                                   OFFICE        OF

                    THE ATTORNEY                   GENERAL
                                 AUSTIN,      TEXAS

PRICE  DANIEL
ATTORNEYGENERAL                  March 22, 1948


          Hon. Clayton Bray             Opinion No. V-522.
          County Attorney
          Sutton county                 Re:   The constitutionality of
          Sonora, Texas                       Art. 923qa.,Seca. 6 & 7 i
                                              V.P.C. * relative to the
                                              forfeiture of a whole-
                                              sale fur buyer’s license
                                              upon oonviction of the
                                              offense of purchasing
                                    :         pelts from an unlicensed
                                              trapper or fur buyer.
          Dear Sir:
                       Yoltr request for an opinion reads, in part:
                       “I have received a complaint which
                  rather disconcerts nw. The complaint is
                  ;zzded under Artiola 92Jqa, 6 6~ 7, Penal
                      .
                        ATha pertinent .Artible~~~require
                                                        a
                  1icen.m ,--tobroadly -apeairing,
                                                 ,dealin for9 ;
                  -xnd,,providesfor fine as.well aa forfeit-
                  ure of lfoenee to engage in ‘euohbooupation
                  for one year from date of the oonviotion.
                                                     .
                       “The aouroe of my oonoe’rnla that the
                  forfeiture provieion le epplioeble ‘to e
                  Wholeeele Fur ,Buyer,who, himself, had hie
                  own license,.88 required by lew. Unfor tun-
                  ately the Wholesale Fur Buyer did not ea-
                  certain thet the Retail Fur Buyer; from whom
                  he bought, did not heve a lioense.
                       n . . .

                       “As I see the issue: when a parson
                  has complied with every requirement to qual-
                  ifp for a Wholesale Fur Buyer’s license, haa
                  peid the fee required for the ,lioense, has
                  had the sane issued to him, and is operating
                  thereunder; is it in oonformlty with our Con-
                  stitution that he have his lioense oanoellea
Hon. Clayton Bray, Page 2,   V-522.


     because of the dereliction of some other per-
     son?                                              \

          "Article 923qa, 7, ,providesonly for a
     reduced monetary punishment but makes cancel-
     lation of the license mandatory. Assuming
     that the license cancellation feature would
     be held to be only directory, should the duly
 .   licensed person have to subject himself to
     the whim and lottery of a pick-up J. P. jury?."
          The pertinent parts of Art. 923qa, V. P. C.,
with which we are concerned, read as follows:
          "section 1. For the purpose of this
     Act, the following words, tems, and phrases
     are hereby aefinea:

          "(a) 'Wholeaele FUr Buyer'. A Whole-
     sale Fur Buyer is any person who purchases'
     for himself or on behalf of another person,.
     the pelt or pelts of any of the fur-bearing
     animals of this State from a Retail Fur Buyer
     and/or from the Trapper.
          "(b) ..'RetailFur Buyer'. A retail Fur
     Buyer is any person who purchases the pelt or
     pelts of any of the fur-bearing animals of
     this State from the Trapper only.
          "(c) 'Resident Trapper; Nonresideht
     Trapper.' A'trapper'is any-pe'rsonwho takes
     for the purpose of barter or sale, and who
     sells or offers for sale, the pelt or pelts
     of any of the fur-bearing animals of~this
     State, and for the,purpose of-this Act, trap-
     pers aTe hereby divided into two (2) classes,
     namely 'resident' end 'nonresident': Resi-
     dent trappers are those who have, for a ~per-
     icd of twenty-four.(24) months previous to
     their application for license, been bona fide
     residents of this State. All others are non-
     resident trappers.
          "Section 2. Before any pzrson shall op;
     erate in this State as a Wholesale Fur Buyer,
     Retail Fur Buyer, or Trapper, he shall be re-
     quired to obtain and have in his possession
     a valid license entitling him to the privileges
Bon. Clayton Bray, Page 3,   .V-522.


