Honorable Alex Jung
County Attorney
Fredericksburg, Texas
Dear Sir: Opinion No. O-5723
Re: Do the facts under consideration
constitute "hunting with firearms,"
underArticle 1377 of Vernon's-'
Annotated Penal Code? And related
questions.
Your request for an opinion has been received by this
department. We quote from your letter as follows:
"I am submitting the following questions, in-
volving the meaning of certain provisions of Art.
1377, Penal Cod,eof Texas, for your opinion:
"The facts are these:
"Defendants, Fiedler, a member of the armed
forces on furlough, and Wahrmund, the son of the
owner of the land adjoinIng that entered upon and
a member of his family, stand charged with enter-
ing upon the inclosed lands of Ahrens, and hunt-
ing therein with flrearms.
"Prosecuting witness was sitting in a tree
in Young's adjoining pasture near the partition
fence between such lands of Ahrens and Wahrmund,
watching for trespassers upon the Ahrens lands.
Fiedler and Wahrmund, the defendants, were seen
by her about one hundred feet from such partition
fence in the Ahrens pasture and coming up near
the tree upon which she was sitting. Each of the
defendants were in possession of a gun, whether
dismantled and the make of which prosecuting wlt-
ness did not notIce, Defendants say their guns
were dismantled. Defendants asked prosecuting
witness whether or not she had been able to get
her deer;and upon receiving a negative answer,
defendant, FIedler, jumped over the fence out of
the Ahrens pasture fnto the Wahrmund pasture, stat-
ing: 'I'll show you I can get one right qu1ck.l
Honorable Alex Jung, page 2 O-5723
Prosecuting witness had not,previously seen the
defendants that day but had heard a shot which
sounded like a 22 rifle about two or three hours
before defendants came up. Defendant-Wahrmund
says, and he is confirmed in this by his said
neighbor Ahrens (the owner of the land entered
won), that the latter had granted him permission
to hunt in such pasture about .twoyears previous-
ly and that such permission had never been with-
drawn. Hunting rights for the 1943 deer season,
Nov. 16th to Jan. lst, had been verbally assign-
ed by said Ahrens to Gold, the husband of the
prosecuting witness, and Gold had not been ad-
vised of such permfsslon,granted Wahrmund, except-
ing that Ahrens had retafned the right for him-
self and members of his family to hunt on such
premlses. Gold had similarly acquired the hunt-
ing rights during the two OP three previous years.
There was a freshly plowed field on the side of
the Wahrmund-Ahrens partition fence where lay the
Wahrmund lands. Defendants stated that they had
merely crossed the par,tFtionfence Into the Ahrens
pasture and walked along such fence on the other
side for convenience -- better walking. The own-
er, Ahrens, was agreeable to this.
"Gold paid Ahrens $50" for the hunting rights
for such l* Mos, period -- 225 AC,, of Which 130
AC. is In field, A11 of the lands concerned are
lnclosed as provfded by such article,
"QuestIon I
"Assuming all the foregoing facts to be true,
do they constitute 'hunting with firearms' as con-
templated by said Art, 1377"a
"Question 2
"Assumfng all such facts to be true, did the
permissIon granted by Ahrens ,toWahrmund about 2
Yrs. before constitute such consent as would be
a defense to a trespassrng charge under such Arti-
cle provided all the other elements of the of-
fense had existed?
'Question 3
"Assuming the fac,tshereinbefore recited to
be true and It be youp opinion that the acts of
Honorable Alex Jung, page 3 O-5723
the defendants (independent of any question of
consent) did not constitute 'huntfng with fire-
arms,' did such acts constitute 'depredating' as
contemplated and forbidden under such article?
"Question 4
"The Ahrens land, over all of which the Gold
hunting rightsextended, being 225 AC., at 25d
per AC. per year, the highest amount chargeable
under such Art. 1377 (to be assured of protectton
against trespassers) would be $ 6.25. Would the
fact of charging $50, for the 12 Mos. season.be
fatal as a defense to the trespassing charge, as-
suming all other elements of the offense existed?
