d .
Hon. F. M. Cowmert
Director of Law Enforcement
Game, Fioh and Oyster Commismion
Austin, Texas Opinion No. V-59
Re: Whether or not under Article 910
of the Penal Code it is unlawful
to kill a wild female deer.
Dear Sir:
We have your
request for an opinion upon the
above titled subject matter, in the last paragraph of
which you say: “In the final analysis, the question is,
in proseoutiona under Art,. 910, Penal Code 192’5, is it
necessary always to prove that the dear was wild?”
Article 91Qy insofar a8 pertinent, is as fol-
lows :
“It shall be unlawful~for any person to
take, kill, * * *~ shoot at, hunt or o;s+est,
dead or alive any wild female d~eer, 8 .
We shall first determine, as best we may, juet
what the Legislature meant by the term “wild female deer”.
It is a fundamental rule of statutory construc-
tion that words used therein are to be construed in their
usual, ordinary, commonly-accepted meaning, unless the
contrary thereof plainly appears from the context. This
rule is applioable alike to civil and penal statutes.
Art. 7 of the Penal Code declares that:
*This code and every other law upon the
subject of crime which may be enacted, shall
be construed according to the plain import of
the language in which it is written, without
regard to the distinction usually maUe between
the oonstruction of penal laws and laws upon
other subjects g 5 a.*
Hon. P. Y. Celeert2 Page 2, V&59
leatees, and iia abt 04rtxfiaeit by et3 4Stelamur8 apptbxent-
By suf~iclent to hQl& it, ,ox v$aibky tethered or within
the Vis$bl8'obntrCl 0r some person,
This CCnstIUCtiQn COmpoPt0 with the cl8ax pur-
pQB8 Of this Statute, that is, t0 pXeV4nt the slaughter
of wild deer es evidenced by OCR policy of wild game pres-
ematfon.
Within the meaning of this rule, a deer, loose
on the wrang8w would be a *wild" deer within the meaning
oS.the statute even thCugh it, had formerly b,een at any
time, and r0r any length 0r time, in captivfty,
Et is worthy OS nC,tice that under,Seotion 3 of
t&.t title, Lioense ror Game Elreeder, 0r El. 8. 275, bets
1!&3 9 48x& ‘Lea * ‘I it is declared that *All game birds or
g&&8 aaf#Mh?. held Under a game br8eder's lice&Be shall
Mnein Under the. full fQ,XC'oe of any or all laws Cr regula-
tiens Qr this State pertaining tm wild game birds or
wild game animals in order that these necessary police
rqgul;ations r0r the preservation or native Sam8 species
may b8 ,enfeDXd ,ts the benefit of the State."
And the succeeding section turther- declare&:
*Ior the purpose or this aot 'Captivity' is defined a8
an enclosure suitable for retaining, and that will re-
tain at all times Under reasonable and ordinary circum-
stances the bird, fowl, or animal so enclosed, and so .,
Thle statute would psrhapr ,jpstiiti a
alaeeiriaetioa thra we hare mada aberm, that La, fat0
wild Zemale deer end tomale de.? in orptiritya
Specifioal3y, rtth rea aat to P)Pr lmt gum-
tloa, we beg to edrise ar fou qu! to roll know that it. 1s
er8sntial lp. a crfalnnl proesoutloxl for the State tg
prove every rwi ~6r~ntial to th0 005i66io~ or th0 0ri~
ob8rged, and this melee la the prewnt oaae, that the
strte wquld be requlre(l tr prove tint the r080ibha00p
was a Wwild* fernala deei. This oould be pnmd, howerrr,
l$thor by direct erideacs or ofrowtantial ofiaeme.
OrdQfarlly, we think, the prori~@ of tha phoe whelu the
deer ww ktll6d would atford rrfUsnae a8 to it$ otrrncttor
ar herein deflaedr
(1) The tslm “wild fanale drawn a8 umd in
Art1010 910 of the ?aml Coda, moana rueb i0~1r
deer at llbsrt~ to maa et will’, a8 dilrtin(ei8hed
tror ona la aaptltlty or rlelbly Under oontrol of
some person*
(8) Ia a prw&mtlon,endsr that article, it
would be ~leoe~m to support d 4onviotitin that
the Stats prove t%a3 the deer killad or shot at
wa$ a nwild female deer”, Suoh ‘proof, howqwr,
may be rprde either bg direot eridsnoe or oiroea-
stsntial bvidenoa.
BY
OOi6 Bprcr
Aaaietant
0S:aom: jrb
Untitled Texas Attorney General Opinion
Combined Opinion