                                              H-Z;?
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      Honorable J. G. Lyles       Opinion No. V-22
      Caunty Attorney
      Robertson County            ae: Authority of a deputy
      Franklin, Texas                 game and fish warden
                                      to enter uponinclossd
                                      land *here wild game
                                      is known to ran e or
                                      stray for any o% the
                                      purposes enumerated in
                                      Article 919, Penal
                                      Code, without a search
                                      warrant and over the
                                      protest of the owner
                                      thereof.
      Dear Sir:
                This is in reply to your letter dated No-
      vember 22, 1946, wherein you request the opinion of
      this departmentrelative to the following question,
      and we quote:
               “A, the owner and lessor of inclosed
          lands, has leased his lands to other par-
          ties for huntin purposes, and has complied
          with Article 902 Penal Code. A refuees
          permission to G&e Warden to search his
          leased premises.
               “Question: Does Game Warden have le-
          gal authority to enter AIs premlusr Over
          his protest without having obtained a le-
          gal search warrant?”
                  Article’I,Section 9, Texae Constitution,
      provides:
               “The people shall be secure~in their
          persons,,houses, papws and possessfans,
          from all unreasonableseisures or searches,
          and no warrant to search any place, or to
          soiae any pereon or thing,~shall issut
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Hon. ~J.G, Lyles - Page 2


     witnout describingthem as near as ma;{be,
     nor witnout probable cause supported by
     oatn or affirmation."
          The Fourth Amendment to the Canatitvtionof
the United States reads as follows:
          "The right of tne    La tc he ,se-
    :;;:,t: t&gF$&a             :,,$gg;     z;;
    seiw&,    shall not b6 vie&wed,, but nc
    warrants shall is6ue, but up4n r&able
    came, supportedby qath or aff!.rmation,
    and particularlydescribing; the piace to
    be searched, and the persons or things to
    be seized."
          Articles 871, 871a, 905, 906, 914 919
Penal Code of 1925, Sections 3~aad 6 of Article 478f,
Vernon's Annotated Penal Code, and Article 4026, Re-
vised Statutes, read respectively,in whole or in
part as follows:
         "Article (371. 'CoauPissioner'.The
    word 'commissioner'wherever used in this
    chapter, shall be held to mean the Game,
    Fish and Oyster Commissionerof the State
    of T6ras.w
         "Article 871a. Wild bird6 and ani-
    mals* All wild an$lnaLs. w5.l.d
                                  birds and
    wild fowl uithin t&e ,%+$$a@&&f ahi. $ulate
    are herakay deo&+ed &Q Ihya
                              #k4 pp+srty ef
    the peeglr af t5hSeYtwe!."
         "Art;icle99g.   4%3pMwa**r   to mn-
    force game law, The.&?a~, F‘Mh aml Dys!tier
    Commissienerand hia deputies skakl have
    the same power and aut@rSty a6 I#h6rffls
    to serve criminal proeeiq,rsin connection
    with ~6~6~6@owing out .arfBe YPllaQdons
    of this chapter, shall have the s'amep4w-
    er as shariff6 ts requj;re6i6 rLnrxecut-
    ing suoh process, and shal.1he emtltlad to
    receive the same fe6s as are pL*avldedby
    law for sheriffs in mlsdeatesnarcases.
          "Said Commissioner'orany of his
     deputies may ameat w!itheuCa warrant,any
Hon. J. G. Lyles - Page 3


     person found by them in the,act of violat-
     ing any of the laws for the protectionand
     propagationof game, wild birds or fish,
     and take such person forthwith before a
     magistrate having jurisdiction. Such ar-
     rests may be made on Sunday, and in which
     case the person arrested shall be taken
     before a magistrate having jurisdiction,
     and proceeded against as soon as may be,
     on a week day following the arrest."
           "Article 906, Deputy Commissioners
     to enforce law. It is hereby made a spe-
     cial duty of the Game, Fish and Oyster
     Commissionerto enforce the statutes of
     this-State for the proteotion'and preserve-
     tion of wild game and wild birds; and to
     bring;,or cause to be brought, actions and
     proceedingsin the name of the State of
     Texas, to recover any Lnd all fines and
     penalties provided for in the laws now in
    nforce, or which may hereafter be enacted,
    'relating tdwild game and wild birds., Said
     Game, Fish ,andOyster Cemmirsionermay make
     complaint and cause proceedingsto be cem-
     menced against any person~forviolating any
     of the'lairsfor the protectionand propaga:
     tion of gama~or birda without the sanctien
     of the County attorney of thb county in
     which such proceedingsare comnenced;and
     in such casoa he shall not be required-to
     furnish security for costs@*
           %rticle 914. Special.deputygame
     Commissioners. It shall.be the duty of
     the ~Gama,3iah and Gyster Commissionerto
     appoint special deputy game commisSWn~s,
     who shall be ox officio deputy game:,fieh
     and oystrr commiaeionersto *n$orae Con*
     servation laws in the various districts oft
     the State ,withall the powers of the lat-
     ter to enhorce the game fish and.oyster
     1anS of this State, 9:*'en
          wArticle~919~'-Powerof commi,ssianets
     to enter 'onlsmids. The Game, Fisk atid
     Oge+~ Cop1s;sssiia&apu hLf4&p3iy2~s,shall
     at all~timee have.the powertd eWer upon
     any wda   or waterwhere wild gaW"or fish
Hon. J. G. Lyles - Page 4


