                                      October    2. 1975


The Honorable  Bennie Bock II                              Opinion No.   H-   705
Chairman,  Liquor Regulation Committee
House of Representatives                                   Re:   Whether alligators   may
P. 0. Box 2910, Capitol Station                                  be sold in Texas.
Austin, Texas

Dear Representative         Bock:

     As Chairman of the Liquor Regulation Committee,         you have requested
our opinion concerning whether a person who has raised alligators         for
twenty-five  years may lawfully sell them.       You have indicated that the
request is within the jurisdiction    of the Committee   and is asked on its
behalf.   You note that article 978j-3;    Penal Auxilary   Laws, which pro-
hibited the sale of alligators  after January 1. 1970, was repealed by
Senate Bill 179 of the 64th Legislature.      Acts 1975, 64th Leg.,   ch. 219.
p. 561.   However,   alligators  have  been  designated  by the Parks  and
Wildlife Department as an endangered species and are therefore protected
by sections 43.021,    et seq. and 68.001, & sx. ,Parks and Wildlife Code.
(All references   to sections are to the Parks and Wildlife Code unless
otherwise noted. )

    Section   68.015(a)      provides:

             No person may possess,     sell, distribute, or offer
        or advertise   for sale endangered fish or wildlife unless
        the fish or wildlife have been lawfully born and raised
        in captivity for commercial    purposes under the pro-
        visions of this chapter or federal law.

    Section   68.007      provides:

             No person may possess   endangered fish or wildlife
        for the purpose of propagating  them for sale unless he
        has first acquired a commercial    propagation permit
        issued by the department under this chapter.




                                          p.    3048
The Honorable     Bennie   Bock II, page 2          (H-705)




    Thus, as a general matter,  a person may sell only those alligators
which have been lawfully born and raised in captivity. Additionally,    a
person may not lawfully propagate an endangered species for commercial
purposes unless he obtains a commercial   propagation permit.

    However,     section   68.020   provides   in part:

        (a)    This chapter does not apply to:
               . . .
               (6) animals,    fish, or fowl that are privately owned
               or to the management      or taking of privately owned
               animals,  fish,    or fowl by the private owners.

     In our view this exemption is ambiguous.            We do not believe   that the
Legislature   intended to exempt all privately owned animals from the pro-
visions of chapter ~68 without regard to when they became privately owned.
Were section 68.020(a)(6)        construed so broadly,      once a person lawfully
obtains an animal of an endangered species under section 68.006                and the
animal thus becomes privately owned,            no permit would be necessary       for
commercial     propagation.      Such a construction     would renders the permit
provisions   of section 68.007      almost entirely    fruitless,  for a permit would
be required    for only the propagation      of publicly owned animals.       The courts
will not construe a statute so as to render it “fruitless,         futile, meaningless,
purposeless,     or useless,    if the language can be otherwise construed.”           53
Tex. Jur. Zd, Statutes,      $165 and authorities    cited therein.

     Accordingly,    in our opinion the Legislature       intended section 68.020(a)(6)
to constitute a grandfather      cl.ause which exempts only those animals which
were privately owned when that section original,ly took effect,           or August 27,
1973.    See, Acts 1973. 63rd Leg.,       ch. 126, pa 268, formerly      codified as
article 913a, Penal Auxilary ,Laws.          In addition, we believe the exemption
is personal and relates only to the owner at that time.           Prior to August 27,
1973, these exempted animals could have been sold, managed,                or taken by
their owner without a permit and without regard to whether they were born
and raised in captivity.       However,    these privately    owned animals may not
be utilized for commercial       propagation    subsequent to August 27, 1973,
without a commercial       propagation permit.       In addition, protected animals
taken from the wild after August 27, 1973. may not be sold.              Sec. 68. 015(a);
E.     sec.  43.021,   et seq.,   regarding   the legal  capture  of protected   animals:
see also sec. 61.021.




                                        p.   3049
.   -




        The Honorable   Bennie   Bock II, page 3        (H-705)




             In our opinion a person may lawfully sell alligators    which he privately
        owned prior to August 27, 1973.     Alligators   which were not privately owned
        prior to August 27, 1973. may not be sold unless they were born and raised
        pursuant to a commercial     propagation permit or under authority of federal
        law.    We do not consider the effect of federal legislation  prohibiting the
        interstate  sale of endangered species.     See, 16 U.S. C. § 1538; but see, pro-
        posed Dept. of Int. Reg. 40 Fed. Reg.,      no. 131, p. 28712 (1975).

                                 SUMMARY

                    A person may lawfully sell alligators  which he
                privately owned prior to August 27, 1973.    Alligators
                which were not privately owned prior to August 27,
                1973, may not be sold unless they were born and
                raised in captivity pursuant to a commercial    propagation
                permit or under authority of federal law.




                                                      Attorney    Gem ral of Texas
                                          //
        APPROVED:                         u




        DAVID   M.   KENDALL,     First   Assistant




        C. ROBERT HEATH.         Chairman
        Opinion Committee




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