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Honorable J. G. Lyles Opinion No. V-22
Caunty Attorney
Robertson County ae: Authority of a deputy
Franklin, Texas game and fish warden
to enter uponinclossd
land *here wild game
is known to ran e or
stray for any o% the
purposes enumerated in
Article 919, Penal
Code, without a search
warrant and over the
protest of the owner
thereof.
Dear Sir:
This is in reply to your letter dated No-
vember 22, 1946, wherein you request the opinion of
this departmentrelative to the following question,
and we quote:
“A, the owner and lessor of inclosed
lands, has leased his lands to other par-
ties for huntin purposes, and has complied
with Article 902 Penal Code. A refuees
permission to G&e Warden to search his
leased premises.
“Question: Does Game Warden have le-
gal authority to enter AIs premlusr Over
his protest without having obtained a le-
gal search warrant?”
Article’I,Section 9, Texae Constitution,
provides:
“The people shall be secure~in their
persons,,houses, papws and possessfans,
from all unreasonableseisures or searches,
and no warrant to search any place, or to
soiae any pereon or thing,~shall issut
.
Hon. ~J.G, Lyles - Page 2
witnout describingthem as near as ma;{be,
nor witnout probable cause supported by
oatn or affirmation."
The Fourth Amendment to the Canatitvtionof
the United States reads as follows:
"The right of tne La tc he ,se-
:;;:,t: t&gF$&a :,,$gg; z;;
seiw&, shall not b6 vie&wed,, but nc
warrants shall is6ue, but up4n r&able
came, supportedby qath or aff!.rmation,
and particularlydescribing; the piace to
be searched, and the persons or things to
be seized."
Articles 871, 871a, 905, 906, 914 919
Penal Code of 1925, Sections 3~aad 6 of Article 478f,
Vernon's Annotated Penal Code, and Article 4026, Re-
vised Statutes, read respectively,in whole or in
part as follows:
"Article (371. 'CoauPissioner'.The
word 'commissioner'wherever used in this
chapter, shall be held to mean the Game,
Fish and Oyster Commissionerof the State
of T6ras.w
"Article 871a. Wild bird6 and ani-
mals* All wild an$lnaLs. w5.l.d
birds and
wild fowl uithin t&e ,%+$$a@&&f ahi. $ulate
are herakay deo&+ed &Q Ihya
#k4 pp+srty ef
the peeglr af t5hSeYtwe!."
"Art;icle99g. 4%3pMwa**r to mn-
force game law, The.&?a~, F‘Mh aml Dys!tier
Commissienerand hia deputies skakl have
the same power and aut@rSty a6 I#h6rffls
to serve criminal proeeiq,rsin connection
with ~6~6~6@owing out .arfBe YPllaQdons
of this chapter, shall have the s'amep4w-
er as shariff6 ts requj;re6i6 rLnrxecut-
ing suoh process, and shal.1he emtltlad to
receive the same fe6s as are pL*avldedby
law for sheriffs in mlsdeatesnarcases.
"Said Commissioner'orany of his
deputies may ameat w!itheuCa warrant,any
Hon. J. G. Lyles - Page 3
person found by them in the,act of violat-
ing any of the laws for the protectionand
propagationof game, wild birds or fish,
and take such person forthwith before a
magistrate having jurisdiction. Such ar-
rests may be made on Sunday, and in which
case the person arrested shall be taken
before a magistrate having jurisdiction,
and proceeded against as soon as may be,
on a week day following the arrest."
