Untitled Texas Attorney General Opinion

EA~KT~RNEP GENE OFTEXAS Honorable Charles Ii.Rolton Opinion No. C-259 County Attorney Basque County Re: Under Article 893, Section 1, Meridian, Texas of the Penal Code, is the forfeiture or resto,ratlonof the lkense discretionary with the court: or, is the right vested in the defendant Dear Sir: under such Article? We have received and carefully consideredyour request for an opinion upon the following question: "Under Article 893, Section 1, of the Penal Code, is the forfeiture or restorationof the license discretio,narywith the court: or, Is the right vested in the defendant under such Article?" It should be noted that Acts 39th Leg. 1925, ch. 172, p. 387 provided in Sec. 30, as follows: "Any person convicted of violating any pro- vision of the game laws of this State shall there- by automaticallyforfeit his license for said season; . . ." Thereafter the above mentioned forfeiture statute was amended by Acts 53rd Leg. 1953, ch. 5, p. 11, codified as Article 893, V.P.C., as follows: "Section 1. Any person charged In any court in this State with an offense of vio- lating any law which it is the duty of the Game ,andFish Commission to.enforce shall have the right to have the court or jury before which said person is tried either to forfeit the license of said person so charged or to restore said license to said person soxged ‘Tarthe remainder of the license period. The court shall so state In its judgment whether -1239- Honorable Charles Ii.Bolton, Page 2 (C-259 ) or not the license of said person Is revoked or whether or not said person shall retain same." (Emphasisadded) Section 5 provides: "The fact that such licenses are now automaticallyforfeited on a violation of any hunting and fishing law without allowing same to be at the discretion of the court, creates an emergency. . . .II (Emphasisadded) In the case of Ex parte A. J. Morris, 325 S.W.2d ~386(Tex. Grim. 1959), the Court was basically concerned with the question of the jurisdictionof the Justice Court. The Court while dis- cussing the 1925 Forfeiture Clause and comparing it with the 1953 Forfeiture Clause stated as follows: "In construinga prior statute this Court held the license to be automaticallyforfeited by the final conviction;that the statute did not confer upon the court the authority to forfeit the defendant'sright to hunt, 'andthat the inclusion of such provision in the judgment was of no effect. Galloway v. State, 125 Tex. Cr.R. ,524,69 S.W.2d 89. "It Is apparent that the amended Article 893, V.A.P.C. precludes such a holding. It specificallyprovides that the forfeiture of the hunting license of the defendant Is for and must be provided for in hasls added) It has been held time and time again that the cardinal rule of statutory constructionis to ascertain the Legislature intent. This rule is stated In 53 Tex.Jur.2d 180, Statutes, Sec. 125 as follows: "The intention of the legislaturein enact- ing a law is the law Itself, the essence of the law, and the spirit that gives life to the enact- ment. It is the duty of the courts to give full recognition to the legislativeintent. . . .' -~1240- Honorable Charles Ii.Bolton, Page 3 (C-259 ) Again, at page 183 of 53 Tex.Jur.2d, Statutes, Sec. 125 the proposition is stated as follows: II . e .The Intent having been ascertained, the court will then seek to construe the statute so as to give effect to the purpose of the Legis- lature, as to the whole and each material part of the law, even though this may involve a.de- parture from the strict letter of the,law as writ- ten by the legislature. This is the fundamental canon and the cardinal, primary, and paramount rule of construction,which should always be closely observed and to which all other rules must yield. . . ." Brown and Root v. Durland, 126 Tex. 20, a4 S.W.2d 1073 1935 St t Ds 145 Tex. 586, 200 S.W.2d 813((194$j. a e '* er' 53 Tex.Jur.2d 249, Statutes, Sec. 170 provides as follows: I, n emergency clause may be consid- ered 1: it's 47eds light on the inquiry and will aid the court in ascertaining the legislative intent,. . .'I 53 Tex.Jur.26 252, Statutes, Sec. 173 states: "When necessary to arrive at the proper constructionof a statute, a court may con- sider its legislative history and the history of legislationgenerally pertaining to the subject with which it deals. Legislative history is admissible when It will aid in ar- riving at the intention of the legislatureor that of,#personsemployed to codify the laws . . . . It was shown above that Section 5 of Article 893 spoke of the forfeiture of the license being at the dis~cretionof the court. This is further evidence, in light of the prior auto- matic forfeiture provision that the Legislature intended that there would be no more automatic forfe%ture;but that the de- fendant had the right to elect whether he wanted the,court or jury to consider forfeiting or reinstating his license. After he makes his election as to whether he wahts the court or the jury to decide, then the forfeiture 6r reinstatementis at -1241- Honorable Charles Ii.Bolton, Page 4 (c-259 ) the dlacret'ionof the court or jury. If the Legislature Intended to give the defendant'theright to elect that neither the court or jury could de&lde.whetherto revoke the license or restore 881118, it'would not have provided In the 1953 Ameridmentthat, "The court shall so state in its judgment whether or not the license of saim&on is revoked or whether or not said person~sh811:-J retain same." (Jiinphaalsadded) It Is clear that the Legislatui-e merely intended to give the defendant~theright to decide tihether the court or the u would make'the decision as to forfeiture or rest5Z%iXonof hisJ-z cerise. SUMMARY Under Article 893, Section 1, V.P.C., the forfeiture or restorationof a hunting, fishing or trapping license is discretionarywith the court if the defendant elects to have the court decide rather than the jury. Very truly yours, WAGGONER CARR Attorney General of Texas JPB:aj APPROVED OPINION COMMITTEE W. V. Geppert, bhairman Roy Johnson Roger Tyler lp-a;yCpozman . . APPROVXD FOR TEE ATTORN.EYGENERAL By: Hawtho%ne Phillips - 1242-