    are known to range or stray for the purpose
    of enforcing the game, and fish laws of
    thi8 State, and for the purpose of asking
    scientific invest1 ations or for research
    work as to such WI d eme or fish, and no
                      %a8 11 be sustained
    action in any court
    against the commissioneror any of his
    deputies to prevent their entrance upon
    lands or waters when .actingintheir of-
    ficial capacity as herein set f0rth.e
         'Article 978f. Game, Fish, and Oys-
    ter CollPiseion;powers and duties& Sec. 1.
    The offiae of Game, Fish and Oyster Com-
    missioner of the State ef Texas is hereby
    abeli8hed. There is hereb created the
    Geme Fish and Oyster Cm Ission which
    ahall bare the authority, powers, d&tee
    and fuastione heretoforevested 1n the
    Game, Fish md Oyrter Ce-lieaiener,ex-
    cept where in conflictwith We    AetP
         *Seation 6* Said Game, Fish and
    Oyster Cemmissionshall have power and
    authority to appoint ansxeuutive eee-
    retary who ahall act as the chief execu-
    tlve officer under the direation of said
    Game, Fish and Oyster Commission. The
    Commissionmay perform its duties through
    said executive secretary and may dele ate
    to him suah executive dutiee as said Le,
    Fish aad Oyster Commissionshall deem
    proper. They shall also have power and
    authority to appoint an assistant execu-
    tive searetarywho, in the absence of the
    exeoutivesecretary, shall perform aa
    the Butlea of the executive secretary and
    shall perform such other dutiee as may be
    preecribedby the Game, Fish and Gyster
    Cos~iesiemor under its &#uotion.     Said
    executive eeoretary shall have authority
    to appoint suah head6 of divisions and
    such Game and Fieh wardens and other em-
    ployees as in his diaaretienmay be deemed
    neaeesary to carry out and enforce the
    lava of this State, which it is the duty
    of eaid Game, Fish and Oyster Commission
    to carry out exeaute and administer,and
    to perform a i1 other duties and services
Hon. J. G. Lyles - Page 5


    authorized and required to be performed by
    said Game, Fish and Oyster,Cozznission,and
    shall have the authority, powers, duties
    and functions heretofore vested'in Special
    Deputy Game, Fish and Oyster Commissioners
    and other employees of the ~Game,Fish and
    Oyster Commissioner.* * *"
         "Article 4026. Property of State.
    All fish and other aquatic animal life con-
    tained in the fresh water rivers, creeks
    and'streamsand in lakes or sloughs sub-
    ject to overflow from rivers or other
    streams within the:bordersof +,hisState
    are hereby declared to be property of the
    people~of this State, All of the public
    rivers, bayous, lagoons, creeks, lakes,
    bays and inlets in this State, and all
    that part of the Gulf of Mexico within
    the jurisdictionof t&As State, toget,her
    with their beds and bottoms, and all of
    the products ther.eof,shall continue and
    remain the property of the State of Texas,
    except in so far as the State shall permit
    the use of said waters and bottoms, or
    permit the taking of the products of such
    bottoms and waters, and in so far as this
    use shall relate to or affect the.taking
    and conservationof fish, oysters, shrimp,
    crabs, turtle, terrapin,mussels, lob-
    sters, and all other kinds and forms of
    marine life, or relate to sand, gravel,
    merl mud shell and all other kinds of
    aheli, the,Game, Fish and Oyster Commis-
    sioner shall have jurisdictionover and
    control of, in accordancewith and by the
    authority vested in him by the laws of
    this Stste."
          We have quoted the Constitutionalprovisions
of both the State and Federal Constitutionsand some
of our statutes which are pertinent to your question
in which you have used the word upremisesW. In this
connection,we direct your attention to the pr,ovisions
of Article 919, the statute which by it6 terms em-
powers deputy game and fish wardens at all times to
enter upon lands or water where wild game or fish are
known to range or stray for the purpose of enforcing
the game; and fish laws of thisstate, and for the
Hon. J. G. Lyles a Page.6


