OFFICE OF THE Al7ORNEY GENERAL OF TEXAS
AUSTIN
Honorable Tom I,.Hartley
. Criminal District Attorney
Edinburg, Texas
Dear Sir: Attention: Jaok Ross
Opinion No. O-3873
Re: Does Seotion 5 of House Bill
186 (new.whIte wing and dove
law) prohibit the hunting,
taking, shooting or killing
or wild ducks, or other
migratory bIrUs, In the pro-
hibited area designated In
said seotfon?
ln reply to your letter of recent date requesting
our opinion on the question stated above, we.deem It proper
to quote'the.followIng from your letter:
Y3eotion Five (3) of H. B. No. 186, after
setting out that portion of the State Inoluded ,
In the prohibited area, reads as follows:
n*.....and said area Is hereby set aside
as a nesting and propagating grounds for
white-winged doves, ohaohalaca and other
within which area It shell bemw-
%%t any time to hunt, take, shoot or
kill eng kind or species of wild ITOWl
hereinabove mentioned.'
Qeotion Two (2) of said Bill reads In part
as follows:
"*It shall be unlatiul to huntor shoot
mourning doves, white-winged doves, or a
-T35
migratory bird. or any other game bir
this State, with a shotgun larger than ten
Honorable Tom L. Hartley, Page 2
gauge, and that is capable of holding
more than three (3) shells at one
loading - - - -.*
"The title of said Bill reads In part as
follows:
nt - - - - presoribing the time when
It shall be legal to hunt certain game,
setting aside certain territory as a
nesting and propagating ground for oer-
tain game, and prohibiting hunting and
shooting therein;.......'
Weotlon 9 of said ~lllreads In part as
follows :
*I.,..,. and that there Is urgent need
of setting aside as a game sanctuary the
area desoribed In this Aot as a nesting
and propagating grounds wherein all hunt-
ing and shooting of game birds and game
animals shall be prohibited so as to
oonserve and proteot white-winged doves,
red-billed pigeona, and ohaohalaoa, and
other game that neat and propagate In
said erea, all oreate an emergenay and
publio necessity* eta.
*Ii the wording 'hereinabove mentioned' In
Section Five (5) relates to the entire bill it
oertainly would include any migratory bird, suoh
as wild duck. It is my opinion that said lang-
uage relates to the entire bill.
*If the wording *hereinabove mentioned' In
said section Inoludes only 3eotion Five (3)
there may be some queetion as to the Intention
of the Legislature, but taking Section Five
(5) with the title of the Bill * - - - and
prohibiting hunting and shooting therein; ---*
and the reference to *other game* In aonnec-
tion with the language that follows It, ie,
that It shall be unlawful * -- at any time to
hunt, take, shoot or kill any kind or speoiee
Honorable Tom L. Hartley, Page 3
of wild fowl hereinabove mentioned' (and also
taking Into consideration the language of
Section Nine (9) as set out above) it is my
opinion that said Seotion Five (5) of said
Bill prohibits the hunting, taking, shooting
or killing of wild duoks and other game
fowls In the prohibited area described."
For convenience In reference, we Incorporate the
whole of Seotion 5 of the Act under consideration. It fol-
lows :
"Sec. 5. That portion of the State lying
between the Rio Grande River and a line extend-
ing from a point on the Rio Grande River North
along the oomon boundary~line of Zapata and
Starr Counties to the South.boundary line of
State Highway 4; thence along the South bound-
ary line of the right of way of state,HIghway
4 to a point where said South right of way
boundary Interssots the West boundary of the
oity limits of the City of Brownsville In
Oameroh County; thenoe along the West oity
limits of the City of Brownsville to the
point where same Interseots the Rio Grande
River, is hereby recognized as an area In
whioh white-winged doves and chaohalaca nest
and propagate; and said area Is hereby set
aside as a nesting and propagating grounds
ior white-winged doves, ohachalaoa and other
ame within which area It shall be unla
%%y time to hunt, take, shoot, or kI?%y
kind or speoiea of wild fowl hereinabove men-
,Eed.*
Seotion 1 of House Bill No.,186 prescribes the open
season for taking of mourning doves and white-winged doves In
this state. Section 2 fixes the bag limits of such doves.
Seotion 3 limits the size of guns and number of
shells to be used throughout the State In hunting and shoot-
ing *mourning doves, white-winged doves, or any migratory
bird, or any other game bird of this state." mere Is no
lImItatI,onof territory wherein this section o? the stat-
ute Is applicable; It applies to all bird hunters within the
State.
Honorable Tom L. Hartley, page 4
Seotion 4 authorizes game wardens to take affi-
davits; there la no mention of any birds In this seotion.
From Sutherland on Statutory Construction, we take the
following quotation;
*In dealding y:hetherwords of reference
are to be understood In the largest or In the
narrowest sense, whether they extend to the
whole .*+ to a part only of any act, the oourt
considers the subjeot matter of the section
In whioh such words are~found, and oontrasts
It with that of the preceding sections. Thus,
where a seotion whioh dealt with a new subject
used the words tnothing hereinbefore oontained,'
It was held that the reference was confined
to matters oontained In that seotion and did
hot extend to earlier portions of the Act.*
(Sutherland1 Statutory Construotion, Sec. 257,
p. 338; Lew 8' Sutherland Statutory Oonatruo-
tion, Seo. 405, p. 789.)
In Seotion 5, the subjeot matter Is the oreatlon
of a game preserve, and deals only with Its establishment
and the limitation of hunting within Its boundaries. It
is olear to us that the use of the undereoorsd words In
the phrase White-winged doves, chachalaoa
Is restrioted by application of the doctrine o
It Is likewise olear that the
the final sentenoe of section 5 (it be unlawful
at any time to hunt, take, shoot, or kill any kind or
epeoies of wild fowl hereinabove mentioned" hamferenoe
nl to those mentioned 1 th ti I "white-winged
loves and ohaohalaoan andnalleo~e~heo%ff&%C "kind or
speoiea" of same,
We observe your references to the title and emer-
genoy alause of the Aot. However, neither the title of a
statute, nor Its emergency clause has any enaoting foroe.
The body of the Act controls. Red River National Sank v.
Ferguson, 109 Tex. 287, 206 3. W. 923, affirming 192 S.W.
1088; Lloyd's Casualty Co.,v. Lem, (Civ. App., writ dis-
missed) 62 S.W. (2d) 497; Missouri-Kansas-Texas Ry. Co. V.
Thomason, (Civ. App., writ refused) 280'S.W. 525; 39 Tex.
JUT. 226, Sec. 121.
Honorable Tom L, Hartley, Page 5
In view of the foregoing, It Is our opinion that
J Section 5 of House Bill No: 186 does not prohibit &he hunt-
ing* taking, shooting or killing of wild duoks or other
migratory b de (other than all kinds and species of white-
winged dovdf and ohaohalaoa)In the area designated In said
seotion.
Yours very truly
APPEOVED 8Ep 15, 1941
A!iTOF@IEYGENERALOFTEXAS
By (8) Benjamin Woodall
Aseietsnt
BW:cO
aa: a.ame Fish h Oyster aomaIsslon !
Au&.l, Texas
Op~inlonaomm3.ttee
By B. W. B. OhaIXnU2.U