                                                                              Opinion          No.        C-348


Uvalde,         Texas                                                         Re:        Whether            the     Parks          and
                                                                              Wildlife         Commission                    has     the
                                                                              lawful        right         to prohibit            the
                                                                              hunting        and          taking        of deer        upon
                                                                              the    state-owned                   dry     river        beds
                                                                              of Dimmit,              Uvalde,            and       Zavala
                                                                              Counties,             all     other        circumstances
                                                                              being        legal,         and      the     river       beds
Dear      Mr.      Crawford:                                                  being        legally          navigable.


                        By letter,            you     have         requested             an opinion              from       this       office
concerning              the above         question.


                        Article       3, Section              56, Vernon’s                  Texas          Constitution                pro-
vides      that    the     Legislature                cannot         be prohibited                  from         passing           special
laws      for     the    preservation                 of the        game        and fish            of this        State       in certain
localities.             This      provision           was       held     in Stephensen                     v.    Wood,        35 S.W.2d
794 (Tex.Civ.App.                    1930),         certified          questions             answered               34 S.W.Zd             246,
to give         to the     Legislature                power         to enact           srich     special            laws       without
notice        to preserve            game           and     fish     whether             applicable              to the      entire
State      or    merely           to certain          localities.


                        Pursuant          to this         constitutional                   authority,             the     57th      Legis-
lature,         Regular         Session,            enacted         House           Bill     No.      169,       Chapter           99, Sec-
tion     1 of said        laws,       applying            to Dimmit,                Uvalde          and         Zavala       Counties.
In Section          1 of said         Bill,      it was         provided             that      the    Game           and Fish
Commission                may       by proclamation,                     rule       or     regulation              provide          the means
and method              and     theplace             and manner                in which             such        wildlife         resources
may       be lawfully             taken       and     further          providing             that     it shall           be unlawful             to
hunt      and     take     game       unless           the      owner         of the        land      shall        give      consent
thereto.


                         Pursuant         to such            statute,         the State             of Texas             Parks         and
Wildlife         Commission,                  prior       to the        proclamation                  hereinafter                referred
to, held         public        hearings         regarding               its    proposed              regulations               in this



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Honorable                R. S. Crawford,                    Jr.,       Page        2 (C-348)


                                                                                                                         P
    three-county                area.         After         such        hearings,               the    Parks         and Wildlife
    Commission                 issued         its    proclamation                    on July           15, 1964,             said       proclama-
    tion     prohibiting            the hunting                  and     taking         of deer           upon       the State-owned
    river         beds     in such         counties.


                            It is     our      opinion            that      the    Legislature                   lawfully           granted            to
    the     Parks         and     Wildlife           Commission                    in House             Bill       No.       169 the discre-
    tionary         power         to regulate               the       taking       of game             animals,               game        birds         or
    fur-bearing              animals           by providing                    the means,              method             and       place       and         the
    manner           in which           s~uch wildlife                 resources                may       be lawfully               taken        in
    Dimmit,             Uvalde       and      Zavala             Counties.              The       question            of the abuse                of
    such         discretion,          if any,         by the Parks                   and        Wildlife           Commission                   is not,
    nor     can      it be,       before        us.. Such              matters            can     only         be decided               by the
    Courts          of the State.


                            In addition,              as noted              above,         consent             of the         owner         of the
    land     must          be obtained              prior         to the       use       of lands            for     the purpose                 of
    taking         game.         It has       been         the long-established                           rule       in Texas             that        the
    State        owns      the     soil     underlying                 navigable            streams,                whether             navigable
    in fact        or    by statute.            Grayburg                 Oil      Co.     v.     Giles,        143 Tex.             497,       501,
    186 S.W.2d             680      (1945); Landry,v.
                                            --_-~_    ------IRobison     110 Tex.  295, 298, 219 S.‘v’+‘.
    819 (1920);         State
                        ---          of Texas    v. Bradford,        121 Tex.  515, 530, 544, 50
    S.W.Zd          1065 (1932);            Diversion                 Lake        Club      v.    Heath,            126 Tex.            129, 138,
    86 S.W.Zd             441 (1935);          Heard             v.    Refugio,           129 Tex.             349,          359-360,          103
    S.W.Zd          728     (1937);        Lorino           v.    Crawford               Packing             Co.,     142 Tex.              51, 56-
    57, 175 S.W.2d                 410 (1943);             _Chicago,            R.I.      & G. Ry.             v.    Tarrant             County
    W.      C.    & I. Dist.         No.      1, 123 Tex.                432,      446,         73 S.W.2d             55 (1934);               Mau-
    frais        v. State        of Texas,            142 Tex.              559,        566,     180 S.W.Zd                  144 (1944).              As
    noted         above,        the State,           as     owner           of such         lands,           has     refused             its    con-
    sent      to the       taking         of wild          animals             upon       such        property.


                                                                          SUMMARY
                                                                          --

                                        The     Parks             and       Wildlife            Commission                   has
                            the lawful              right        in the        interest           of game            preser-
                            vation         to prohibit                the hunting               and     taking           of deer
                            upon        the    state-owned                   dry        river         beds      of Dimmit,
                            Uvalde,           and      Zavala            Counties,               pG;rsuant           to H.         B.
                            159, Acts               57th    Legislature,                  Regular              Session,             Chap-
                            ter     99, page              186.        The      question            of the          abuse        of such




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     Honorable          R. S. Crawford,             Jr.,     Page     3 (C-348)



                          discretion,         if any,      by the     Parks      and    Wildlife
                          Commission           is   not,     nor     can    it be,   before    US.
                          Such      matters      can       only    be decided        by the    Courts
                          of the State.


                                                                      Respectfully         submitted,


                                                                      WAGGONER             CARR
                                                                      Attorney       General       of Texas




                                                                      By:


                                                                            Assistant      Attorney     General


     CBS/lb


     APPROVED:
     OPINION            COMMITTEE
     W.    V.    Geppert,          Chariman
     Brady       Coleman
     Pat    Bailey
     George        BlRck
     3. C. Davis


     APPROVED               FOR      THE      ATTORNEY              GENERAL
     BY:        Roger      Tyler




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