             .




                           F     EXAS




Honorable John W. Berry                 Opinion No. M- 770
County   Attorney
Karnes County                           Re:   Right to possession
Karnes Citv. Texas     78118                  of a deer killed UD-
                                              on land of another-
                                              without his consent.

Dear Mr. Berry :

     YOU   have requested our opinion on the following matter:

     "X , a trespasser, kills a deer on A's land without
     A's consent. However, X kills the deer within legal
     hours, has a hunting license, tags the deer with his
     own tag, all other details concerning the hunt are
     within the law, except the fact that X has no per-
     mission to hunt on A'S land. X pays a fine for tres-
     passing, but claims that he is entitled to keep the
     deer. A, the landowner, claims the deer belongs to
     him since it was killed on his property.   2, the
     game warden, contends that the deer belongs to the
     State (to be given to a charitable organization).
     TO WHOM DOES THE DEER BELONG, X, A, OR 21"

you further advise us that this is not a hypothetical question
in that you have been confronted with this question several
times, and that your designation of parties is to protect the
identities of persons concerned.

     "The ownership of wild game, so far as it is capable of
ownership, is in the State for the benefit of all its people
in common, and it is within the police power of the State
Legislature, subject to constitutional restrictions to make
such general or special laws as may be reasonably necessary for
the protection of public rights in such game, and within such
power is the right to regulate the method of taking or hunting
game in the state." Dobie v. State, 48 S.W.2d 289 (Tex. Crim.,
1932).




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Honorable John W. Berry, Page 2         (M-770)



     Ownership of all such animals is declared by statute to
be in the State of Texas, as follows:

     "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." Article
     871a, Vernon's Penal Code.

     You state that it is the contention of the game warden that
the deer in question belongs to the State and that it should be
given to a charitable organization.  The statutes provide cer-
tain methods,,means and conditions under which wild game may be
taken and the State thereby divested of its ownership therein.
The statutes also provide for the disposition of game taken in
violation thereof. Therefore, to determine the person entitled
to the possession of the deer in question we must look to such
statutes to see if the disposition thereof is specifically pro-
vided for.

     Article 897, Vernon's Penal Code, provides, in part as
follows:

     "All wild birds, wild fowl, or   wild game animals or
     parts thereof, which have been   killed, taken in any
     way, shipped, held in storage,   or found in a public
     eating place, contrar            rovisions of this


    widows and orphans."   (Emphasis-added).         -

     The reference to "this chapter" is to Chapter 6 of Title 13
of the Penal Code of the State of Texas, 1925. Such chapter
covers Articles 871 through 978n-2 of Vernon's Penal Code.

      Karnes County is under the "Vniform Wildlife Regulatory
Act".   (Article 978j-1, Sec. 1, Vernon's Penal Code). Section
2 of this Act specifically provides, in part, as follows:

      . . . it shall be unlawful for any person to hunt,
     take, kill or possess or attempt to hunt, take or
     kill any game bird or game animal in any county or
     in any portion of any county at any time, . . D un-
     less the owner of the land or the water, or his
     duly authorized agent shall give consent thereto."




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Honorable John W. Berry, Page 3            (M-770)



     Your stated facts show that the owner of the land had not
given his consent to the killing of this deer on his property;
therefore, the killing of the deer was in violation of Article
9783-l. The deer having been killed in violation of Article
978j-1 was, therefore, killed contrary to the provisions of
"this chapter," as referred to in Article 897 and should be
disposed of in accordance with the provisions of said Article
897, to wit, '1. . . by donating same to charitable institutions,
hospitals, or needy widows and orphans."

                           SUMMARY

          Deer killed on land of another without consent
     of landowner or his agent in a county under Uniform
     Wildlife Regulatory Act should be released to game
     warden for charitable purposes in accordance with
     provisions of Article 897, VeAnon's Penal Code.

                                         tfully submitted,




Prepared by Harold G. Kennedy
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Roger Tyler
Roland Allen
Malcom Quick
Jack Sparks

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOIA WHITE
First Assistant

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