     given in this.Aot and tu'no other p?Fvileges.
     Such license or licenses,shall .be ~obttiihed
                                                 from
     the Game .Fish and Oyster Comnission,~or.from
     one of their authorized agents.
          "(a) .A Whole~sa&e,FurBuyer's lic~ensemay
    be,purchased for the sum of Twenty-Five Dollars
    ($25) and shell entitle the holder to ,the priv-
    ilege of purchasing the pelts bf fix-bearing
    enimals in this State from 'IMppers, Retail Fur
    Buyers,.and 'Wholeaale'FurBuyers, an&the priv-
    ilege of handling such pelts for shipment and
    sale.
                                                     I
         "(b) A Retail Fur Buyer's license msy be
    purohased'for the sum of Five'.Dollars($5),aua
    shall,entitle the holder to the'privilege of
    purchasing the pelts,of fur-bearing animals~~fro&
    the Trapper:only and ~handlidg-same,for the pur-
    pose of shipment and sale. '.'.    ..,.~ .,,'
        ~.wi.c) A resident trag$er;s~liomse r&-be
    purohasea,for the:sum of One.Dollsr ($l), and a
    nonresident trapper's lscens~e‘may be'purchssed ~~.
    for the sum of Two'Huuared Dollars ($200), and
    the respective licenses shell entitle the holder
    to sell~only hi&own catoh of the,pelts of fur-
    bearing animala of this State, whioh he basslaw- I
    fully taken.
         YZection 4.: .When 'a$erson', firm, or oor-
    poration operates as a Wholesale FurBuyer or as
    a Retail Fur Buyer, a lioense shall be required
    for each place of business and be publilcly&s-
    played in said placesof ,buaihess at al
    and all such places of .business shall be sub:
    ject to inspection, without warrant,'by any game
    and fish warden at any time. If a person oper-
    ates as a Wholesale Fur Buyer; Retail Fur Buyer,
    or as a Trapper,'other than at an establishment
    for which a license has been issued, he shall
    have on his person, whenever 'cbnductingsuch
    operations, the license required of him as'a
    Wholesale Fur-Buyer, Retai,lFur Buyer, or Trap-
    per, and sny vehicle which he operates Shall be
    subject to inspection, without warrant, by any
    game and fish warden at all times that such vehi-
    cle is being used for the collection of the pelts
    of fur-bearing animls or.for.the purpose of trans-
    porting same.
                                                               -,


Hon. Clayton Bray, Page 4,   v-522.




                                                  r,
     Reiail Fur Buye;, or happer, as aefinea
     this Aot, without fir,stobtaining the license'
     required for the business engaged in.,
         nSeotion 7. Any person violating any
    urovision of this Act shall be deemed truiltv
    of a misdemeanor and upon cofiviction&all be
    fined in a sum not less than Twenty-five Dolt
    lars ($25) nor more than Two Hundred Dollars
    ,($200), and any D8rson convicted under any pro-
    vision of the Actshall automatically forfeit
    any'lioense which he may hold under any provis-
    ion of this Act and shall not be permitted to
    obtam any license provided for under this Act
    for a mrioa of one year from the date of his
    conviction." (Emphasis supplied) ~'
          At the.outset it must be clearly understood that
all wild fur-bearing animals of this State are the property
of the people of this State. Art. 923ti,V,P.C.;,20 Tex. Jur.
588. There being no question in your request about this
statute as applied to domesticated fur-bearing animals, no
opinion is expressed t~hereon.,See 24 Am. Jur. 391, Game and
Game Laws, Seoti6n 26.
          A dear-cut~expression of the power of the State
to regulete the taking and mrketing OS gae animals is
Sound in Commonwealth v.,Worth, 304 Mass. 313; '23N.E. (2d)
891, as follows:
         "In this,commonwealth (as it is~in Texas)
    the title to wild animals end game is in,the
    commonwealth in trust for the public, to be ae-
    voted to the common welfare. ~. . It follows
    that wild animals, .exoeptinsofar ss,the Legis-
    lature may determine, are not the subject of
    private ownership. Regulations by way ofper-
    mission of the right to hunt or take game, and
    restrictions as to the possession or disposal
    of game,after it has been reduced to possession
    deprive no person of his property, because one
Hon. Clayton Bray, Page 5,   v-522.


