Untitled Texas Attorney General Opinion

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