             THE         A           MEY        GENE




The Honorable     Clayton T. Garrison                 Opinion   No.   H-   151
Executive   Director
Texas Parks and Wildlife     Department               Re:    Is the Texas Parks and
John H. Reagan Building                                      Wildlife   Commission
Austin,   Texas 78701                                        authorized   to adopt regu-
                                                             lations pursuant to the
                                                             Uniform    Wildlife  Regula-
                                                             tory Act (Article    978j-1,
                                                             V. T. P. C. ) or other sta-
                                                             tutes for the purpose of
                                                             enforcing   hunter safety
                                                             on small private    tracts
Dear   Mr.   Garrison:                                       of land?

         Your letter requesting     our opinion asks whether the Texas Parks and
Wildlife    Commission     is authorized   by any statute to adopt and enforce      regu-
lations providing     for hunter safety on small private       tracts of land.  As back-
ground you indicate      that, in recent years,      it has become fairly   common for
people to divide a large tract of land into numerous            small tracts which are
purchased     by individuals   for hunting deer or other game animals.         You state
that the Department       has received   several    complaints   and, as one individual
stated,    “Bullets  do not stop at property     lines. ”

       As your letter tacitly   recognizes,   the Parks and Wildlife  Department
may only exercise     su~ch powers as have been granted it by the Legislature.
Therefore    the answer   to your question  requires   an examination of the perti-
nent statutes.

       The Parks and Wildllife  Department,    under the “po,licy direction”       of a
Commission,    was created   in 1963 out of the Game and Fish Commission             and
the State Parks Board,    assuming  all the powers,   duties and authorities        of each.
Acts 1963, 58th Leg.,   ch. 58, p. 104; Article   978f-3a,  V. T.P. C.




                                     p.   704
The Honorable     Clayton     T.   Garrison,      page   2    (H-151)




       From time to time additional        responsibilities   have been added as,
for instance,   in 1965 when the Department        was given control and custody
over several    historic  State battlegrounds.       (Acts 1965, 59th Leg.,  ch. 225,
p. 441; Article    6071b, V, T. C. S.)    In 1971, it was given certain   powers over
the Texas State Railroad.       (Acts 197:1, 62nd Leg.,     ch. 311, p- 1249; Article
6069c, V.T.C.S.)

       None of these statutes,  however,    authorized   one of the predecessors
of the Department    or the Department   itself to regulate   the use of firearms.
The Penal Code, Title 9, Chapter 4 prohibits        the unlawful carrying    of arms,
but these provisions   do not apply “to the carrying    of arms on one’s own”
property.   Article  484, V. T. P. C., and see $46.03(2)      of the 1973 Penal
Code (Acts 1973, 63rd Leg.,     ch. 399. p, 883).

       Similarly,  there were many Articles         in the Penal Code regulating
huntina and designed    to protect   game.     Vernon’s    Texas Penal Code, Title
13, Chapter 6. Such regulationsas         there were with reference       to weapons
used in hunting were designed      to protect    the hunted,   not the hunter   or other
human beings.     See, for example,     Articles     879a-5,   87921-6, 90:1 and 902,
v. T.P. c.

        In 1971, the Legislature  adopted what is now Article   6067b, V. T. C. S.,
(Acts   1971, 62nd Leg.,    ch. 383, p. 1403). Section ,Lof the statute provides:

                       “The Parks and Wildlife            Commission        is hereby
              authorized      to promulgate         reasonable      rules and regulations
              governing     the health,        safety and protection         of persons    and
              property     within State parks,          historic     sites,   scientific   areas,
              or forts administered            by the Parks and Wildlife           Department,
              as may hereafter           be necessary.         Said rules and regulations
              may be promulgated             to govern the conservation,            preserva-
              tion and use of State property             whether natural features           or
              constructed       facilities;     the abusive,      disruptive     or destructive
              conduct of persons;           the activities     of park users including
              camping,      swimming,          boating,    fishing or other recreational
              activities;    the disposal        of garbage,      sewage or refuse; the
              possession       of pets or animals;          the regulation      of traffic  and




                                          p.   705
The Honorable     Clayton   T.   Garrison,    page’ 3     (H-151 1




              parking;  and the conduct of individuals which endangers
              the health or safety of park users or their property.
              (emphasis   added)

        As a prerequisite    to adopting a rule or regulation,     $2 of the statute
requires    notice and a hearing.     However,    this statute authorizes   rules and
regulations    applicab:te only to :lands within the custody and control      of the
Department      and Commission.      Cf. Attorney    General  Opinion   M-953    (1971).

        The 63rd Legislature    (Acts 1973, 63r.d Leg,,    ch. 474, p. 1281) has
authorized    the Commission    to prohibit the use of firearms    on state property
adjacent   to state parks ,located within one mile of coastal waters      of the state.

        The fact tl& the Legislature         on two recent occasions     has seen fit to
expressly    limit the powers      of the Texas Parks and Wild,life Department         and
Commission       to regulate   hunting and the use of firearms        to state owned prop-
erty,   coupled with the provisions        of the new Penal Code exempting        from the
regulation    of weapons,    firearms     used on one’s own property       compels   us to
conc:lude that it has not been the intention         of the Legislature    to extend to the
Department      or Commission       authority   to adopt regulations    to enforce hunter
safety on small private       tracts of land.
                                                       ?

      While the Uniform    Wildlife   Regulatory   Act (Article  978j-1, V. T.P. C.)
gives to the Commission     extensive   powers   to regu,late hunting so as to con-
serve wildlife,  it does not expressly    give the Commission      the power about
which you inquire.

                                       SUMMARY


             In the absence of expres,s legislativeauthority,      the Parks
         and Wildlife  Department   may’,not adopt regulations    f’or the I&-
         pose of enforc’ing  hunter safety on private-tracts   of land.




                                                   Attorney   General   of Texas




                                        p.   706
The Honorable   Clayton   T.   Garrison,    page 4   (H-151)




APPPOVED:




DAVID M. KENDALL,         Chairman
Opinion Committee




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