"Article 906, Deputy Commissioners
to enforce law. It is hereby made a spe-
cial duty of the Game, Fish and Oyster
Commissionerto enforce the statutes of
this-State for the proteotion'and preserve-
tion of wild game and wild birds; and to
bring;,or cause to be brought, actions and
proceedingsin the name of the State of
Texas, to recover any Lnd all fines and
penalties provided for in the laws now in
nforce, or which may hereafter be enacted,
'relating tdwild game and wild birds., Said
Game, Fish ,andOyster Cemmirsionermay make
complaint and cause proceedingsto be cem-
menced against any person~forviolating any
of the'lairsfor the protectionand propaga:
tion of gama~or birda without the sanctien
of the County attorney of thb county in
which such proceedingsare comnenced;and
in such casoa he shall not be required-to
furnish security for costs@*
%rticle 914. Special.deputygame
Commissioners. It shall.be the duty of
the ~Gama,3iah and Gyster Commissionerto
appoint special deputy game commisSWn~s,
who shall be ox officio deputy game:,fieh
and oystrr commiaeionersto *n$orae Con*
servation laws in the various districts oft
the State ,withall the powers of the lat-
ter to enhorce the game fish and.oyster
1anS of this State, 9:*'en
wArticle~919~'-Powerof commi,ssianets
to enter 'onlsmids. The Game, Fisk atid
Oge+~ Cop1s;sssiia&apu hLf4&p3iy2~s,shall
at all~timee have.the powertd eWer upon
any wda or waterwhere wild gaW"or fish
Hon. J. G. Lyles - Page 4
are known to range or stray for the purpose
of enforcing the game, and fish laws of
thi8 State, and for the purpose of asking
scientific invest1 ations or for research
work as to such WI d eme or fish, and no
%a8 11 be sustained
action in any court
against the commissioneror any of his
deputies to prevent their entrance upon
lands or waters when .actingintheir of-
ficial capacity as herein set f0rth.e
'Article 978f. Game, Fish, and Oys-
ter CollPiseion;powers and duties& Sec. 1.
The offiae of Game, Fish and Oyster Com-
missioner of the State ef Texas is hereby
abeli8hed. There is hereb created the
Geme Fish and Oyster Cm Ission which
ahall bare the authority, powers, d&tee
and fuastione heretoforevested 1n the
Game, Fish md Oyrter Ce-lieaiener,ex-
cept where in conflictwith We AetP
*Seation 6* Said Game, Fish and
Oyster Cemmissionshall have power and
authority to appoint ansxeuutive eee-
retary who ahall act as the chief execu-
tlve officer under the direation of said
Game, Fish and Oyster Commission. The
Commissionmay perform its duties through
said executive secretary and may dele ate
to him suah executive dutiee as said Le,
Fish aad Oyster Commissionshall deem
proper. They shall also have power and
authority to appoint an assistant execu-
tive searetarywho, in the absence of the
exeoutivesecretary, shall perform aa
the Butlea of the executive secretary and
shall perform such other dutiee as may be
preecribedby the Game, Fish and Gyster
Cos~iesiemor under its &#uotion. Said
executive eeoretary shall have authority
to appoint suah head6 of divisions and
such Game and Fieh wardens and other em-
ployees as in his diaaretienmay be deemed
neaeesary to carry out and enforce the
lava of this State, which it is the duty
of eaid Game, Fish and Oyster Commission
to carry out exeaute and administer,and
to perform a i1 other duties and services
Hon. J. G. Lyles - Page 5
authorized and required to be performed by
said Game, Fish and Oyster,Cozznission,and
shall have the authority, powers, duties
and functions heretofore vested'in Special
Deputy Game, Fish and Oyster Commissioners
and other employees of the ~Game,Fish and
Oyster Commissioner.* * *"
"Article 4026. Property of State.
All fish and other aquatic animal life con-
tained in the fresh water rivers, creeks
and'streamsand in lakes or sloughs sub-
ject to overflow from rivers or other
streams within the:bordersof +,hisState
are hereby declared to be property of the
people~of this State, All of the public
rivers, bayous, lagoons, creeks, lakes,
bays and inlets in this State, and all
that part of the Gulf of Mexico within
the jurisdictionof t&As State, toget,her
with their beds and bottoms, and all of
the products ther.eof,shall continue and
remain the property of the State of Texas,
except in so far as the State shall permit
the use of said waters and bottoms, or
permit the taking of the products of such
bottoms and waters, and in so far as this
use shall relate to or affect the.taking
and conservationof fish, oysters, shrimp,
crabs, turtle, terrapin,mussels, lob-
sters, and all other kinds and forms of
marine life, or relate to sand, gravel,
merl mud shell and all other kinds of
aheli, the,Game, Fish and Oyster Commis-
sioner shall have jurisdictionover and
control of, in accordancewith and by the
authority vested in him by the laws of
this Stste."
