TEI~E ATTORNEY GENERAL
OF TEXAS
A11mrrxru.-lkXAS 78711
.JOHN L. RILL
*x-l-oRNRY GENERAn.
July 10, 1973
The Honorable Clayton T. Garrison Opinion No. H- 60
Executive Director
Texas Parks and Wildlife Dept. Re: Does the Parks and Wi.ldlife
John H. Reagan Building Department have the authority
Austin, Texas 78701 to authorize the trapping and
shipment of wild animals and/or
fish to other countries, either
in ,exchange for other wild animals
and/or fish of similar or equal
Dear Mr. Garrison: value or without such exchange?
Your request for any opinion of this office asks the following question:
“Does the Parks and Wildlife Department have the
authority to authorize the trapping and shipment
of wild animals and/or fish to other countries,
either in exchange for other wild animals and/or
fish of similar or equal value or without such
exchange? ”
The Parks and Wildlife Department, as the successor to the Game and
Fish Commission and the State Parks Board, is directed to exercise all the
powers and duties formerly vested in those agencies. Art. 978-3a( 5). V. T. P. C.
As an agency of the State, the Department is limited to the exercise of only
.those powers the Legislature has expressly and impliedly delegated to it.
State V. Jackson, 376 S. W. 2d 341 (Tex. 1964). Your question, then, is whether
the Legislature has delegated to the Parks and Wildlife Department the authority
to permit the capture and transportation of wild animals and fish to other countries.
Article 871a, V. T. P. C. reads:
“All wild animals, wild birds, and wild fowl within
the borders of this State are hereby declared to be
the property of the people of this State. ”
p. 256
The Honorable Clayton T. Garrison, page 2 (H-60)
As a consequence of their status as “state property” these wildlife
resources may only be appropriated by persons under circumstances and
for purposes authorized by State law.
The Legislature has given the Parks and Wildlife Department the
broadest possible regulatory authority when the Department is itself the
one doing the capturing and transporting of wildlife:
“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
purpose*. ” Article 913( 5), V. T. P. C. (Emphasis added).
This enactment amended prior law by removing a limitation that the
Department could only transport captured wildlife within the State (Acts 1925,
39th Leg., p. 394, Ch. 172) and by adding the authority to take and transport
fish in addition to wildlife. Therefore, our opinion is that the Department
itself is authorized at all times to capture and transport wildife or fish
within or without the State if for the purpose of investigation, propagation,
distribution or science. This power does not depend upon an exchange of
wildlife of “equal value”.
The Parks and Wildl;ife Department has also been given the authority
to permit private individuals under certain circumstances to capture and
transport State wildlife. Article 871b. V. T. P. C. , requires a written
permit from Parks and Wildlife Commission before “game animals, or
game birds from the wild?maybe transported for the purpose of “better
wildlife management by making adjustments in game population. ” Article
913 (1). V. T. P. C., empowers the Department mpermit “qualified persons
to take-protected wildlife or fish for propagation, zoological gardens or
scientific purposes. I’ Neither statute unambiguously authorizes extra-
territorial transportation of wildlife. However, Article 874, V. T. P. C. , as
is protects nongame birds and prohrbits their shipment by persons “to a
point within or without the state, . . . , except as permitted by Article
913. ‘1 would imply that the Legislature intended Article 913 to author.iee the
Department to permit persons to transport wildlife to points “without the
State, I’ and that term would include transportat?on to other countries.
p. 257
The Honorable Clayton T. Garrison, page 3 (H-60)
Before the Department amy issue permits for the capture and
transportation of protected wildlife it mus t determine that the person
is “qualified”, meaning capable of capturing thesnimal in a scientific
manner without cruelty (Article 913, $ la), and that the applicati.on is
“endorsed by two recognized specialists in the biological field concerned,
who are residents of the U.S. and have known the applicant for at least
five years. ” Article 913, $1. Other rules and regulations may be
prescribed by the Department. Article 913, $ 3. No doubt the Legis-
lature intended by these minimal guidelines to assure that the purpose of
the taking is a legitimate and important one; and that the animals be safely
and humanely transported to their destination and cared for thereafter.
The Department’s responsibility in issuing permits is to see that this
intention is carried out.
Therefore, our opinion is that the Parks and Wildlife Department
may issue permits pursuant to its rules and regulations for the capture
and transportation of wildlife or fish to points within or without the State
for the purpose of propagation, zoological gardens, science or better
wildlife management if the applicant is “qualified” and his application
“endorsed” by two specialists in accordance with Article 913(l). V. T. P. C.
SUMMARY.
Under Article 913 (1). Vernon’s Texas Penal Code,
the Parks and Wildlife Department may at all times
capture and transport wildlife or fish of this State for
investigation, propagation, distribution or science;
and may issue permits to persons to do so in accord-
ance with Article 913(l), Vernon’s Texas Penal Code,
for those purposes and the additional one of zoological
gardens. The Department does not have to require an
“equal exchange” as a condition for a permit to capture
and transport wildlife to other countries. However, it
may require such an exchange. All permits must be
issued entirely in accordance with the legislature and
regulatory requirements.
u Attorney General of Texas
p. 258
The Honorable Clayton T. Garrison, page 4 (H-60)
APPR VED:
r R
sLc?lLLM, KENDALI
DAVID M. KENDALL,
Opinion Committee
Chairman
p. 259