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
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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. . . .'
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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
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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
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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
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