HE AXTORNEY GENE
OFTEXAS
Amwrm. TEXAS 78711
JOHN L. BILL
Ax-rORNEY CIIENsR*L
August 2, 1973
The Honorable Clayton Garrison Opinion No. H- 78
Executive Director, Texas Parks &
Wildlife Department Re: Whether personnel employed
John H. Reagan Building by the Parks and Wildlife
Austin, Texas 78701 Department must be issued
permits of authorization in
order that they may take,
transport, release, manage;
or otherwise, handle fish and
wildlife species of the State of
Texas for investigation, pro-
pagation, distribution, or
Dear Mr. Garrison: scientific purposes.
You have requested an opinion as to whether employees of the Parks and
Wildlife Department are required by law to obtain a permit to take, transport,
release, manage, or otherwise handle fish and wildlife species of this State
for investigation, propagation, distribution, or scientific purposes.
The issuance of permits by the Parks and Wildlife Department for the
taking of protected wildlife and fish is governed by Article 913 of Vernon’s
Texas Penal Code. Section 1 empowers the Department to allow “qualified
persons to take protected wildlife and fish for propagation, zoological
gardens or scientific purposes. ”
The Legislature, through Article 913, V. T. P. C., has further prescribed
the manner in which permits are to be granted (5 l), restrictions concerning
certain wildlife (5 5 1 and la), the duration of the permitted use (5 2), and
conduct required of the holde,r together with specific penalties for misconduct
(5 $ 4, 6,’ and 7). All of these are of the nature of mandatory requirements
once the Department has exercised its discretion in issuing a permit:
“Permits may be granted upon application
made under oath indicating the particular species
and purpose of collection ” $1, Article 913,
V. T. P. C. (Emphasis added)
p. 354
The Honorable Clayton T. Garrison, page 2. (H-78)
In contrast to the above provisions restricting the issuance and use
of permits, the Parks and Wildlife Department is granted extensive power
to regulate the conduct of anyone, including a permit holder, taking and
possessing protected species:
“Sec. 3: The Parks and Wildlife Department
may prescribe reasonable rules and regulations
concerning the taking and possession of protected
wildlife species indigenous to the State of Texas or
fish indigenous to the State of Texas for scientific
purposes, zoological gardens, and for propagation
purposes. Said department may cancel any permit
granted pursuant to this Act for violation of such
rules and regulations. ‘I (Emphasis added)
Further, the Department may not only set its own rules and regulations
but also is vested with comprehensive authority to handle the State’s
wildlife and fish:
“Sec. 5: The Parks and Wildlife Department
at all times shall have the power to take, transport,
release, or manage any of the wildlife and fish of
this state for investigation, propagation, distribution
or scientific purposes. ” (Emphasis added)
Finally, § 6, in describing those who are exempted from prosecution for
violation of the State’s wildlife and fishing laws, includes both the holder
of a Parks and Wildlife Department permit and an employee of that Depart-
ment, clearly indicating that the employee handling wildlife for scientific
purposes need not be a permit holder.
“Sec. 6: It shall be no defense in any
prosecution for violation of any of the wildlife
or fishing laws of this state that the taking or
transporting of wildlife or fish was done for
scientific purposes unless such defense is
offered on behalf of a person holding a Parks
and Wildlife Department permit which was
valid at the time of the alleged offense, or
on behalf of an employee of the Parks and
Wildlife Department acting within the scope
of his authority. ” (Emphasis added)
p. 355
.-
The Honorable Clayton Garrison, page 3 (H-78)
The scope of an employee’s authority would be defined by the rules
and regulations which t.he Department is authorized to make under $ 3
and which also govern the permit holder. Coupled with the compre-
hensive grant of authority to handle wildlife in $ 5 and the defense to
prosecution in § 6, this indicates that Parks and Wildlife Department
personnel may perform their assigned duties without first obtaining
permits of authorization.
SUMMARY
Sections 3, 5 and 6 of Article 913, Texas
Penal Code, indicate that personnel employed by
the Texas Parks and Wildlife Department need
not obtain permits authorizing them to take, trans-
port, release, manage or otherwise handle fish
and wildlife species of the State of Texas for
investigation, propagation, distribution or scien-
tific purposes.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 356