     OFFICE OF THE ATTORNEY         GENERAL OF TEXAS
                           AUSTIN




Hon. Joab Campbell
County Attorney, SohleloherOounty
Eldorado, Taxae
                                                    /\
Dear Sir:
             Opinion Eo. O-1538       A\
             RiB: It3 it neceeesry la
                 ooaTlotioa     under sea.
                 &&&$~~


       This till aoknowl       43 eooi   t   0    your   inquiry   a0
stated above.
                           0
       Wequote                                   the Aot under ~mm-
sldaratlonr




       It ie our opinion that thilrlrtatutaia neverable.
The firat portion thereof prohibits the hunting or shoot-
ing of migratory bird8 or @me birde with *a ahotguu
larger than teqT(qaageand that IB oapable or holding mere
than three shc?$s at one leading", etc. She next~alaued,
Ron. Joab Caepbsll, page Z

*and providing that li a magmslae-loadinggun is used
and the magazine of suoh guo uould otherwisehold more
than two (2) shells, berore suoh gus is used it shall
be permanentlyplugged', eto., provides another dls-
tInct ntstutory prohibition.
        In other rords, It is mede unlawful 'to hunt
or shoot mourning doves,  *bite-wingeddoves, or sny ri-
gratory bird, or any other game blrd o? this State tithe
a si:otgunlarger than ten-gauge and that is oapable of
holding more than three (3) shells at on8 loading, In-
eluding the ahell that may be held In the ohamber of
suoh gun- whether said gun la a mngaslne-loadluggun or
not. It 18 rurther mdo unlawful to use an Qsgaslne-
loading* gun which has not been properly-I?
                                         p wed   in
oomFlIancewith the statute.
        It is also our opinion that it would bs neoss-
Bary to allege snd prove use of a ps or shotgus larger
than ten-gauge for suocesatulproseeutlonOS say offend-
er not using a -asine-loading*    gun but mah allega-
tion and proof would not be esaentlal If saoh a Wagaalae-
loading* gun be used.
          In examlnlng the entire Aot of whlob Seotlon 4
-of Art1018 WQa-4.18 a part (B.B. 51, oh. 19, p. 1889,
 Aots  45th Leg., Bd C.S.) we find reference In the amer-
 genoy clause; asme being 3eo. 9 of the bill, to tbs
 Federal regulationsand the Inteut of the Legls~ture
 to avoid oonfliot tberewlth 18 apparent.
        We point out that Regulation 3 of the United
states DeparvAentof the Interior mrcau of BlologIoal
Surrey reads a8 followa:
        WRegulations3.- Keotisby v&job migratory
   game birds   may be teken.

          *The raigratorygame birds on whioh opas Bea-
   soas are speolfied in Regulation 4 ,ofthese reguu-
   lations may be taken during suoh reBpeotI+BOpSn
   seasons with bow and error or with a shotgua not
   larger   than No. 10 gauge fired from the shoulder,
   exoept as permitted by regulations9,8,9 and 10
   oi these regulations,but ther shal.1not be tsksn
Hon. Joab CmpSeI.1, pane S

    with or by means of any automatlo-loadingor
    bend-operatedrepeetln6shotgun capable of hold-
    ing more than three BbellB, the magazine of
    whloh has not been out oft or plug@ with a
    one-piecemetal or wooden rlller lnoapableof
    removal through the loading end 'thereor,so as
    to reduce tho capsoityof eaid gun to not more
    than three shells at one time in the magazine
    and ohamber oomblned:l t + *
                                             4nBwarB
        Trusting that the above'satisfaotorily
your ln~ulry, we are
                                YOUrB   very   truly