purpose of making scientificinvesti ationgTg ;z;dre-
search work as to such wild game or fish.
“premises”,as used in your question,might be con-
strued to include the private residence of the owner,
or of his tenant residing thereon, and those things
connected therewith, such as gardens, outhouses,and
appurtenancesnecessary for the domestic comfort of
the dwelling house, which ordinarilymay not be
searched without a search warraqt,or permissionof
the occupant thereof. It is our opinion that this
statute does not attempt to give the ,officersnamed
any such authority, for the statute only empower8
these officers “to enter upon any 1anUs or water
where wild game or fish are known to range or strays.
Wild game and fish do not range or atray into pri-
vate residences,places of businese or the appurte-
nances thereto.
          Our answer will be “mited to the author-
ity of deputy game and fisn wardens ‘to enter upon
any lands or water where wild game or fish are known
to range or stray” for any one or more of the pur-
posea enumeratedin Article 919, Penal Code, without
a search warrant and over the protect of the owner
of the land.
             The State of Texas owna in trust for the
  eo le of the State all the wild anImala and wild
girii  s, including wild fowl, within ite bordere.  It
also owns for the same purpose all fish and aquatic
life in the fresh water rivers, creeks, streams and
lakes,    or sloughs subject to overflow from rivers
or otner streams within the bounds of the State, in-
cluding all of the Gulf of Mexico its bays and in-
lets so situated. Articles 871, benal Code, and
4026, Revised Civil Statutes; Goldsmith and Powell
V. State, 159 S. W. (2d) 534 wrror refused;
;;eyenson v. Wood, 119 Tex. $63, 34 S. W, (2d) 246,
     a. 6,s(2d) 794.
          In view of the fore oing Statements, it
necessarily follows that the 8t&e, acting under its
police power, has the undoubted authorityto regulate
the taking of’its wild animals, wild birds, fish, and
other aquatic life, and to enact laws for the propa-
gation, protection,and preservationtbereof, includ-
ing the making of scientificinvestigation6and re-
search work. For all of these purposes, the State
has passed many general laws, both civil and criml-
Hon. JI G. Lyles,- Page 7,


nal, includingthose cited herein, and for the en-
forcement thereof has created the Game, Fish and Oys-
ter Commission,the Office of Executive Secretary,
Assistant Executive Secretary, Deputy Game and Fish
Wardens and presaribedtheir powers and duties.
These deputy wardens in the execution of the duties
imposed upon them by statute exercise the power and '
authority,given to sheriffs by the laws of this
State, and may arrest without a warrant any person
found by them in the act of violating any of the laws
for the protection and propa ation of ga-.le
birds or fish. (Article9057 ,Theyalso &v!%l       the
power conferred upon them by Article 919, and other
statutes.
          Neither the Constitutionand statutes of
this State nor the Constitutionof the United States
prohibits every search or seizure without a warrant,
but only.unreasonablesearches and selaures. Moore
v. Adams 91 S. U. (2d) 24'4;Jaakson v. State, 295
S. W. 614; Hughes vs.         9 Si,W. 173 184.
Crowell vs. State 180 S. W. 2d) 344; United States
VS. Rogato, 39 F 12d 171, 172, and authorities
cited therein; The A.,ourtsof this State, the Supreme
Court of the United States, and other Federal Court8
have held that searches of open fields or that which
is-open to view withou,ta search warrant, are not
prohibited by the Constitutionof either the State
or Federal Government. Wolf v. State 9 Se W. (2d)
350; McTyre v. State 19 S. W. (2d) 44; Crewel1 V'S
State 180 S. W. (2d) 34%; Robie v* State, 36 Si We
(2d) i75; Hester v.‘United~Statea,265 U. S. 57;
United States v. Rogato su e;,United States va
McBride, 287 F. 214, 28&F 4lf;;,
                               261 U. SI 614.
          In the case of Wolf v+ State, supra, the
Gourt svam
          "It is apparent from the precedents
     that the immunity from interferenceis
     founded upon the desire to give effect to
     the idea that 'a manvs.homs,iehis castle',;
     that an unreasonablesearch is one ,which
     trenches upon the peaceful enjoyment of
     the house in which he dwells or in which
     he works and does business, and those
     things connected therewith, such a8 gar-
     dens, outhouses,and apprtenances neces-
     sary for the domestic comfort of the dwell-
Hon. J. G. Lyles - Page 8


