January 7, 1975
The Honorable Clayton T. Garrison Opinion No. H- 487
Executive Director
Texas Parks and Wildlife Department Re: Jurisdiction over
John H. Reagan Building juveniles, 14 to 17
Austin, Texas 78701 years of age for
violation of game and
Dear Mr. Garrison: fish laws.
You have requested our opinion concerning jurisdiction over violations
of the game and fish laws and the Water Safety Act, V. T. C. S., article
9206 (formerly Penal Code, article 1722a) when the defendant is between
14 and 17 years of age.
The fish and game laws and the Water Safety Act provide for different
penalties and jurisdiction for various violations. However, section 8.07(b)
of the Texas Penal Code provides that a person under 17 years of age may
not be prosecuted for or convicted of any offense other than aggravated
perjury, a violation of a traffic ordinance, and driving while intoxicated
unless the Juvenile Court waives, jurisdiction and certifies him to a District
Court for criminal prosecution. Section 54.02 of the Family Code restricts
such a waiver and certification to felony cases. Since violations of the
fish and game laws or the Water Safety Act are with few exceptions mi,s-
demeanors, this certification process will be unavailable as a means for
prosecuting persons under 17 years of age for most violations. Nevertheless,
this procedure may be utilized when the violation constitutes a felony, which
is defined as an offense punishable by confinement in the penitentiary.
Penal Code, $1.07 (14).
Where the offense is a misdemeanor other than those listed above,
section 8.07 of the Penal Code in effect requires the case to be brought as
a juvenile proceeding under Title III of the Family Code. Unless certified
to the District Court violations constituting a felony must also be brought
under Title III. Section 51.04 of the Family Code gives the Juvenile Court
exclusive jurisdiction over proceedings under Title III. Section 51.03(a)
defines delinquent conduct as that which violates a penal law punishable
by imprisonment or confinement in jail. Section 51, 03(b)(l) specifies conduct
po 2208
The Honorable Clayton T. Garrison, page 2 (H-487)
that on three or more occasions violates a penal law of the grade of
misdemeanor that are punishable by fine only as “conduct indicating a
need for supervision.” The question of whether a child has engaged
in delinquent conduct or conduct indicating a need for supervision is a
matter within the jurisdiction of the Juvenile Court. Sec. 51.04.
You also ask what is the correct procedure for your commissioned
officers to follow when they find juveniles in violation of game and fish
laws punishable by fine only.
A commissioned officer of the Parks and Wildlife Department is a
peace officer, Tex. Code Grim. Proc., art. 2.12(D). A peace officer
may arrest a person who commits any offense within his presence. Tex.
Code Crim. Proc., art. 14.01(b). A child may be taken into custody
pursuant to the laws of arrest. Family Code, sec. 52.01 (a)(2). Alterna-
tively, ‘a child may be issued a warning notice in lieu of taking him into
custody, if certain guidelines for such a disposition have been established
by the law enforcement agency involved and approved by the juvenile
court of the county. See
- Family Code, sec. 52.01(c); sec. 52.03.
Where the officer takes the child into custody, he shall,without
unnecessary delay, take action as specified in Family Code sectibn52.02.
These actions include releasing the child to a parent or guardian upon
the adult’s promise to bring the child before the juvenile court on request,
bringing the child to the office or official designated by the juvenile court,
bringing the child to a detention facility designated by the juvenile court,
or disposing of the case without referral to court as provided in Family
Code section 52.03. Such a disposition can include a conference with
the child and his parent, guardian, or custodian.
While a single violation of a game and fish misdemeanor is not a
basis on which a child may be determined to be in need of supervision,
three occurrences of such conduct do provide a basis for such a deter-
mination. Family Code, sec. 51.03. The law enforcement files and
records of such violations may be utilized by the juvenile court in sub-
sequent proceedings concerning the child. Family Code, sec. 51.14(d)(l).
p. 2209
The Honorable Clayton T. Garrison, page 3 (H-4871
SUMMARY
Jurisdiction over a minor between 14 and 17 years
old for a violation of fish and game misdemeanor offenses
is in the Juvenile Courts. The procedure for handling
these minors can involve taking the minors into custody.
Alternatively, a law enforcement agency may adopt
guidelines for disposition of cases involving children
without referral to the juvenile court, which guidelines
must be approved by the juvenile court of the county.
If the minor is taken into custody, the officer, without
unnecessary delay, shall take the action specified in
article 52. 02 of the Family Code.
Very truly yours,
Attorney Ge,neral of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2210
Untitled Texas Attorney General Opinion
Combined Opinion