     who -takes or kills game had no previous right
    'Of property in it. - a' (Ptirenthetical~exDres-
                                                -
        n added)
     sio.
          See, also, H. D. Dodgen, Executive Secretary vs.
Vincent Depuglio, deoided by the Supreme Court of Texas
March 10, 1948.
          The question, then, that you raise is whether
it is a reasonable game regulation to require thatwhole-
sale fur buyers purchase pelts only from licensed fur buy-
ers or licensed trappers, ana to provide that any wholesale
fur buyer who is convicted of violating this provision shall,
in addition to the statutory penalty, forfeit his license
and shall not be permitted to obtain another license Sor a
year.
         ,We shall be concerned only with'the reasonable-
ness of the forfeiture provision with reference to the con-
stitutionality of the statute.
          Smce the-State'unquestionably can protect the
public's~rights in Wild ge@? timugh its poli~;~p~we;; ;t
can alsc.lioense the right to deal in pelts.
5. IS the State can license such activity, it -can'piviie
for the automatio'forfeiture or revocation of,such license
IS the end to be served is the prDtection'of the game re-
sources of our State, I$ requiring the purchase of pelts
only from licensed trappers or'buyers,~the Legislature was
concerned with the evil of trafficking in illicit or con-
traband pelts. Statutory provision has ~beenmade as to
the conditions under which such fur-bearing animals nay
be t&en and there could be no greater deterrent to the
illegal taking of fur-bearing game than a safeguard against
its ready marketability. Unquestionably a sound safeguard
is the statutory requirement that buyers be assured of the
authoritative sanction of those from whom pelts are pur-
chased. Doagen w Depuglio, supra.
          To facilitate the identification process, Art.
923qa, Sec. 4. V~.P.C..has specifically
                                     ;- reauired retail
and wholesale.Sur buyers to.display publiciy their licenses
in their Dlaces of business. or if thev a0 .hbt have a Dlace
of business, to,have,their iiceme on iheir Derson t*when-mm
ever conducting suoh.operationsw. Unquestiouably when a
retail fur buyer is selling pelts to a wholesale fur buyer
he is conducting the operations of his business in such a
fashion as would~require hti~to exhibit'his license or have
it on his person,, We do not believe it is unreasonable to
                                                              .
                                                                  ‘. .


Hon. Clayton Bray, Page 6,   V-522.


require the wholesale fur buyer to ascertain,whether
the person he is dealing with has a license; particu-
larly in view of the requirement of Publia display
or possession of the license by operators. The whole-
saler is not being penalized for the dereliction of
some other person; he is being penalized for his own
aereliotion, being the crime of purchasing pelts iron
an unauthorized trapper or buyer.
          In your able brief, you have raise& the ques-
tion of "guilty knowledgew in connection with the criru-
inal prosecution for the offense of dealing with an.ti-
licensed person; that is, whether it must be proved that
the wholesaler knew he was purchasing from an unlicensed
trapper or buyer.                                   =.

           It is unquestionably
                         .      true end hes long been
 established that some criminal offenses require intent
 as an element df the offense, while other,criminal of-
 Senses a0 not require an intent. The statute setting
 out the criminal offense is determinat~ivein each in-
 stance in ascertaining whether a ori@nal intent is an
 essential element bS that crime. Eughes v. .State,:67
 Tex. Crim. Rep. 333, 149 S. W. 173; Gray v. State, 77
 Tex. Crim. Rep. 221, 178 S. W. 337; Hargr0ve.v. United
,states, 67 F (2d) 820; 12 Tex. aur. 262.
          An offense prdsecutea udder Art. 923qa? V.P.C.,
is a criminal offense that does not require crimmalin-
tent as an essential element of the offense. We do think,
however, that the facts you have presented raise a pos-
sible defense on the part of the wholesaler of mistake
of feet, available under Art. 41,,V.P.C., as.Sollows:
          "If a person laboring under e mistake
     as to a particular fact shall do,an act
     which would otherwise be criminal he is
     guilty of no offense but the mistake of
     fact which would excuse must be such that
     the person .soacting under a mistake would
     have been excusable had his conjecture as
     to the fact been correct, land it must also
     be such mistake 8s does not arise from a
     want of proper care on the pa t     the per-
     son so acting". (Emphasis aaieayf
          We are, of course, unable to say whether the
wholesaler in your particular case exercised proper care
to ascertain the facts.. As to what would. amount to proper
care, this is a fact question to be determined in the light
Hon.   Clayton aray, Page 7,   V-522.


of all the circutnstanoessurrounding each individual case.
          In connection with your inquiry, we wish also
to point out that the forfeiture provision is not direct-
=,   but is mandatory, as you have observed. The license
is autonisticallxsuspended by reason of such conviction
without any further aotion or judgment by the court being
            See Galloway v. State, 125 Tex. Cr. R. 524;
Z~c?Z?yi2a)   89 holding that automatic forfeiture of
huntinq licenses'upon conviction of violating any provis-
ion of the game laws, as provided in Article 893, V.P.C.,
is constitutional.


            Art. 92&a, Sets. 6 & 7, V. P. C., where-
       in provision is meae for the forfeiture of a
       wholesale fur buyer's license upon conviction
       of purchasing pelts.from an unlicensed trapper
       or fur buyer, is constitutional.
                             Very truly yours,
                        ATTORNEY GENERAL OF !tEXAS


                        BY




                         APPROVED:      .




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