November 20, 1972
Honorable Clayton T. Garrison Opinion No. M-1265
Executive Director
Texas Parks & Wildlife Department RB: Authority of the Texas
John H. Reagan Building Parks & Wildlife Dept.
Austin, Texas 78701 or other state agency
to issue licenses pur-
suant to 16 U.S.C.A.
Dear Mr. Garrison: §742j-l(b) (1).
You have submitted the following question:
"Is the Texas Parks and Wildlife Department
or any other State agency authorized to issue
permits or licenses pursuant to Public Law 92-
159, Section (b)(l) (85 Stat. 480, 16 U.S.C.A.
7423-l) and for the purposes contemplated by the
named statute."
The federal statute, 16 U.S.C. §742j-1 reads as follows:
(a) Any person who--
(1) while airborne in an aircraft shoots or
attempts to shoot for the purpose of capturing or
killing any bird, fish, or other animal; or
(2) uses an aircraft to harass any bird, fish
or other animal; or
(31 knowingly participates in using an aircraft
for any purpose referred to in paragraph (1) or (2);
shall be fined not more than $5,000 or imprisoned not
more than one year, or both.
(b) (1) This section shall not apply to any
person if such person is employed by, or is an
authorized agent of or is operating under a
license or permit of, any State or the United
States to administer or protect or aid in the
administration, or protection of land, water,
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^ .
Honorable Clayton T. Garrison, page 2 (M-1265)
wildlife, livestock, domesticated animals, human
life, or crops, and each such person so operat-
ing under a license or permit shall report to
the applicable issuing authority each calendar
quarter the number and type of animals so taken.
(2) In any case in which a State, or any
agency thereof, issues a permit referred to in
paragraph (1) of this subsection, it shall file
with the Secretary of the Interior an annual re-
port containing such information as the Secre-
tary shall prescribe, including but not limited
to--
(A) the name and address of each person to
whom a permit was issued;
EJ) a description of the animals authorized
to be taken thereunder, the number of animals
authorized to be taken, and a description of the
area from which the animals are authorized to be
taken;
CC) the number and type of animals taken
by such person to whom a permit was issued; and
CD) the reason for issuing the permit."
The above quoted federal statute does not authorize the
Parks and Wildlife Commission or any other State agency to issue
permits or licenses pursuant thereto. The statute does provide
an exception whereby it I'. . .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 admini-
stration, or protection of land, water, wildlife, livestock,
domesticated animals, human life, or crops . . ." However,
there is no authority vested in any State agency to issue permits
or licenses under this exception. Such authority must come from
the Legislature.
While Article 192b, Vernon's Civil Statutes, 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 animals, it
does not create a licensing procedure as contemplated by the
federal Act.
Article 901, Vernon's Penal Code, prohibits the use of
aircraft
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Honorable Clayton T. Garrison,'page 3 (M-1265)
II
. to hunt, take, capture, or kill,
. . or
attempt to hunt, take, capture, or kill any
of the wild game birds, wild game fowl, or
wild game animals protected by the laws of
this State. . .'I
However, this statute applies only to game species.
Because there is presently no state apparatus for licensing
individuals by a state agency as contemplated by 16 U.S.C. 742
j-1, the federal act does not become applicable in Texas until
thirty days after the end of the next regular session of the
Texas Legislature. Pub.L. 92-159, 53, 85 Stat. 480.
SUMMARY
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. §742j-l(b) (1). This federal Act is not ap-
plicable to Texas until 30 days after the end of the
next regular session of the xas Legislature.
truly yours,
I
(ii*
. MARTIN
ey General of Texas
Prepared by Thomas M. Pollan
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max Hamilton
Ben Harrison
Bob Lattimore
Arthur Sandler
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Honorable Clayton T. Garrison, page 4 (M-1265)
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOIA WHITE
First Assistant
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