    ,




”




                             HE   A~~-oRNEY             GENERAL
                                      OF         WAS
                                   AUSTIIS. TEXAS      7Q711
        CRAWFORD    c. MARTIX
          *x-rOHNEY carGuER*l.
                                       February 2, 1972


              Mr. James U. Cross                       Opinion No. M-1062
              Executive Director
              Parks and Wildlife Department            Re:   Whether Article 880d,
              John H. Reagan Building                        Vernon's Penal Code,
              Austin, Texas   78701                          applies to the use of
                                                             exotic species of fal-
              Dear Mr. Cross:                                cons.

                   You have asked our opinion whether the provisions of
              Article 880d, Vernon's Penal Codel- in particular Sections
              2, 3, 4, 7, and 9 of that article - apply to falconers us-
              ing exotic species of raptors. This opinion is restricted
              to the question asked.

                   The capture , possession, and use of raptors or birds
              of prey is regulated by Article 880d, which was enacted by
              the Sixty-second Legislature.   Under Sections 1 (b), 1 (c),
              and 6, the Texas Parks and Wildlife Department (hereinafter
              "Department") may prescribe reasonable rules and regulations
              to carry out the provisions of the act. Pursuant to this
              authority, the Department has issued the "Texas Parks and
              Wildlife Department Policy on the Taking and Possession of
              Rantors for Falconry Purposes as adopted September 30, 1971."
              This regulation in Section 1.03 defines *raptor" as n0 o .
              any member of the Orders Falconiformesand   Strigiformes"
              and "falconry" as *I. . .the utilization of any member of the
              Orders Strigiformes or Falconiformes for the taking of wild
              birds or wild mammals during any prescribed open seasons."

                   No definition is given in either the Department regul-
              ation or the statute-to the term "native." This term is
              defined by Webster's Third New International Dictionary as
              I    .grown, produced, ore originating in a particular place
              &'a   region or country): not foreign or exotic. . *grown,
              produced, or originating-in the-vicinity:   not transported


                    1
                     All statutes mentioned are parts of Vernon's Penal
              Code unless otherwise indicated. This Article was enacted
              by Acts 62nd Leg., R.S., 1971, S.B. 372, ch. 176, p. 987.

                                              -5192-
Honorable James U. Cross, page 2       (M-1062)



from a distant region. 0 .living or growning naturally in
a given region., 0 0 an

     Among the definitions of "exotic: in Webster's Third
New International Dictionary is 'I0 0 Ofrom another country:
not native to the place where found. o o ." This office
is informed that the Department defines the term "exotic
species of raptors" to mean those raptors not native to
Texas.

     While penal laws generally are to be construed strictly,
they are not construed so strictly as to defeat the~legis-
lative intent when the intent is plainly manifest or is fair-
ly deducible from the statutory language,  53 Tex.Jur,Zd 304,
Statutes, Section 198. Criminal laws should be construed ac-
cording to the plain import of the language used. Article
7. A penal statute should be given a reasonable and common
sense interpretation,  Biszelle v. State, 116 S,W,2d 385 (Tex.
Crim., 1938).

      The plain import of Article 880d is to regulate the
 sport of falconry, With the exception of specific references
 to native raptors in Section 1 p the various provisions of the
 statute make no express distinction between.native~-land-exotic
 species of raptors, Section 5,~,which retains, as property of,,
 the people of this state all raptors captured;takenb   or pos-
 sessed in this state actually is not limited by its terms to
native raptors; but only~ wild animals, birds, and fowls with-
 in the borders of the state are made the property of the
~people. Article 871a, Thus Section 5 can apply only to na-
 tive raptors. Section 3 is the only authority in Texas law.
by which any person may hunt with a raptor, whether native
or exotic; The provisions in Section 3 for a nonresident's
hunting license and in Section 7 for a falconer's permit for
 a nonresident who establishes.permanent Texas residence and
who holds raptors under a'permit in another, state makes clear
 that the legislature intended to regulate the possession and
 use of exotic as well as native raptors, This view is strength-
 ened by the reference in Section 6 to those raptors classified
by the United States Bureau of Sports, Fisheries, and Wildlife
as rare or endangered, Consequently, it is OUT opinion that
Article 880d applies to the possession and use of exotic as
well as native raptors, except for those provisions of Section
 1 which apply expressly to native raptors and Section 5.




                              -5193-
Honorable James U. Cross, page 3        (M-1062)


                          CONCLUSION

          The provisions of Article 880d, Vernon's Penal
     Code, apply to the possessionand  use~.of exotic as
     well as native species of raptors, except that Section
     1 insofar as it refers to native raptors and Section
     5 apply only to native raptors;




                                       ney General of Texas

Prepared by Roland Daniel Green, III
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W.E. Allen, Co-Chairman

Sally Phillips
Jim Maxwell
Ken Nordquist
Linward Shivers

SAM MC DANIEL
Staff Legal Assistants

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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