We have quoted the Constitutionalprovisions
of both the State and Federal Constitutionsand some
of our statutes which are pertinent to your question
in which you have used the word upremisesW. In this
connection,we direct your attention to the pr,ovisions
of Article 919, the statute which by it6 terms em-
powers deputy game and fish wardens at all times to
enter upon lands or water where wild game or fish are
known to range or stray for the purpose of enforcing
the game; and fish laws of thisstate, and for the
Hon. J. G. Lyles a Page.6
purpose of making scientificinvesti ationgTg ;z;dre-
search work as to such wild game or fish.
“premises”,as used in your question,might be con-
strued to include the private residence of the owner,
or of his tenant residing thereon, and those things
connected therewith, such as gardens, outhouses,and
appurtenancesnecessary for the domestic comfort of
the dwelling house, which ordinarilymay not be
searched without a search warraqt,or permissionof
the occupant thereof. It is our opinion that this
statute does not attempt to give the ,officersnamed
any such authority, for the statute only empower8
these officers “to enter upon any 1anUs or water
where wild game or fish are known to range or strays.
Wild game and fish do not range or atray into pri-
vate residences,places of businese or the appurte-
nances thereto.
Our answer will be “mited to the author-
ity of deputy game and fisn wardens ‘to enter upon
any lands or water where wild game or fish are known
to range or stray” for any one or more of the pur-
posea enumeratedin Article 919, Penal Code, without
a search warrant and over the protect of the owner
of the land.
The State of Texas owna in trust for the
eo le of the State all the wild anImala and wild
girii s, including wild fowl, within ite bordere. It
also owns for the same purpose all fish and aquatic
life in the fresh water rivers, creeks, streams and
lakes, or sloughs subject to overflow from rivers
or otner streams within the bounds of the State, in-
cluding all of the Gulf of Mexico its bays and in-
lets so situated. Articles 871, benal Code, and
4026, Revised Civil Statutes; Goldsmith and Powell
V. State, 159 S. W. (2d) 534 wrror refused;
;;eyenson v. Wood, 119 Tex. $63, 34 S. W, (2d) 246,
a. 6,s(2d) 794.
In view of the fore oing Statements, it
necessarily follows that the 8t&e, acting under its
police power, has the undoubted authorityto regulate
the taking of’its wild animals, wild birds, fish, and
other aquatic life, and to enact laws for the propa-
gation, protection,and preservationtbereof, includ-
ing the making of scientificinvestigation6and re-
search work. For all of these purposes, the State
has passed many general laws, both civil and criml-
Hon. JI G. Lyles,- Page 7,
nal, includingthose cited herein, and for the en-
forcement thereof has created the Game, Fish and Oys-
ter Commission,the Office of Executive Secretary,
Assistant Executive Secretary, Deputy Game and Fish
Wardens and presaribedtheir powers and duties.
These deputy wardens in the execution of the duties
imposed upon them by statute exercise the power and '
authority,given to sheriffs by the laws of this
State, and may arrest without a warrant any person
found by them in the act of violating any of the laws
for the protection and propa ation of ga-.le
birds or fish. (Article9057 ,Theyalso &v!%l the
power conferred upon them by Article 919, and other
statutes.
Neither the Constitutionand statutes of
this State nor the Constitutionof the United States
prohibits every search or seizure without a warrant,
but only.unreasonablesearches and selaures. Moore
v. Adams 91 S. U. (2d) 24'4;Jaakson v. State, 295
S. W. 614; Hughes vs. 9 Si,W. 173 184.
Crowell vs. State 180 S. W. 2d) 344; United States
VS. Rogato, 39 F 12d 171, 172, and authorities
cited therein; The A.,ourtsof this State, the Supreme
Court of the United States, and other Federal Court8
have held that searches of open fields or that which
is-open to view withou,ta search warrant, are not
prohibited by the Constitutionof either the State
or Federal Government. Wolf v. State 9 Se W. (2d)
350; McTyre v. State 19 S. W. (2d) 44; Crewel1 V'S
State 180 S. W. (2d) 34%; Robie v* State, 36 Si We
(2d) i75; Hester v.‘United~Statea,265 U. S. 57;
