                                         The Attorney          General of Texas
                                                           July 9, 1982
MARK WHITE
Attorney General

                                        Mr. Charles D. Travis                  opinion No. MW-492
Supreme      Court Building
                                        Executive Director
P. 0. Box 12546
Austin.    TX. 76711. 2546              Texas Parks and Wildlife Department    Re:    Disposition of    fines
5121475-2501                            4200 Smith School Road                 collected pursuant to sections
Telex    9101674.1367                   Austin, Texas   70744                  26.212 and 26.213 of the Texas
Telecopier     512/475-0266                                                    Water Code

1607 Main St., Suite 1400
                                        Dear Mr. Travis:
Dallas, TX. 75201-4709
2141742-6944                                 On behalf of the Texas Parks and Wildlife Commission you ask
                                        about the proper disposition of fine monies collected pursuant to
                                        section 26, subchapter F of the Texas Water Code when the arresting
4624 Alberta       Ave., Suite    160
El Paso, TX.       799052793            officer is a game warden.
9151533.3464
                                             Section 26, subchapter F of the Water Code deals with the
                                        criminal prosecution of violators under the Water Quality Control Act.
1220 Dallas Ave.. Suite          202
Houston.     TX. 77002.6966
                                        The policy of the act and its purpose are stated in section 26.003.
7131650-0666                            Among other things, the policy and purpose are:

                                                 to maintain the quality of water in the state
606 Broadway.        Suite 312                   consistent with the public health and enjoyment
Lubbock,     TX.    79401.3479
6061747.5236
                                                 [and1   the   propagation  and   protection   of
                                                 terrestrial and    aquatic  life....   (Emphasis
                                                 added).
4309 N. Tenth. Suite 6
McAllen,     TX. 76501-1665                  Section 12.107 of the Texas Parks and Wildlife Code reads:
5121662.4547

                                                      (a) A justice of the peace, clerk of any
200 Main Plaza. Suite 400                        court, or any other officer of the state who
San Antonio,  TX. 762052797                      receives a fine imposed by a court for a violation
5121225-4191                                     of any law relating to the protection and
                                                 conservation of wild birds, wild fowl, wild
An Equal       Opportunityl                      animals, fish, oysters, and other wildlife shall
Affirmative      Action     Employer             send the fine to the department within 10 days
                                                 after the date of collection.         A statement
                                                 containing the docket number of the case, the name
                                                 of the person fined, and the section of the law
                                                 violated must accompany the remission of the fine.

                                                      (b) The amount of the fine to be remitted to
                                                 the department is 80 percent in county court cases
                                                 and 05 percent in justice court cases.




                                                                 p. 1751
Mr. Charles D. Travis - Page 2   (Mw-492)




               (c) The fees set out in Articles [lo07 and
          1008, Code of Criminal Procedure] shall be
          deducted from fines imposed for violations of laws
          relating to wild game, birds, fish, oysters, and
          other wildlife. (Emphasis added).

     In our opinion, sections 26.212 and 26.213 of the Texas Water
Code are laws "relating to" the protection and conservation of
wildlife within the meaning of section 12.107 of, the Parks and
Wildlife Code. They provide, respectively, that no person may cause
or permit waste discharges that cause water pollution except as
expressly permitted, and that each violation is punishable by a fine
of from ten dollars to one thousand dollars. For purposes of the
subchapter, authorized agents and employees of the Parks and Wildlife
Department are made peace officers empowered to enforce subchapter
provisions. Water Code §26.215.

     It follows that fines collected from violators under section 26,
subchapter F of the Water Code, except as hereafter noted, are to be
disposed of as directed by section 12.107 of the Parks and Wildlife
Code, regardless of whom the arresting officer may be. Cf. Attorney
General Opinion O-5679 (1943) (interpreting former statute later
amended). See former article 912, V.A.P.C. (1925). Articles 1007 and
1008 of the Code of Criminal Procedure referred to in section 12.107
of the Parks and Wildlife Code entitle the district or county attorney
to ten percent of the amount collected, the clerk of the court to five
percent, and the collecting officer (except a justice of the peace or
his clerk) five percent. See Attorney General Opinion V-1022 (1950).
Cf. Attorney General Opinio~H-1124   (1978); O-5679 (1943).

     The exception concerns fines collected from corporate defendants.
Section 26.223 of the Water Code provides:

         If a private corporation is found guilty of a
         violation of this subchapter and a fine imposed,
         the fine shall be entered and docketed by the
         clerk of the court as a judgment against the
         corporation, end the fine shall be of the same
         force and effect and be enforced against the
         corporation in the same manner as if the judgment
         were recovered in a civil action.

Cf. American Plant Food Corporation v. State, 587 S.W.Zd 679 (Tex.
Crim. App. 1979).

     Civil penalties under the Water Quality Control Act, as opposed
to fines, are controlled by section 26, subchapter D of the Water Code
rather than section 26, subchapter F. Section 26.126 regulates their
disposition. It reads:




                             p. 1752
.   -


        Mr. Charles D. Travis - Page 3    (MW-492)




                  (4    All civil penalties recovered in suits
                        instituted by the State of Texas under this
                        chapter through the department of the Parks
                        and Wildlife Department shall be paid to the
                        General Revenue Fund of the State of Texas.

                  (b)   All civil penalties recovered in suits
                        instituted by     a   local   government   or
                        governments under this chapter shall be
                        equally divided between the State of Texas
                        and the local government or governments first
                        instituting the suit, with 50 percent of the
                        recovery to be paid to the General Revenue
                        Fund of the State of Texas and the other 50
                        percent paid equally to the local government
                        or governments first instituting the suit.

             Thus, section 12.107 of the Parks and Wildlife Code will not
        govern the disposition of fines collected from corporate defendants
        under section 26, subchapter F of the Water Code, and articles 1007
        and 1008 of the Code of Criminal Procedure will have no application
        thereto, because such collections are to be considered civil penalties
        rather than criminal fines. See State v. Hart, 70 S.W. 947 (Tex.
        1902); Attorney General OpinionM-560 (1970). Again, the identity of
        the arresting officer is not critical because it is not the
        affiliation of the arresting officer that determines the disposition
        of civil penalties collected, rather it is the identity of the
        governmental body instituting suit that is important. Cf. Attorney
        General Opinion O-5679 (1943). See generally 12 Tex. Jur. III
        Conservation and Pollution Laws 5111 et seq., at 437,

                                     SUMMARY

                    The disposition of fine monies collected
                 pursuant to section 26, subchapter F of the Texas
                 Water Code is controlled by section 12.107 of the
                 Parks and Wildlife Code, except fines collected
                 from corporate defendants, which are to be
                 disposed of in accordance with Water Code section
                 26.126 as though they were civil penalties
                 recovered under section 26, subchapter D thereof.
                 Whether the arresting officer is a game warden
                 makes no difference.




                                               MARK      WHITE
                                               Attorney General of Texas




                                         p. 1753
Mr. Charles D. Travis - Page 4     (m-492)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood




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