d    .




    Hon.     F.   M.    Cowmert
    Director of Law Enforcement
    Game, Fioh and Oyster Commismion
    Austin, Texas      Opinion No. V-59
                                   Re:   Whether or not under Article 910
                                         of the Penal Code it is unlawful
                                         to kill a wild female deer.
    Dear Sir:
                       We have your
                              request for an opinion upon                the
    above titled   subject matter, in the last paragraph                 of
    which you say: “In the final analysis,     the question               is,
    in proseoutiona    under Art,. 910, Penal Code 192’5, is              it
    necessary always to prove that the dear was wild?”
                       Article    91Qy insofar   a8 pertinent,    is as fol-
    lows :
                   “It shall be unlawful~for  any person to
             take, kill,  * * *~ shoot at, hunt or o;s+est,
             dead or alive any wild female d~eer, 8      .
              We shall   first determine, as best we may, juet
    what the Legislature    meant by the term “wild female deer”.
               It is a fundamental rule of statutory     construc-
    tion that words used therein are to be construed in their
    usual, ordinary,   commonly-accepted meaning, unless the
    contrary thereof plainly appears from the context.        This
    rule is applioable   alike to civil  and penal statutes.

                       Art.   7 of the Penal Code declares       that:
                   *This code and every other law upon the
             subject of crime which may be enacted, shall
             be construed according to the plain import of
             the language in which it is written,    without
             regard to the distinction   usually maUe between
             the oonstruction   of penal laws and laws upon
             other subjects   g 5 a.*
Hon. P. Y. Celeert2   Page 2, V&59




 leatees, and iia abt 04rtxfiaeit by et3 4Stelamur8 apptbxent-
By suf~iclent   to hQl& it, ,ox v$aibky tethered or within
the Vis$bl8'obntrCl   0r some person,
          This CCnstIUCtiQn COmpoPt0 with the cl8ax pur-
pQB8 Of this Statute, that is, t0 pXeV4nt the slaughter
of wild deer es evidenced by OCR policy of wild game pres-
ematfon.
           Within the meaning of this rule, a deer, loose
on the wrang8w would be a *wild" deer within the meaning
oS.the statute   even thCugh it, had formerly b,een at any
time, and r0r any length 0r time, in captivfty,
             Et is worthy OS nC,tice that under,Seotion    3 of
t&.t title,   Lioense ror Game Elreeder, 0r El. 8. 275, bets
1!&3 9 48x& ‘Lea * ‘I it is declared  that *All game birds or
g&&8 aaf#Mh?. held Under a game br8eder's       lice&Be shall
Mnein Under the. full fQ,XC'oe    of any or all laws Cr regula-
tiens Qr this State pertaining       tm wild game birds or
wild game animals in order that these necessary police
rqgul;ations   r0r the preservation or native Sam8 species
may b8 ,enfeDXd ,ts the benefit of the State."
           And the succeeding  section turther-  declare&:
*Ior the purpose or this aot 'Captivity'     is defined a8
an enclosure suitable   for retaining, and that will re-
tain at all times Under reasonable and ordinary circum-
stances the bird, fowl, or animal so enclosed,      and so .,
            Thle statute would psrhapr ,jpstiiti a
alaeeiriaetioa   thra we hare mada aberm, that La, fat0
wild Zemale deer end tomale de.? in orptiritya
           Specifioal3y,     rtth rea aat to P)Pr lmt gum-
tloa, we beg to edrise ar fou qu! to roll know that it. 1s
er8sntial lp. a crfalnnl proesoutloxl for the State tg
prove every rwi ~6r~ntial to th0 005i66io~ or th0 0ri~
ob8rged, and this melee la the prewnt oaae, that the
strte wquld be requlre(l tr prove tint the r080ibha00p
was a Wwild* fernala deei.       This oould be pnmd,     howerrr,
l$thor by direct erideacs or ofrowtantial          ofiaeme.
OrdQfarlly, we think, the prori~@ of tha phoe          whelu the
deer ww ktll6d    would  atford    rrfUsnae a8 to it$ otrrncttor
ar herein deflaedr


          (1) The tslm “wild fanale drawn a8 umd in
     Art1010 910 of the ?aml Coda, moana rueb i0~1r
     deer at llbsrt~  to maa et will’, a8 dilrtin(ei8hed
     tror ona la aaptltlty or rlelbly Under oontrol of
     some person*
            (8) Ia a prw&mtlon,endsr    that article,  it
     would be ~leoe~m     to support d 4onviotitin that
     the Stats prove t%a3 the deer killad or shot at
     wa$ a nwild female deer”,    Suoh ‘proof, howqwr,
     may be rprde either bg direot eridsnoe or oiroea-
     stsntial   bvidenoa.




                               BY
                                     OOi6 Bprcr
                                    Aaaietant
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