                             EXE   A         OEENEY       GENERAL
                                               TEXAS
                                   AUSTIN.      %XAS      787
CRAWPORD       C.   MARTIN
  AlTORNRY     GENERAL
                                             December 22, 1969


           Honorable James Allen Payne
           County Attorney
           Sabine County
           Hemphill, Texas 75948
                                                 Opinion No. M-543
                                                 RE:   Interpretation of
                                                       House Bill 1437.
                                                       61st Legislature,
           Dear Mr. Payne:                             R.S. 1969
                You have requested an opinion of this office inter-
           preting the meaning of House Bill 1437.,61st Legislature,
           R.S. 1969, ah. 640, p, 1421, codified as Article 9783,
           Vernon's Penal Code, which reads,~in part, as follows:
                   "Section 1. No person may use any horn,
                recording, or other device to call or attract
                wild fox in Shelby, Nacogdoches, Sabine, San
                Augustine, Falls, or Leon Counties."
                   "Section 2. A person who violates any
                provision of this Act is guilty of a mis-
                demeanor and upon conviction is punishable
                by a fine of not less than $25. nor more
                than $200."
                We quote from your request:
                   "A question has arisen in our County per-
                taining to the above captioned bill. Is a
                person who is found with a horn, recording,
                or other device, which device will call or
                attract wild fox in violation of this law
                even though it is not his intent to be
                hunting fox? This person was using the
                recording device to attract wild cats and
                wolves.




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Honorable James Allen Payne, page 2, (M-543)


    "It appears to me that this statute is vague
    and would depend on the intent of the person
    using the recording or other devices. If he
    was calling wolves and bobcats and a wild fox
    was attracted to the call and he did not harm
    the fox in any way, would this be a violation
    of this statute? Of course, the statute does
    not say 'to call or attract wild fox for the
    purpose of killing or capturinq the same.’
    "I have had numerous requests from citizens of
    this County as to just what this statute covers.
    In my opinion, it does not prohibit one from
    using a horn, recording, or other device to
    attract predators other than wild fox. However,
    it would seem that if a wild fox was attracted
    to a call even though the caller was hunting
    predators other than wild fox, then it might
    be construed to be a violation of this act.
    Also, it would appear that the burden of proving
    that one was using devices for calling wild fox
    would be on the State unless the person was
    actually apprehended in the act of attracting
    a wild fox."
     In 53 Tex.Jur.Zd 239, Statutes, Section 163, the follow-
ing appears (with ample authority cited in various footnotes):
       "So where the statutory language is ambiguous,
    or admits of more than one meaning, it is to be
    taken in such a sense as will conform to the
    scope and intent of the act, and will best or
    most certainly accomplish its purpose, without
    doinq violence to plain statutory language.
    Thus, where a statute is designed to afford a
    remedy for existing evils, it should be given
    such signification as will afford a reasonable
    remedy. Contrariwise, a construction that is
    repugnant to the object of the law or that will
    defeat, thwart, or unduly limit itg plain pur-
    pose, will be avoided if possible."
     In order to ascertainthe intent of the Legislature in
the passage of this Act, we may also look to the caption Of




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Honorable James‘Allen,Payne-,'page 3,   (M-543)




the bill, which states as follows:
        "An Act prohibiting the use of devices for
     calling wild fox in certain counties; providing
     a penalty: and declaring an emergency';"
It thus appears from the caption that all that has been pro-
hibited by the Legislature is the use of devices for the pur-
pose of calling or attracting wild fox. This being a penal
statute calling for a strict construction (53 Tex.Jr.2d
304-307, Statutes, Sec. 198; 16 Tex.Jur.Zd 137, Criminal
Law, Sec. 32) it necessarily follows that the use of devices
for calling other wild game is not prohibited.
     Since the burden of proof is always 'upon the State in
a criminal action, it will be necessary'to prove that any
person found using the calling device had the intent to
call wild fox. Proof of such intent may be difficult
but it follows the general rule in all criminal cases where
specific intent is a part of the offense. However, your
attention is directed to Article 45 of Vernon's Penal Code
which states:
        "The intention to commit an offense is
     presumed whenever the means used is such
     as would ordinarily result in the commis-
     sion of the forbidden act."
     It is also noted that the statute in question does
not mention possession of a calling device and therefore
such possession would not be an offense.
                      SUMMARY
        The use of a horn, recording or other
     device in the named counties is only in
     violation of House Bill 1437, 61st Leg.,
     R.S. 1969, when such use is for the
     purpose of calling or attracting wild fox.
                                 19




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Honorable James Al&en Payne, page 4, (M-543)



Prepared by Howard M. Pender
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
Bob Lattimore
Tom Bullington
Lonny Zwiener
Wqrdlow Lane
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant Attorney General




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