                              April 22, 1987




Eouorable Dudley Harrison                      Opinion No.JM-683
Chairman
Commicree on Agriculture and                   Re: Authority to conduct animal
   Livestock                                   damage control activities
Texas Rouse of Representatives
P. 0. Box 2910
Austin. Texas   78769

Dear Representarive Harrison:

     In your inquiry, you pose the f&lowing          question:

             Is the law creating the Texas Rodent and
          Predatory Animal Control Service, under the
          cooperative agreement with the Federal government
          and the Texas A h M University System, the only
          authority needed to conduct animal damage control
          activities in the state and [are any] additional
          permits needed from the state to conduct animal
          hamage control?

     Article 192(b). V.T.C.S., Cooperation between state and federal
agencies In control of predatory aniaals and rodents, provides in
pertinent part:

                             State to cooperate

             Section 1. The State of Texas will cooperate
          through The Texas A 6 M University System with the
          appropriate officers and agencies of the United
          States in the control of coyotes, mountain lions,
          bobcats, the Russian boar, and other predatory
          animals and in the control of prairie dogs, pocket
          gophers, jack rabbits. ground squirrels, rats and
          ocher rodent pests for the protection of livestock,
          food and feed supplies, crops and ranges.

             .   .   .   .

                             Cooperative agreement




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Houorable Dudley Harrison - Page 2        (a-683)




             Sec. 5.  The Director of Extension of the System
          is hereby authorized and directed to execute      a
          cooperative agreement with the appropriate officers
          or agencies of the United States for carrying out
          such cooperative work in predatory animal and
          rodent control in such manner and under such
          regulations as may be stated in such agreement.

             .   .   .   .

                             Construction with other laws

             Sec. 10. The provisions, restrictions and
          peualties of Section 72.005, Parks and Wildlife
          Code, shall not be construed as applying to hunters
          and trappers under this Act,    provided they are
          acting iu performance of duties contemplated under
          the terms of this Act.

     You direct our          attention to 7 U.S.C.A..   seecion 426. which
provides:

              The Secretary  of Agriculture is authorized and
          directed to conduct such investigations, experi-
          ments, and tests as he may deem necessary in order
          to determine, demonstrate, and promulgate ache best
          methods of eradication, suppression, or bringing
          under   control on national forests and other
          areas of the public domain as well as on State.
          Territory, or privately owned lands of mountain
          lions, wolves, coyotes, bobcats, prairie dogs,
          gophers, ground squirrels, jack rabbits, and other
          animals injurious to agriculture, horticulture,
          forestry. animal husbandry, wild game animals,
          fur-bearing animals, and birds. and for the
          protection of stock and other domestic animals
          through  the suppression of rabies and tularemia in
          predatory or orher wild animals; and co conduct
          campaigns for the destruction or control of such
          animals:     Provided, That in carrying out the
          provisions of this section the Secretary of
          Agriculture may cooperate with States, individuals,
          and public and private agencies, organizations, and
          institutions.

     The circumstances which give rise to your       question are stated by
you as follows:




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Honorable Dudley Harrison - Page 3   (JM-683)




             A question has been raised concerning the animal
          damage control program under the Texas Rodent and
          Predatory Animal Control Service. Is there a need
          for this program to obtain a permit from the Texas
          Parks and Wildlife Department to conduct its animal
          damage control activities?

             Under the Parks and Wildlife Code there are
          prowlsions for permits for scientific, soological,
          and propagation purposes (V.T.C.S. Parks and
          Wildlife Code, chapter 43. subchapter C) and
          permits to control protected species (chapter 43,
          subchapter H) which is for a private citizen
          experieucing damage to crops or domestic animals to
          get a pensic from a county judge. Neither permit
          applies to the activities of the Rodent and
          Predatory Animal Control Service.

     In Attorney General Opinion M-1265 (1972), it was coucluded that
"neither the Parks and Wildlife Commission nor any other State agency
is authorized to issue licenses which would come within the exception
provided in 16 U.S.C., section 742j-l(b)(l)." The section in question
prohibits any person in an aircraft from shooting or attempting to
shoot for the purpose of capturing or killing any bird, fish, or other
animal. In addressing the matter of authority to grant a license
under an exception co the prohibition, the following was stated in the
opinion.

             The above quoted federal statute does not
          authorize the Parks and Wildlife Commission or any
          ocher State agency to issue permits or licenses
          pursuant thereto. The statute does provide an
          exception whereby it '. . . shall not apply to any
          person if such person . . . is operating under a
          license or permit of. any State . . . to administer
          or protect or aid in the administration. or
          protection of land, water, wildlife, livestock,
          domesticated animals, human life, or crops . . .'
          Bowever, there is no authority vested in any State
          agency to issue permits or licenses under this
          exception.   Such authority must coae from the
          Legislature.

             While Article 192b. Vernon's Civil Sracutrs.
          does authorize cooperation with the United States
          Department of the Interior by the State acting
          through the Agricultural and Mechanical College
          System of Texas in the control of certain predatory




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Honorable Dudley Harrison - Page 4    (J'M-683)




          animals, it does not create a licensing procedure
          as contemplated by the federal Act.

     The sicuacion you describe is different        from the situation
addressed in Opinion M-1265. In that case, the       legislature had not
enacted lagislatioa necessary for persons to come   within the exception
allowed by the federal statute. In this case,       the legislature has
enacted article 192(b) in response to 7 U.S.C.A.,   section 426.

     The legislature, in section 5 of article 192(b) authorized and
directed the Director of the Extension System to

          execute a cooperative agreement with the appro-
          priate officers or agencies of the United States
          for carrying out such cooperative work in preda-
          tory animal and rodent control in such manner and
          under such regulations as may be stated iu such
          agreement. (Emphasis supplied).

      While a copy of such agreement was not furnished us, we will
presume that such au agraement exists since the Director of the
Extension  System was authorized and directed CO execute oaa with the
appropriate officials of the United States. Since we have uot been
furnished with a copy of the agreement, we will presume that the
provisions thereof are sot in conflict with any state or federal law.
The language contained in article 192(b) reflects the legislature's
intentlou chat such agreement set forth the manner in which the
program for predatory and rodent control should be conducted and the
rules and regulations necessary for its operation. It is our 0piuG
that the legislature intended that the program promulgated as the
result of the agreement would be sufficiently inclusive to provide for
the only authority needed to conduct predatory animal and rodent
control in this state. Thus. the authority for the operation of the
program stems from such agreement.

                            SUMMARY

            The legislature, in enacting article 192(b).
         V.T.C.S.. intended that the program for predatory
         animal and rodent control to be promulgated as the
         result of an agreement between the director of the
         Extension System of Texas AhM Univrrsicy and
         appropriate United States officials be sufficient-
         ly inclusive to provide the only authority needed
         for the operation of such program.




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Honorable Dudley Barrisoa - Page 5   (JM-683)




                                     ,Veryjzo&



                                       JIM     MATTOX
                                       Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JDDGE ZOLLIE STRAlZP.T
Special Assistant Attoruey Genera3

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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