I,
D . . . . .(I
Article 1377, Vernon's Annotated Penal Statutes, pro-
vides as follows:
"Entering inclosed land to hunt or fish, --
Whoever shall enter upon the lnclosed land of
another without the consent of the owner, pro-
prletor or agent In charge thereof, and therein
hunt with firearms or thereon catch or take or
attempt to catch or take any fish from any pond,
lake, tank OP stream, OP In any manner depredate
upon the same, shall be gulltg of a misdemeanor
and upon conviction thereof, shall be flned any
sum not less than $10.00 nor more than $200.00
and by a forfefture of his hunting license and
the right to hunt in the State of Texas for a
period of one year from the date of his convic-
tion. By 'Inclosed lands' is meant such lands
as are in use for agriculture or grazing purposes
or for any other purpose, and inclosed by any
structure for fencing either of wood or iron or
combination thereof, or wood and wire, or partly
by water or stream, canyon, brush, rock or rocks,
bluffs or Island, Proof of ownership or lease
may be made by parol testimony. Provided, how-
ever, that this Act shall not apply to inclosed
lands which are rented or leased for hunting or
fishing or camping privileges where the owner,
proprietor, or agent in charge or any person for
him by any and every means has received or con-
tracted to receive more than twenty-five cents
per acre per year or any part of a year for such
hunting, fishing or camping privileges, or where
Honorable Alex Jung, page 4 O-5723
more than $4-00 per day per person is charged for
such huntFng, flshlng OP camping privileges. And
provided further this exemption shall exist fop a
period of one year from the date of the receipt
of such sum or sums of money,
"Sec. 2, Any person found upon the inclosed
lands of another withou,t,theowner's consent
shall be subject to arrest by any peace officer,
and such arrest may be made without warrant of
arrest p"
Webster's International defines hunting as "the pursuit
or chase of game or wild animals." It defines flrearm as "any
weapon from which a shot is discharged by an explosive as gun-
powder,"
We feel tha% a firearm dismantled is as deadly as one
mantled since the parts could soon be put together, 1% fol-
lows that we believe one Fn the pursuit or chase of game with
firearms, though temporarLlg dismantled, is "hunting wLth fire-
arms," as contemplated In Article 1377, supra. Whether defend-
ants were or were not In ,t'he
pursuft or chase of game, whether
they carried firearms, are questions of fact to be determined
by a jury.
We therefore canno,%answer your first question.
Wftb regard to your second question, you state defendant
Wahrmund was given pe:rmisslon,%ohunt on ,theland involved~ by
the owner himself, Ahrens, You further sta%e, with both par,tfes
agreed, %ha,t,%hLspermission ,thoughgranted %wo years previous,
had never b&en afthdrawn,
Artfcle 1377, supra, provides, in part, as follows:
"Whoever shall er::erupon 0 I 0 without the
consent of the owner, proprie'toror agent in
charge thereof, i e y S"
Thfs s%atu?e requires a ',wan~t
of consent.
If the orQlna1 consent gran?ed Ahrens was consen% to
hunt thereaf%er [,aques%ion of fact:)and thrs was not with-
drawn a% the ,%imeof 'thealleged vio'la%ion,there is no wan'%
of consent and 'weans~wes~
your second question in %he affirmatfve,
Webster's International deffnes depredate as "to subject
to plunder and pillages;to despoil; to lay wasteal
. -. .
Honorable Alex Jung, page 5 O-5723
The Penal Code provides that words used therein are to
be construed In the sense In which they are understood in connaon
language unless their meaning is specifically defined. See
Article 8, Vernon's Annotated Penal Statutes.
You will observe that Article 1377, supra, says: "Who-
ever shall enter upon and therein hunt . 0 a or in any manner
depredate upon the same, shall 0 .,,.. (Emphasis ours) The
wording of the statute shows that depredate" contemplates
something more than "entering" OP "hunting." In our opinion
it refers to a pillaging or laying waste, and we answer your
third question in the negative.
With~reference to your fourth question, you will observe
the Statute, Article 1377, supra, provides:
this Act shall no% apply . o . where
' the owner s a 0 has received or contracted
D . .
to receive more than twenty five cents per acre
per y$ar or any part of a year for such hunting.
. e 9 (Emphasis ours)
We believe the situation you describe, in which $50 was
paid for hun%ing rights on 225 acres for 1s months, does not
come within the above provlsion, making Article 1377 inapplica-
ble, because in your case the statute requires more than 25
cents per acre for "any part of a year, (13 months).
Truetlng this satisfactorily answers your questlons,
and with best regards, we are
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Fred C. Chandler
Fred C, Chandler
Assistant
By s/Elton M, Ryder, Jr.
EME:db:wc Elton M. Hyder, Jr.
APPROVED MAYO8, 1944
s/Gee. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/OS Chairman
Untitled Texas Attorney General Opinion
Combined Opinion