section 26, subchapter D thereof.
Whether the arresting officer is a game warden
makes no difference.
MARK WHITE
Attorney General of Texas
p. 1753
Mr. Charles D. Travis - Page 4 (m-492)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
p. 1754