                                   E,XAS



                                    January     24,   1963


Hon. Bill Hollowell                 Opinion No. C- 5
Chairman
Housetial    Investigating          Fler Whether, under the provls-
Committee                                ions of Article 893 of
Capitol Station                          Vernon's Penal Code,
Austin, Texas                            Justice Courts have juris-
                                         diction to try persons
                                         charged with violations
                                         of Texas Game and Fish
Dear Sir8                                Laws and related question.
          We have reoelved and carefully considered your
requeat for an opinion upon the following questions:
                 1. “Under Article  893 of the Penal Code
            and under the Constitution of Texas, the com-
            mittee would like to know If Justice Courts
            in Texas have juslsdlotion to try those charged
            with violation of Texas Fish and Game Laws,”

                 2. “Under Article   893 mentioned above is
            it mandatory that the court or jury decide
            whe%her to forfeit or restore  a license when a
            case is disposed of by them.”
            Section 1 of Article     893,     Vernon’s Penal Code,
provides:
                   “Any person charged in any court in
            this State with an offense of violating
            any law which it ia the duty of the Game
            and Fish Commissi~onto enforce shall have
            the right to have the court or jury before
            which said person is tried either   to for-
            %othe      license of said person so charged
                    restore said license to said person
            so charged for the remainder of the license
            period. me court shall so state in its
            judument whether or not the license of
            said Derson Is revoked or whether or not
            Bald nerson shall retain samet" (Bmphasls
            arlnari
            -----, 1
Hon. Bill Hollowell,   Page 2   (C-5   )


          In Ex Darte A J. Morris, 325 S.W.2d 386 (Tex.
Crlm. 1959) the Court held that the Justice Court was with-
out jurisdiction to try a person under a statute, making It
unlawful to enter the lnclosed land to hunt or fish, which
provided as the maximum punishment a fine of not more than
$200 and forfeiture of hunting license and right to hunt
for one year, because punishment u,nderthe statute was not
limited to a fine of $200.00.
          Article V. Section 19 of the Constitution of Texas,
reads as follows:
               "Justices of the Peace shall have
          jurisdiction in criminal matters of all
          cases where the penalty or fine to be
          ImDosed bv law mav not be more than for
          two hundred dollars . , . 11. (Emphasis
          added)
          Article 60 of Vernon's Code of Criminal Procedure
provides that Justices of the Peace shall have Jurisdiction
in criminal cases where "the fine to be imposed by law may not
exceed two hundred dollars." Under the wording of the
Constitution and statute, jurisdiction of the Justice of the
peace rests solely on the fine to be Imposed by law not
exceeding $200.00.
          It should be noted that in defining the jurisdiction
of corporation courts and concurrent jurisdiction of justices
of the Pease, Article 62, Vernon's Code of Criminal Procedure,
provides, s . . $n which Dunishment Is be fine only, and
where the maximum of such fine may not exceed two hundred
dollars. . .'
          In ,Bx varte ROY Howard, .34'7
                                       S.W.2d 721 (Tex. Crlm.
1961) held where the punishment for the violation of the
statute the defendant was charged with violating (Article 910
Vernon's Penal.Code) was by a fine of not less than $50.00
nor more than $200.00 and the forfeiture of hunting license,
that the justice court had no jurisdiction.
          The Court went on,to say:
               “Artble  5, Section 19 of the Texas
          Constitution, Vernon's Annotated Statutes,
          limits the criminal jurisdiction of the
          Justice Courts to offenses where the
          punishment which may be assessed is by
          a fine only, not to exceed $200.'
                                -lb
-




    Hon. Bill Hollowell,   Page 3   (C- 5   )


              In answer to your first question, It Is our opin-
    ion that the Justice Courts do not have jurisdiction to try
    those persons charged with violating any law which It is the
    duty of the Game and Fish Commission to enforce in those
    cases wherein Section 1 of Article 893, Vernon's Penal Code
    apply.
              'We now consider your second question. Prior to
    the 1953 amendment Article 893 read In part as follows:
                   "Any person convicted of violating any
              provision of the game laws of this state shall
              thereby automatlcallv forfeit his license for
              said season. . .r (Emphasis Added)
    The right to hunt was automatically forfeited by a violation
    of such laws and a conviction of the defendant under said law.
    The statute did not confer upon the court the authority to
    forfeit the defendant's right to hunt, and the inclusion of
    such provisions in the udgment was of no 'effect. Galloway
    v. State* 69 S.W.2d 89 Tex.Crlm. 1933).
              After the 1953 amendment, Section 1 of Article 893,
    Vef;;;is Penal Code, read as above statedon page 1 of this
              It is stated in 26 Tex. Jur. XI 533, Game and
    Game lak, Section  10 that:

                   "Formerly a conviction of violating any
              provision of the game laws automatically for-
              fekted   the license of the convicted person,
            " and he could not obtain another for a specl-
              fled period. Under the present law, however,
              any person charged with violating any law that
              It is the duty of the Game and Fish Commission
              to enforce has the rlzht to have a court or
              jury decision on the question of forfeiture and
              of restoration of license." (Emphasis added)
              Sections 4 and 5 of the Act amending Article 893
    reads in part as follows:
                  "Sec. 4. All laws, OP parts of laws,
             local, general or special, are hereby repealed
             to the extent that they ponfllct with any
             provision of this Act.
                  "Sec. 5. The fact that such licenses
             are now automatically forfeited on a vlola-
             tlon of any hunting and fishing law without
                                                               -   .




Hon. Bill Hollowell,   Page 4    (C-5   )



          allowing same to be at the discretion of the
          court, creates an emergency. . .II
          (Emphasis added) Acts 53rd Leg. R.S. 1953,
          Ch. 5, p.11.
          This further Illustrates that the Legislature
Intended to repeal the automatic forfeiture of licenses,
that existed prior to the 1953 amendment, and give the trial
courts the discretion of determining whether the license
should be forfeited.
          Construing the question of the forfeiture, the
Court In the case of Ex parte A. J. Morris, suora, said:
              "It,Is apparent that the amended Article
          893,V.A.P.C. . . . specifically provides that
         the forfeiture of the hunting license of the
         defendant is for the court or,,juryand e    be
         provided for in the judgment.   (Emphasis
         added)
          It Is therefore our opinion that when a person is
convicted In such cases in a court of competent jurisdiction
it is mandatory upon the court or jury to decide whether
to forfeit or restore his license and provide for same in
the judgment.

                       SUMMARY
              1. The Justice Courtis without juris-
         diction to try a person charged with the
         violation of any law which it is the duty of
         the Game and Fish Commission to enforce, in
         those cases wherein the provisions of Section
         1 of Article 893, Vernon's Penal Code are
         applicable.
              2. When a person is convicted In such cases
         In a court of competent jurisdiction it is
         mandatory upon the court or jury to decide
         whether to forfeit or restore his license and
         provide for same in the judgment.
                                Yours very truly,.

                                WAGGONER CARR
                                Attorney General of Texas
Hon. Bill Hollowell,   Pais 5   (C-5   1


                                By&/a
                                Gilbert J. Pe a
                                Assistant Attorney General
GJP:cjs
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Cha%rman
Norman Suarez
Bill Allen
Joseph Trlmble
John Reeves
REVIEWED FOR THJ3ATTORNEY GENERAL
By: Stanton Stone
APPROVED:
Waggoner Carr
