                          TEI~E ATTORNEY    GENERAL
                                   OF TEXAS
                                       A11mrrxru.-lkXAS            78711
  .JOHN   L.   RILL
*x-l-oRNRY GENERAn.
                                               July 10, 1973


      The Honorable Clayton T. Garrison                           Opinion No.    H-   60
      Executive Director
      Texas Parks and Wildlife Dept.                              Re:      Does the Parks and Wi.ldlife
      John H. Reagan Building                                              Department have the authority
      Austin,  Texas 78701                                                 to authorize the trapping and
                                                                           shipment of wild animals and/or
                                                                           fish to other countries,  either
                                                                           in ,exchange for other wild animals
                                                                           and/or fish of similar or equal
      Dear Mr.         Garrison:                                           value or without such exchange?

          Your        request   for any opinion of this office          asks the following   question:

                    “Does the Parks and Wildlife Department have the
                authority to authorize the trapping and shipment
                of wild animals and/or fish to other countries,
                either in exchange for other wild animals and/or
                fish of similar or equal value or without such
                exchange? ”

           The Parks and Wildlife Department,      as the successor    to the Game and
      Fish Commission     and the State Parks Board, is directed to exercise        all the
      powers and duties formerly     vested in those agencies.     Art. 978-3a( 5). V. T. P. C.
      As an agency of the State, the Department      is limited to the exercise    of only
     .those powers the Legislature     has expressly   and impliedly delegated to it.
      State V. Jackson,   376 S. W. 2d 341 (Tex. 1964).    Your question,    then, is whether
      the Legislature   has delegated to the Parks and Wildlife Department        the authority
      to permit the capture and transportation     of wild animals and fish to other countries.

          Article       871a,   V. T. P. C.   reads:

                    “All wild animals,  wild birds,  and wild fowl within
                the borders of this State are hereby declared to be
                the property of the people of this State. ”




                                                       p.   256
The Honorable    Clayton   T.   Garrison,    page 2   (H-60)


As a consequence   of their status as “state property” these wildlife
resources   may only be appropriated   by persons under circumstances           and
for purposes authorized by State law.

    The Legislature   has given the Parks and Wildlife Department the
broadest possible   regulatory authority when the Department  is itself the
one doing the capturing and transporting   of wildlife:

             “The Parks and Wildlife Department    at all times
        shall have the power to take, transport,   release or
        manage any of the wildlife and fish of this State for
        investigation, propagation,  distribution, or scientific
        purpose*. ” Article 913( 5), V. T. P. C. (Emphasis    added).

This enactment amended prior law by removing a limitation that the
Department    could only transport captured wildlife within the State (Acts 1925,
 39th Leg.,  p. 394, Ch. 172) and by adding the authority to take and transport
fish in addition to wildlife.    Therefore, our opinion is that the Department
itself is authorized at all times to capture and transport wildife or fish
within or without the State if for the purpose of investigation,   propagation,
distribution  or science.     This power does not depend upon an exchange of
wildlife of “equal value”.

     The Parks and Wildl;ife Department has also been given the authority
to permit private individuals under certain circumstances              to capture and
transport State wildlife.     Article 871b. V. T. P. C. , requires        a written
permit from Parks and Wildlife Commission             before “game animals,         or
game birds from the wild?maybe           transported    for the purpose of “better
wildlife management      by making adjustments       in game population. ” Article
913 (1). V. T. P. C.,   empowers the Department mpermit              “qualified persons
to take-protected    wildlife or fish for propagation,      zoological    gardens or
scientific purposes. I’ Neither statute unambiguously            authorizes    extra-
territorial  transportation   of wildlife.    However,     Article 874, V. T. P. C. , as
is protects nongame birds and prohrbits their shipment by persons “to a
point within or without the state, . . . , except as permitted by Article
913. ‘1 would imply that the Legislature      intended Article 913 to author.iee the
Department     to permit persons to transport wildlife to points “without the
State, I’ and that term would include transportat?on         to other countries.




                                       p.   257
The Honorable    Clayton   T.   Garrison,     page 3 (H-60)




     Before the Department amy issue permits for the capture and
transportation   of protected wildlife it mus t determine that the person
is “qualified”,   meaning capable of capturing thesnimal            in a scientific
manner without cruelty (Article        913, $ la), and that the applicati.on is
“endorsed by two recognized         specialists   in the biological   field concerned,
who are residents of the U.S. and have known the applicant for at least
five years. ” Article 913, $1.        Other rules and regulations        may be
prescribed    by the Department.       Article 913, $ 3. No doubt the Legis-
lature intended by these minimal guidelines to assure that the purpose of
the taking is a legitimate    and important one; and that the animals be safely
and humanely transported       to their destination and cared for thereafter.
The Department’s      responsibility    in issuing permits is to see that this
intention is carried out.

    Therefore,    our opinion is that the Parks and Wildlife Department
may issue permits pursuant to its rules and regulations        for the capture
and transportation   of wildlife or fish to points within or without the State
for the purpose of propagation,     zoological  gardens,  science or better
wildlife management     if the applicant is “qualified”  and his application
“endorsed”   by two specialists   in accordance   with Article 913(l). V. T. P. C.

                             SUMMARY.

             Under Article 913 (1). Vernon’s      Texas Penal Code,
        the Parks and Wildlife Department         may at all times
        capture and transport wildlife or fish of this State for
        investigation,    propagation,  distribution   or science;
        and may issue permits to persons to do so in accord-
        ance with Article 913(l), Vernon’s       Texas Penal Code,
        for those purposes and the additional one of zoological
        gardens.     The Department    does not have to require an
         “equal exchange” as a condition for a permit to capture
        and transport wildlife to other countries.       However,     it
        may require such an exchange.         All permits must be
        issued entirely in accordance     with the legislature     and
        regulatory    requirements.




                                     u       Attorney   General   of Texas



                                        p.    258
The Honorable   Clayton   T.   Garrison,        page 4 (H-60)




APPR   VED:
 r   R




sLc?lLLM, KENDALI
DAVID M.  KENDALL,
Opinion Committee
                          Chairman




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