        TEZEATTORNEYGENEEAL
                   QFTEXAS




Hon. H. D. Dodgen            OPINION No. c-36
Executive Secretary
Game and Fish Commission     Re: Whether, in hunting and
Austin, Texas                    fishing ,violationsunder
                                 ,circumstanceswhich do not
                                 require-thepossession of a
                                 license, charges must be
                                 filed in courts other than
Dear Mr. Dodgen:                 the justice courts.
    You have requested our opinion on the following question:
     "In hunting or fishing violations-undercircumstanceswhich
do not require possession of a license, must charges be filed
in other than justice courts?"
    Section 1, of Article 893, Vernon's Penal Code, provides:
           "Any
              r person charged in any court in this
         State with an offense of,violatingany law
         which it is the,duty of the Game and Fish
         Commission to eaforc,eshallhave the right
         to have the court or jury before which said
         person is tried either to forfeit the license
         of said person~so charged or to restore,said
         license to said person so charged for the
         remainder of the license period. The court
         shall so state in its judgment whether or not
         the license of,said person is revoked or
         whetheror not said person shall retain same."
     It is clear from the above quoted provision that a
license is subject to be forfeited by the court whenever a
person is charged with a violation of "any law which it is the
duty of the Game and Fish Commissionto enforce'!,if the person
so charged possesses a license, irrespectiveof,whether the
hunting or ,fishingviolationswere undercircumstances which
do not require possession of a license. It is elementarythat
the court cannot forfeit a non-existantlicense.
                                                              -    -




Hon. H. D. Dodgen, Page 2 (OpinionNo. C-36)


     It has long been establishedthat even though the per-~
missible fine does not exceed Two Hundred ($200.00)Dollars,
jurisdictionof the justice of the peace would not exist where
an alternativeor cumulative form of penalty,couldbe imposed.
     In Tuttle v. State, 1 Tex. App. 364, Judge White said:
           "Imprisonmentin the county jail cannot
         be estimated in dollars, nor c,anit be
         considered in any manner .apecuniary fine:
         It follows, therefore, .,. . that whenever,
         in misdemeanors,imprisonmentmay be assessed
         ,as an alternative,orpart of the'fine to
         be imposed, justice courts have no
         jurisdiction . . .'I
     It is well establishedthat a justice court does not
have jurisdictionwhere the nunishmentmav include a.forfeiture
of hu&ing or~fishinglicens;, Ex Parte A: J.~Morris,~,325  S.W.2d
386 (Tex.Crim.19591, and Ex Parte Roy,Hotiard, 347 S.W.2d 721
(Tex.Cri.m.,1961).
     Attorney General's Opinion C-5, (19651, a copy of which
is enclosed, held that the justice courts,@o not have juris-
diction to try those persons charged with violations,wherein
Section 1, of ,Article893, Texas Penal Code, applies, because
that section makes forfeiture of the license an additional per-
missible punishment to be included in the judgment.
     You are therefore advised that in every case of a viola-
tion of 'Ianylaw" which it is the duty of the Game and Fish
Commissionto enforce;if the person charged possesses a hunt-
ing or fishing license, same may be forfeited. In such-cases
the justice courts do not have jurisdictionto try same, but
the county court would have jurisdiction. If the person so
charged does not possess a hunting or fishing licZ?nse,the
justice courts have jurisdictionto try same in ail cases where
the punishment is by,fine not exceeding Two Hundred ($200.00)
Dollars.
                           SUMMARY
           In every case of a violation of "any
         law" which it is the duty of the Game and
         Fish Commissionto enforce, if the person
         charged possesses a hunting or fishing
         license, same may be forfeited. In such
         cases the justice courts do not have juris-

                            -P52-
Hon, H. D. Dodgen, Page 3 (OpinionNo. C-36)


         diction to try same, but the county court
         would have
               . . jurisdiction. If the person so
         cnarged does not possess a bunting or fish-
         ing license, the justice courts
                                  -      have juris-
                                                 .
         diction to try same in all cases where the
         punishment provided is b fine not exceed-
         ing Two Hundred ($200.007 Dollars.
                              Yours very truly,


                               WAGGONER CARR
                               Attorney General of Texas



                                *Gilbert J. Pena
                                 Assistant Attorney General
GJP:hd
APPROVED:
OPINION COMMITTEE:
W. V. GeDDert. Chairman
Murray Jordan-
Scott Garrison
Samuel Strong Pharr
Malcolm Quick
REVIEWED FOR THE ATTORNEY GENERAL
By: Stanton Stone
APPROVED:
Waggoner Carr




                             -153-
