EXE A OEENEY GENERAL
TEXAS
AUSTIN. %XAS 787
CRAWPORD C. MARTIN
AlTORNRY GENERAL
December 22, 1969
Honorable James Allen Payne
County Attorney
Sabine County
Hemphill, Texas 75948
Opinion No. M-543
RE: Interpretation of
House Bill 1437.
61st Legislature,
Dear Mr. Payne: R.S. 1969
You have requested an opinion of this office inter-
preting the meaning of House Bill 1437.,61st Legislature,
R.S. 1969, ah. 640, p, 1421, codified as Article 9783,
Vernon's Penal Code, which reads,~in part, as follows:
"Section 1. No person may use any horn,
recording, or other device to call or attract
wild fox in Shelby, Nacogdoches, Sabine, San
Augustine, Falls, or Leon Counties."
"Section 2. A person who violates any
provision of this Act is guilty of a mis-
demeanor and upon conviction is punishable
by a fine of not less than $25. nor more
than $200."
We quote from your request:
"A question has arisen in our County per-
taining to the above captioned bill. Is a
person who is found with a horn, recording,
or other device, which device will call or
attract wild fox in violation of this law
even though it is not his intent to be
hunting fox? This person was using the
recording device to attract wild cats and
wolves.
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Honorable James Allen Payne, page 2, (M-543)
"It appears to me that this statute is vague
and would depend on the intent of the person
using the recording or other devices. If he
was calling wolves and bobcats and a wild fox
was attracted to the call and he did not harm
the fox in any way, would this be a violation
of this statute? Of course, the statute does
not say 'to call or attract wild fox for the
purpose of killing or capturinq the same.’
"I have had numerous requests from citizens of
this County as to just what this statute covers.
In my opinion, it does not prohibit one from
using a horn, recording, or other device to
attract predators other than wild fox. However,
it would seem that if a wild fox was attracted
to a call even though the caller was hunting
predators other than wild fox, then it might
be construed to be a violation of this act.
Also, it would appear that the burden of proving
that one was using devices for calling wild fox
would be on the State unless the person was
actually apprehended in the act of attracting
a wild fox."
In 53 Tex.Jur.Zd 239, Statutes, Section 163, the follow-
ing appears (with ample authority cited in various footnotes):
"So where the statutory language is ambiguous,
or admits of more than one meaning, it is to be
taken in such a sense as will conform to the
scope and intent of the act, and will best or
most certainly accomplish its purpose, without
doinq violence to plain statutory language.
Thus, where a statute is designed to afford a
remedy for existing evils, it should be given
such signification as will afford a reasonable
remedy. Contrariwise, a construction that is
repugnant to the object of the law or that will
defeat, thwart, or unduly limit itg plain pur-
pose, will be avoided if possible."
In order to ascertainthe intent of the Legislature in
the passage of this Act, we may also look to the caption Of
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Honorable James‘Allen,Payne-,'page 3, (M-543)
the bill, which states as follows:
"An Act prohibiting the use of devices for
calling wild fox in certain counties; providing
a penalty: and declaring an emergency';"
It thus appears from the caption that all that has been pro-
hibited by the Legislature is the use of devices for the pur-
pose of calling or attracting wild fox. This being a penal
statute calling for a strict construction (53 Tex.Jr.2d
304-307, Statutes, Sec. 198; 16 Tex.Jur.Zd 137, Criminal
Law, Sec. 32) it necessarily follows that the use of devices
for calling other wild game is not prohibited.
Since the burden of proof is always 'upon the State in
a criminal action, it will be necessary'to prove that any
person found using the calling device had the intent to
call wild fox. Proof of such intent may be difficult
but it follows the general rule in all criminal cases where
specific intent is a part of the offense. However, your
attention is directed to Article 45 of Vernon's Penal Code
which states:
"The intention to commit an offense is
presumed whenever the means used is such
as would ordinarily result in the commis-
sion of the forbidden act."
It is also noted that the statute in question does
not mention possession of a calling device and therefore
such possession would not be an offense.
SUMMARY
The use of a horn, recording or other
device in the named counties is only in
violation of House Bill 1437, 61st Leg.,
R.S. 1969, when such use is for the
purpose of calling or attracting wild fox.
19
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Honorable James Al&en Payne, page 4, (M-543)
Prepared by Howard M. Pender
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
Bob Lattimore
Tom Bullington
Lonny Zwiener
Wqrdlow Lane
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant Attorney General
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