THE A MEY GENE
The Honorable Clayton T. Garrison Opinion No. H- 151
Executive Director
Texas Parks and Wildlife Department Re: Is the Texas Parks and
John H. Reagan Building Wildlife Commission
Austin, Texas 78701 authorized to adopt regu-
lations pursuant to the
Uniform Wildlife Regula-
tory Act (Article 978j-1,
V. T. P. C. ) or other sta-
tutes for the purpose of
enforcing hunter safety
on small private tracts
Dear Mr. Garrison: of land?
Your letter requesting our opinion asks whether the Texas Parks and
Wildlife Commission is authorized by any statute to adopt and enforce regu-
lations providing for hunter safety on small private tracts of land. As back-
ground you indicate that, in recent years, it has become fairly common for
people to divide a large tract of land into numerous small tracts which are
purchased by individuals for hunting deer or other game animals. You state
that the Department has received several complaints and, as one individual
stated, “Bullets do not stop at property lines. ”
As your letter tacitly recognizes, the Parks and Wildlife Department
may only exercise su~ch powers as have been granted it by the Legislature.
Therefore the answer to your question requires an examination of the perti-
nent statutes.
The Parks and Wildllife Department, under the “po,licy direction” of a
Commission, was created in 1963 out of the Game and Fish Commission and
the State Parks Board, assuming all the powers, duties and authorities of each.
Acts 1963, 58th Leg., ch. 58, p. 104; Article 978f-3a, V. T.P. C.
p. 704
The Honorable Clayton T. Garrison, page 2 (H-151)
From time to time additional responsibilities have been added as,
for instance, in 1965 when the Department was given control and custody
over several historic State battlegrounds. (Acts 1965, 59th Leg., ch. 225,
p. 441; Article 6071b, V, T. C. S.) In 1971, it was given certain powers over
the Texas State Railroad. (Acts 197:1, 62nd Leg., ch. 311, p- 1249; Article
6069c, V.T.C.S.)
None of these statutes, however, authorized one of the predecessors
of the Department or the Department itself to regulate the use of firearms.
The Penal Code, Title 9, Chapter 4 prohibits the unlawful carrying of arms,
but these provisions do not apply “to the carrying of arms on one’s own”
property. Article 484, V. T. P. C., and see $46.03(2) of the 1973 Penal
Code (Acts 1973, 63rd Leg., ch. 399. p, 883).
Similarly, there were many Articles in the Penal Code regulating
huntina and designed to protect game. Vernon’s Texas Penal Code, Title
13, Chapter 6. Such regulationsas there were with reference to weapons
used in hunting were designed to protect the hunted, not the hunter or other
human beings. See, for example, Articles 879a-5, 87921-6, 90:1 and 902,
v. T.P. c.
In 1971, the Legislature adopted what is now Article 6067b, V. T. C. S.,
(Acts 1971, 62nd Leg., ch. 383, p. 1403). Section ,Lof the statute provides:
“The Parks and Wildlife Commission is hereby
authorized to promulgate reasonable rules and regulations
governing the health, safety and protection of persons and
property within State parks, historic sites, scientific areas,
or forts administered by the Parks and Wildlife Department,
as may hereafter be necessary. Said rules and regulations
may be promulgated to govern the conservation, preserva-
tion and use of State property whether natural features or
constructed facilities; the abusive, disruptive or destructive
conduct of persons; the activities of park users including
camping, swimming, boating, fishing or other recreational
activities; the disposal of garbage, sewage or refuse; the
possession of pets or animals; the regulation of traffic and
p. 705
The Honorable Clayton T. Garrison, page’ 3 (H-151 1
parking; and the conduct of individuals which endangers
the health or safety of park users or their property.
(emphasis added)
As a prerequisite to adopting a rule or regulation, $2 of the statute
requires notice and a hearing. However, this statute authorizes rules and
regulations applicab:te only to :lands within the custody and control of the
Department and Commission. Cf. Attorney General Opinion M-953 (1971).
The 63rd Legislature (Acts 1973, 63r.d Leg,, ch. 474, p. 1281) has
authorized the Commission to prohibit the use of firearms on state property
adjacent to state parks ,located within one mile of coastal waters of the state.
The fact tl& the Legislature on two recent occasions has seen fit to
expressly limit the powers of the Texas Parks and Wild,life Department and
Commission to regulate hunting and the use of firearms to state owned prop-
erty, coupled with the provisions of the new Penal Code exempting from the
regulation of weapons, firearms used on one’s own property compels us to
conc:lude that it has not been the intention of the Legislature to extend to the
Department or Commission authority to adopt regulations to enforce hunter
safety on small private tracts of land.
?
While the Uniform Wildlife Regulatory Act (Article 978j-1, V. T.P. C.)
gives to the Commission extensive powers to regu,late hunting so as to con-
serve wildlife, it does not expressly give the Commission the power about
which you inquire.
SUMMARY
In the absence of expres,s legislativeauthority, the Parks
and Wildlife Department may’,not adopt regulations f’or the I&-
pose of enforc’ing hunter safety on private-tracts of land.
Attorney General of Texas
p. 706
The Honorable Clayton T. Garrison, page 4 (H-151)
APPPOVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 707