,
”
HE A~~-oRNEY GENERAL
OF WAS
AUSTIIS. TEXAS 7Q711
CRAWFORD c. MARTIX
*x-rOHNEY carGuER*l.
February 2, 1972
Mr. James U. Cross Opinion No. M-1062
Executive Director
Parks and Wildlife Department Re: Whether Article 880d,
John H. Reagan Building Vernon's Penal Code,
Austin, Texas 78701 applies to the use of
exotic species of fal-
Dear Mr. Cross: cons.
You have asked our opinion whether the provisions of
Article 880d, Vernon's Penal Codel- in particular Sections
2, 3, 4, 7, and 9 of that article - apply to falconers us-
ing exotic species of raptors. This opinion is restricted
to the question asked.
The capture , possession, and use of raptors or birds
of prey is regulated by Article 880d, which was enacted by
the Sixty-second Legislature. Under Sections 1 (b), 1 (c),
and 6, the Texas Parks and Wildlife Department (hereinafter
"Department") may prescribe reasonable rules and regulations
to carry out the provisions of the act. Pursuant to this
authority, the Department has issued the "Texas Parks and
Wildlife Department Policy on the Taking and Possession of
Rantors for Falconry Purposes as adopted September 30, 1971."
This regulation in Section 1.03 defines *raptor" as n0 o .
any member of the Orders Falconiformesand Strigiformes"
and "falconry" as *I. . .the utilization of any member of the
Orders Strigiformes or Falconiformes for the taking of wild
birds or wild mammals during any prescribed open seasons."
No definition is given in either the Department regul-
ation or the statute-to the term "native." This term is
defined by Webster's Third New International Dictionary as
I .grown, produced, ore originating in a particular place
&'a region or country): not foreign or exotic. . *grown,
produced, or originating-in the-vicinity: not transported
1
All statutes mentioned are parts of Vernon's Penal
Code unless otherwise indicated. This Article was enacted
by Acts 62nd Leg., R.S., 1971, S.B. 372, ch. 176, p. 987.
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Honorable James U. Cross, page 2 (M-1062)
from a distant region. 0 .living or growning naturally in
a given region., 0 0 an
Among the definitions of "exotic: in Webster's Third
New International Dictionary is 'I0 0 Ofrom another country:
not native to the place where found. o o ." This office
is informed that the Department defines the term "exotic
species of raptors" to mean those raptors not native to
Texas.
While penal laws generally are to be construed strictly,
they are not construed so strictly as to defeat the~legis-
lative intent when the intent is plainly manifest or is fair-
ly deducible from the statutory language, 53 Tex.Jur,Zd 304,
Statutes, Section 198. Criminal laws should be construed ac-
cording to the plain import of the language used. Article
7. A penal statute should be given a reasonable and common
sense interpretation, Biszelle v. State, 116 S,W,2d 385 (Tex.
Crim., 1938).
The plain import of Article 880d is to regulate the
sport of falconry, With the exception of specific references
to native raptors in Section 1 p the various provisions of the
statute make no express distinction between.native~-land-exotic
species of raptors, Section 5,~,which retains, as property of,,
the people of this state all raptors captured;takenb or pos-
sessed in this state actually is not limited by its terms to
native raptors; but only~ wild animals, birds, and fowls with-
in the borders of the state are made the property of the
~people. Article 871a, Thus Section 5 can apply only to na-
tive raptors. Section 3 is the only authority in Texas law.
by which any person may hunt with a raptor, whether native
or exotic; The provisions in Section 3 for a nonresident's
hunting license and in Section 7 for a falconer's permit for
a nonresident who establishes.permanent Texas residence and
who holds raptors under a'permit in another, state makes clear
that the legislature intended to regulate the possession and
use of exotic as well as native raptors, This view is strength-
ened by the reference in Section 6 to those raptors classified
by the United States Bureau of Sports, Fisheries, and Wildlife
as rare or endangered, Consequently, it is OUT opinion that
Article 880d applies to the possession and use of exotic as
well as native raptors, except for those provisions of Section
1 which apply expressly to native raptors and Section 5.
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Honorable James U. Cross, page 3 (M-1062)
CONCLUSION
The provisions of Article 880d, Vernon's Penal
Code, apply to the possessionand use~.of exotic as
well as native species of raptors, except that Section
1 insofar as it refers to native raptors and Section
5 apply only to native raptors;
ney General of Texas
Prepared by Roland Daniel Green, III
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W.E. Allen, Co-Chairman
Sally Phillips
Jim Maxwell
Ken Nordquist
Linward Shivers
SAM MC DANIEL
Staff Legal Assistants
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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