                      HE      AXTORNEY                GENE
                                  OFTEXAS
                               Amwrm.   TEXAS         78711
  JOHN   L. BILL
Ax-rORNEY CIIENsR*L
                                        August    2, 1973


       The Honorable Clayton Garrison                    Opinion No.   H-   78
       Executive Director,  Texas Parks    &
       Wildlife Department                               Re:    Whether personnel     employed
       John H. Reagan Building                                  by the Parks and Wildlife
       Austin,  Texas 78701                                     Department    must be issued
                                                                permits of authorization     in
                                                                order that they may take,
                                                                transport,  release,     manage;
                                                                or otherwise, handle fish and
                                                                wildlife species of the State of
                                                                Texas for investigation,     pro-
                                                                pagation,  distribution,   or
       Dear Mr.   Garrison:                                     scientific purposes.

            You have requested an opinion as to whether employees     of the Parks and
       Wildlife Department are required by law to obtain a permit to take, transport,
       release,   manage,  or otherwise handle fish and wildlife species of this State
       for investigation, propagation,  distribution, or scientific purposes.

           The issuance of permits by the Parks and Wildlife Department        for the
       taking of protected wildlife and fish is governed by Article 913 of Vernon’s
       Texas Penal Code.     Section 1 empowers the Department     to allow “qualified
       persons to take protected wildlife and fish for propagation,    zoological
       gardens or scientific purposes. ”

           The Legislature,    through Article 913, V. T. P. C., has further prescribed
       the manner in which permits are to be granted (5 l), restrictions      concerning
       certain wildlife (5 5 1 and la), the duration of the permitted use (5 2), and
       conduct required of the holde,r together with specific penalties for misconduct
       (5 $ 4, 6,’ and 7). All of these are of the nature of mandatory requirements
       once the Department has exercised      its discretion in issuing a permit:

                   “Permits  may be granted upon application
               made under oath indicating the particular   species
               and purpose of collection   ” $1, Article 913,
               V. T. P. C. (Emphasis   added)



                                          p.    354
The Honorable   Clayton   T.   Garrison,    page 2. (H-78)




    In contrast to the above provisions restricting   the issuance and use
of permits,   the Parks and Wildlife Department    is granted extensive power
to regulate the conduct of anyone, including a permit holder,     taking and
possessing   protected  species:

            “Sec. 3: The Parks and Wildlife Department
       may prescribe    reasonable   rules and regulations
       concerning the taking and possession      of protected
       wildlife species indigenous to the State of Texas or
       fish indigenous to the State of Texas for scientific
       purposes,   zoological  gardens,   and for propagation
       purposes.    Said department may cancel any permit
       granted pursuant to this Act for violation of such
       rules and regulations.   ‘I (Emphasis   added)

    Further,   the Department may not only set its own rules and regulations
but also is vested with comprehensive  authority to handle the State’s
wildlife and fish:

             “Sec. 5: The Parks and Wildlife Department
        at all times shall have the power to take, transport,
        release,   or manage any of the wildlife and fish of
        this state for investigation, propagation,   distribution
        or scientific purposes. ” (Emphasis     added)

     Finally, § 6, in describing  those who are exempted from prosecution    for
violation of the State’s wildlife and fishing laws, includes both the holder
of a Parks and Wildlife Department permit and an employee of that Depart-
ment, clearly indicating that the employee handling wildlife for scientific
purposes need not be a permit holder.

             “Sec. 6: It shall be no defense in any
        prosecution  for violation of any of the wildlife
        or fishing laws of this state that the taking or
        transporting   of wildlife or fish was done for
        scientific purposes unless such defense is
        offered on behalf of a person holding a Parks
        and Wildlife Department permit which was
        valid at the time of the alleged offense,    or
        on behalf of an employee of the Parks and
        Wildlife Department      acting within the scope
        of his authority. ” (Emphasis     added)

                                       p.   355
      .-




The Honorable      Clayton   Garrison,   page 3          (H-78)




    The scope of an employee’s      authority would be defined by the rules
and regulations   which t.he Department    is authorized to make under $ 3
and which also govern the permit holder.        Coupled with the compre-
hensive grant of authority to handle wildlife in $ 5 and the defense to
prosecution   in § 6, this indicates that Parks and Wildlife Department
personnel may perform their assigned duties without first obtaining
permits of authorization.

                              SUMMARY

                Sections 3, 5 and 6 of Article 913, Texas
           Penal Code, indicate that personnel      employed by
           the Texas Parks and Wildlife Department       need
           not obtain permits authorizing    them to take, trans-
           port, release,   manage or otherwise handle fish
           and wildlife species of the State of Texas for
           investigation,  propagation,  distribution  or scien-
           tific purposes.

                                              Very   truly yours,




                                              Attorney     General   of Texas




DAVID M. KENDALL,            Chairman
Opinion Committee




                                         p.    356