United States v. Rogato su e;,United States va
McBride, 287 F. 214, 28&F 4lf;;,
261 U. SI 614.
In the case of Wolf v+ State, supra, the
Gourt svam
"It is apparent from the precedents
that the immunity from interferenceis
founded upon the desire to give effect to
the idea that 'a manvs.homs,iehis castle',;
that an unreasonablesearch is one ,which
trenches upon the peaceful enjoyment of
the house in which he dwells or in which
he works and does business, and those
things connected therewith, such a8 gar-
dens, outhouses,and apprtenances neces-
sary for the domestic comfort of the dwell-
Hon. J. G. Lyles - Page 8
ing house or that in which the business
is conducted. In its limitations,the
immunity intended is analogous to that
which applies to the curtilage of which
the common law speaks, and does not ren-
der unreasonable the search of woods,
fields, ravines, or open spaces not so
connected with the place of business or
dwelling, though owned by the same in-
dividual".
In McTyre1-sCase, supra, the Court, after
referring to the Wolf Case and substantiallyquoting
that part of the opinion which we have just quoted,
added thereto the following:
"That is to say, unless the place
to be searched comes within the purview
of an unreasonablesearah as above Ian-
dicated, the search may uc.made without
a warrant."
In the recent case of Crave11 v. State,
supra, the Appellant was convicted for keeping a
bawdy house; as prohibited by Article 514 P. C.
Upon his trial objccqion was made to the admission of
testimony by witnesses, one of whom was deputy sher-
iff, as to what they saw in appellant'shouse by leek+
ing through a window. In passing upon this sbjection,
the Court said:
"Appellantnsxt contends that such
testimony was inadmissibleunder Article
727a, C. C. P., which prohibits the use
of evidence obtained by an officer er
other person,'in vwlation af the laws
of this State, because, at the time,the
witnesses saw what was transpiringin the
hcuse, they were tresspassersa
"Whether the parties were guilty ef
a civil tresspass is beside the question
and is immaterial,because the statute
mentioned has applicaticnto the viola-
tion of laws of this State, and there is
no statute making it an offense merely
to go upon the premises or property of
anotker.. Hence the facts fail te ahw
that the parties were guilty of a 0firina1
.
Hon. J. G. Lyles - Page 9
tresspass merely because they were on the
appellant'spr4mises, or that in so doing,
they violated any statute. The provi-
sions of Article 727a, C. C, P., relied
upon is, therefore,neither applicable
nor controllinghere."
Deputy game and fish wardens are public of-
ficers of this State who are charged by statute with
the duty of enforcing the gam4, fish and oyster laws
of the State.~ Articles 905, 906, 914, 9'.9, 9'78f,
Sections 1 and 6. The general rule is that an offi-
cer acting in the performanceof his duty,does not
commit a civil tresspass unless he,orceeds the au-
thority under which he acts. 41 Tax. Jur., 409,
Sec. 2 et seq; 43 Am. Jur. 585, sec. 273, 52 Am. Jur.
864, Sec. 41.
In view of what we have heretofore said
andthe authorities.cited,It is our opinion that
Article 919 is a.valid Statute and confers upon
deputy game and fish wardens all the authority it
purports to give them. Such offiaers may legally
at any time enter upon including in-
vi lands*
closed land, or water *nt,in this State whcr4 wild
game or fish are knoti to range or stray for any or
all of the purposes enumerated in said Article, and
may legally so do without a search warrant and over
the protest of the owner or the person in charge or
possession thereof.
SUMMARY
Article 919, Penal Code, does not
attempt to confer authority upon deputy
game and fish wardens to search without
a warrant, the house in which one dwells
or in which he works and does business,
and those things connected therewith,
such as gardens, outhouses,and appur-
tenances nec4saary for the domestic COEI-
fort of the dwelling house or in which
the business is conducted..
Deputy game and fish wardens may
legally at any time, enter upon any
lands, &cluding inclosed lands, or way
ter within this State where wild game
or fish are known to range or stray for
Hon. J. G. Lyle.5- Page 10
any of the purposes enumerated in Article
919, 'Penal Code, without a search.warbant,
and over the'protest of the owner or per-
son in charge or possession thereof.
Yours very truly,
ATTORNEY GENERALOF TEXAS
..
A-i'TORNEP.
GENERAL OF TEXAS
BWB/LH/erc
APPROVED? OPINION COIWtTTEE By B,W.B., CHAIRMAN