             EA~KT~RNEP           GENE
                     OFTEXAS




Honorable Charles Ii.Rolton     Opinion No. C-259
County Attorney
Basque County                   Re:    Under Article 893, Section 1,
Meridian, Texas                        of the Penal Code, is the
                                       forfeiture or resto,ratlonof
                                       the lkense discretionary
                                       with the court: or, is the
                                       right vested in the defendant
Dear Sir:                              under such Article?
     We have received and carefully consideredyour request for
an opinion upon the following question:
         "Under Article 893, Section 1, of the Penal
    Code, is the forfeiture or restorationof the
    license discretio,narywith the court: or, Is the
    right vested in the defendant under such Article?"
It should be noted that Acts 39th Leg. 1925, ch. 172, p. 387
provided in Sec. 30, as follows:
         "Any person convicted of violating any pro-
    vision of the game laws of this State shall there-
    by automaticallyforfeit his license for said
    season; . . ."
Thereafter the above mentioned forfeiture statute was amended by
Acts 53rd Leg. 1953, ch. 5, p. 11, codified as Article 893, V.P.C.,
as follows:
         "Section 1. Any person charged In any
    court in this State with an offense of vio-
    lating any law which it is the duty of the
    Game ,andFish Commission to.enforce shall have
    the right to have the court or jury before
    which said person is tried either to forfeit
    the license of said person so charged or to
    restore said license to said person soxged
    ‘Tarthe remainder of the license period. The
    court shall so state In its judgment whether



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Honorable Charles Ii.Bolton, Page 2 (C-259 )


     or not the license of said person Is revoked
     or whether or not said person shall retain same."
     (Emphasisadded)
Section 5 provides:
          "The fact that such licenses are now
     automaticallyforfeited on a violation of any
     hunting and fishing law without allowing same
     to be at the discretion of the court, creates
     an emergency. . . .II (Emphasisadded)
     In the case of Ex parte A. J. Morris, 325 S.W.2d ~386(Tex.
Grim. 1959), the Court was basically concerned with the question
of the jurisdictionof the Justice Court. The Court while dis-
cussing the 1925 Forfeiture Clause and comparing it with the
1953 Forfeiture Clause stated as follows:
          "In construinga prior statute this Court
     held the license to be automaticallyforfeited
     by the final conviction;that the statute did
     not confer upon the court the authority to
     forfeit the defendant'sright to hunt, 'andthat
     the inclusion of such provision in the judgment
     was of no effect. Galloway v. State, 125 Tex.
     Cr.R. ,524,69 S.W.2d 89.
          "It Is apparent that the amended Article
     893, V.A.P.C. precludes such a holding. It
     specificallyprovides that the forfeiture of
     the hunting license of the defendant Is for
                       and must be provided for in
                         hasls added)
     It has been held time and time again that the cardinal rule
of statutory constructionis to ascertain the Legislature intent.
This rule is stated In 53 Tex.Jur.2d 180, Statutes, Sec. 125 as
follows:
          "The intention of the legislaturein enact-
     ing a law is the law Itself, the essence of the
     law, and the spirit that gives life to the enact-
     ment. It is the duty of the courts to give full
     recognition to the legislativeintent. . . .'




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Honorable Charles Ii.Bolton, Page 3 (C-259 )


Again, at page 183 of 53 Tex.Jur.2d, Statutes, Sec. 125 the
proposition is stated as follows:
          II
           . e .The Intent having been ascertained,
     the court will then seek to construe the statute
     so as to give effect to the purpose of the Legis-
     lature, as to the whole and each material part
     of the law, even though this may involve a.de-
     parture from the strict letter of the,law as writ-
     ten by the legislature. This is the fundamental
     canon and the cardinal, primary, and paramount
     rule of construction,which should always be
     closely observed and to which all other rules
     must yield. . . ." Brown and Root v. Durland,
     126 Tex. 20, a4 S.W.2d 1073 1935 St t        Ds
     145 Tex. 586, 200 S.W.2d 813((194$j. a e '*    er'
     53 Tex.Jur.2d 249, Statutes, Sec. 170 provides as follows:
          I,       n emergency clause may be consid-
     ered 1: it's
                47eds light on the inquiry and will
     aid the court in ascertaining the legislative
     intent,. . .'I
     53 Tex.Jur.26 252, Statutes, Sec. 173 states:
          "When necessary to arrive at the proper
     constructionof a statute, a court may con-
     sider its legislative history and the history
     of legislationgenerally pertaining to the
     subject with which it deals. Legislative
     history is admissible when It will aid in ar-
     riving at the intention of the legislatureor
     that of,#personsemployed to codify the laws
     . . . .
     It was shown above that Section 5 of Article 893 spoke of
the forfeiture of the license being at the dis~cretionof the
court. This is further evidence, in light of the prior auto-
matic forfeiture provision that the Legislature intended that
there would be no more automatic forfe%ture;but that the de-
fendant had the right to elect whether he wanted the,court or
jury to consider forfeiting or reinstating his license. After
he makes his election as to whether he wahts the court or the
jury to decide, then the forfeiture 6r reinstatementis at



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Honorable Charles Ii.Bolton, Page 4 (c-259 )


the dlacret'ionof the court or jury. If the Legislature Intended
to give the defendant'theright to elect that neither the court
or jury could de&lde.whetherto revoke the license or restore
881118,
      it'would not have provided In the 1953 Ameridmentthat, "The
court shall so state in its judgment whether or not the license
of saim&on      is revoked or whether or not said person~sh811:-J
retain same." (Jiinphaalsadded) It Is clear that the Legislatui-e
merely intended to give the defendant~theright to decide tihether
the court or the u    would make'the decision as to forfeiture or
rest5Z%iXonof hisJ-z cerise.
                      SUMMARY
          Under Article 893, Section 1, V.P.C., the
     forfeiture or restorationof a hunting, fishing
     or trapping license is discretionarywith the
     court if the defendant elects to have the court
     decide rather than the jury.
                              Very truly yours,
                              WAGGONER CARR
                              Attorney General of Texas




JPB:aj
APPROVED
OPINION COMMITTEE
W. V. Geppert, bhairman
Roy Johnson
Roger Tyler
lp-a;yCpozman
 . .
APPROVXD FOR TEE ATTORN.EYGENERAL
By: Hawtho%ne Phillips




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