                                January   7, 1975


The Honorable     Clayton T. Garrison               Opinion No.    H-   487
Executive   Director
Texas Parks and Wildlife Department                 Re:      Jurisdiction   over
John H. Reagan Building                                      juveniles,   14 to 17
Austin,   Texas 78701                                        years of age for
                                                             violation of game and
Dear Mr.    Garrison:                                        fish laws.

    You have requested our opinion concerning jurisdiction  over violations
of the game and fish laws and the Water Safety Act, V. T. C. S., article
9206 (formerly  Penal Code, article 1722a) when the defendant is between
14 and 17 years of age.

     The fish and game laws and the Water Safety Act provide for different
penalties and jurisdiction      for various violations.   However,     section 8.07(b)
of the Texas Penal Code provides that a person under 17 years of age may
not be prosecuted     for or convicted of any offense other than aggravated
perjury,   a violation of a traffic ordinance,     and driving while intoxicated
unless the Juvenile Court waives, jurisdiction        and certifies  him to a District
Court for criminal prosecution.          Section 54.02 of the Family Code restricts
such a waiver and certification       to felony cases.   Since violations of the
fish and game laws or the Water Safety Act are with few exceptions mi,s-
demeanors,     this certification   process   will be unavailable   as a means for
prosecuting   persons under 17 years of age for most violations.             Nevertheless,
this procedure may be utilized when the violation constitutes a felony, which
is defined as an offense punishable by confinement in the penitentiary.
Penal Code, $1.07 (14).

     Where the offense is a misdemeanor      other than those listed above,
section 8.07 of the Penal Code in effect requires the case to be brought as
a juvenile proceeding under Title III of the Family Code.         Unless certified
to the District  Court violations constituting a felony must also be brought
under Title III. Section 51.04 of the Family Code gives the Juvenile Court
exclusive jurisdiction   over proceedings   under Title III. Section 51.03(a)
defines delinquent conduct as that which violates a penal law punishable
by imprisonment     or confinement in jail.   Section 51, 03(b)(l) specifies   conduct




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The Honorable    Clayton   T.   Garrison,   page 2   (H-487)




that on three or more occasions    violates a penal law of the grade of
misdemeanor    that are punishable by fine only as “conduct indicating a
need for supervision.”    The question of whether a child has engaged
in delinquent conduct or conduct indicating a need for supervision   is a
matter within the jurisdiction  of the Juvenile Court.  Sec. 51.04.

     You also ask what is the correct procedure   for your commissioned
officers to follow when they find juveniles in violation of game and fish
laws punishable by fine only.

     A commissioned     officer of the Parks and Wildlife    Department is a
peace officer,    Tex. Code Grim. Proc.,      art. 2.12(D).   A peace officer
may arrest a person who commits any offense within his presence.              Tex.
Code Crim. Proc.,      art. 14.01(b).   A child may be taken into custody
pursuant to the laws of arrest.       Family Code, sec. 52.01 (a)(2).     Alterna-
tively, ‘a child may be issued a warning notice in lieu of taking him into
custody,   if certain guidelines for such a disposition     have been established
by the law enforcement      agency involved and approved by the juvenile
court of the county.     See
                         -    Family Code, sec. 52.01(c);    sec.  52.03.

    Where the officer takes the child into custody,     he shall,without
unnecessary   delay, take action as specified in Family Code sectibn52.02.
These actions include releasing the child to a parent or guardian upon
the adult’s promise to bring the child before the juvenile court on request,
bringing the child to the office or official designated by the juvenile court,
bringing the child to a detention facility designated by the juvenile court,
or disposing of the case without referral to court as provided in Family
Code section 52.03.    Such a disposition   can include a conference    with
the child and his parent, guardian,     or custodian.

    While a single violation of a game and fish misdemeanor   is not a
basis on which a child may be determined to be in need of supervision,
three occurrences   of such conduct do provide a basis for such a deter-
mination.   Family Code, sec. 51.03.    The law enforcement  files and
records of such violations may be utilized by the juvenile court in sub-
sequent proceedings   concerning the child.  Family Code, sec. 51.14(d)(l).




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The Honorable    Clayton   T.   Garrison,      page 3     (H-4871




                        SUMMARY

             Jurisdiction    over a minor between 14 and 17 years
        old for a violation of fish and game misdemeanor         offenses
        is in the Juvenile Courts.      The procedure    for handling
        these minors can involve taking the minors into custody.
        Alternatively,     a law enforcement   agency may adopt
        guidelines     for disposition of cases involving children
        without referral to the juvenile court, which guidelines
        must be approved by the juvenile court of the county.
        If the minor is taken into custody,     the officer,  without
        unnecessary      delay, shall take the action specified in
        article 52. 02 of the Family Code.

                                               Very   truly yours,




                                               Attorney   Ge,neral   of Texas

APPROVED:




DAVID   M.   KENDALL,      First   Assistant




C. ROBERT HEATH,           Chairman
Opinion Committee




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