    ing house or that in which the business
    is conducted. In its limitations,the
    immunity intended is analogous to that
    which applies to the curtilage of which
    the common law speaks, and does not ren-
    der unreasonable the search of woods,
    fields, ravines, or open spaces not so
    connected with the place of business or
    dwelling, though owned by the same in-
    dividual".
          In McTyre1-sCase, supra, the Court, after
referring to the Wolf Case and substantiallyquoting
that part of the opinion which we have just quoted,
added thereto the following:
         "That is to say, unless the place
    to be searched comes within the purview
    of an unreasonablesearah as above Ian-
    dicated, the search may uc.made without
    a warrant."
          In the recent case of Crave11 v. State,
supra, the Appellant was convicted for keeping a
bawdy house; as prohibited by Article 514 P. C.
Upon his trial objccqion was made to the admission of
testimony by witnesses, one of whom was deputy sher-
iff, as to what they saw in appellant'shouse by leek+
ing through a window. In passing upon this sbjection,
the Court said:
         "Appellantnsxt contends that such
    testimony was inadmissibleunder Article
    727a, C. C. P., which prohibits the use
    of evidence obtained by an officer er
    other person,'in vwlation af the laws
    of this State, because, at the time,the
    witnesses saw what was transpiringin the
    hcuse, they were tresspassersa
          "Whether the parties were guilty ef
    a civil tresspass is beside the question
    and is immaterial,because the statute
    mentioned has applicaticnto the viola-
    tion of laws of this State, and there is
    no statute making it an offense merely
    to go upon the premises or property of
    anotker.. Hence the facts fail te ahw
    that the parties were guilty of a 0firina1
.




    Hon. J. G. Lyles - Page 9


        tresspass merely because they were on the
        appellant'spr4mises, or that in so doing,
        they violated any statute. The provi-
        sions of Article 727a, C. C, P., relied
        upon is, therefore,neither applicable
        nor controllinghere."
              Deputy game and fish wardens are public of-
    ficers of this State who are charged by statute with
    the duty of enforcing the gam4, fish and oyster laws
    of the State.~ Articles 905, 906, 914, 9'.9, 9'78f,
    Sections 1 and 6. The general rule is that an offi-
    cer acting in the performanceof his duty,does not
    commit a civil tresspass unless he,orceeds the au-
    thority under which he acts. 41 Tax. Jur., 409,
    Sec. 2 et seq; 43 Am. Jur. 585, sec. 273, 52 Am. Jur.
    864, Sec. 41.

              In view of what we have heretofore said
    andthe authorities.cited,It is our opinion that
    Article 919 is a.valid Statute and confers upon
    deputy game and fish wardens all the authority it
    purports to give them. Such offiaers may legally
    at any time enter upon            including in-
                           vi lands*
    closed land, or water *nt,in this State whcr4 wild
    game or fish are knoti to range or stray for any or
    all of the purposes enumerated in said Article, and
    may legally so do without a search warrant and over
    the protest of the owner or the person in charge or
    possession thereof.
                           SUMMARY
              Article 919, Penal Code, does not
         attempt to confer authority upon deputy
         game and fish wardens to search without
         a warrant, the house in which one dwells
         or in which he works and does business,
         and those things connected therewith,
         such as gardens, outhouses,and appur-
         tenances nec4saary for the domestic COEI-
         fort of the dwelling house or in which
         the business is conducted..
              Deputy game and fish wardens may
         legally at any time, enter upon any
         lands, &cluding inclosed lands, or way
         ter within this State where wild game
         or fish are known to range or stray for
Hon. J. G. Lyle.5- Page 10


    any of the purposes enumerated in Article
    919, 'Penal Code, without a search.warbant,
    and over the'protest of the owner or per-
    son in charge or possession thereof.
                                Yours very    truly,
                             ATTORNEY GENERALOF TEXAS




                                                           ..



                             A-i'TORNEP.
                                     GENERAL OF TEXAS
     BWB/LH/erc

     APPROVED? OPINION COIWtTTEE By B,W.B.,     CHAIRMAN
