              THE         ATTORNEY    GENERAL
                             OF TEXAS
                          AUSTIN,   T-E          78711




                                February   13, 1974


The Honorable Clayton T. Garrison          Opinion No.     H-     228
Texas Parks & Wildlife Department
John H. Reagan Building                    Re:        Authority     of deputy game
Austin,   Texas   78701                               wardens

Dear Mr;    Garrison:

        You have asked three questions involving the interpretation of
Article   978f-5f, Vernon’s Texas Penal Code Auxiliary    Laws, which
provides:

                     “Section 1. The Executive Director     of the
             Parks and Wildlife Department may commission
             deputy game wardens to serve at the will of the
             Executive Director.       The Parks and Wildlife
             Commission      is authorized to promulgate all
             necessary     rules and regulations  to govern the
             qualifications,    conduct and duties of such wardens
             when commis sioned.

                     “Sec. 2. A person commissioned       under the
             provisions   of Section 1 of this Act is authorized to
             enforce the laws of this state relating to hunting
             and fishing,   and to the preservation   and conservation
             of wildlife and marine animals,       The Parks and
             Wildlife Department     shall prescribe  the geographical
             area in which a deputy game warden shall operate.

                    “Sec. 3. Prior to entry upon duty and
             simultaneously  with his appointment,   a deputy
             game warden shall file an oath and bond in the
             amount of Two Thousand Dollars     ($2,000)  payable
             to the Parks and Wildlife Department.




                                     p. 1063
The Honorable         Clayton   T.    Garrison,   page 2     (H-228)




                     “Sec. 4. Such deputy game wardens when
              commissioned,     shall serve without compensation
              from the State of Texas,    but the Parks and Wildlife
              Department    is authorized to expend whatever funds
              necessary   to support and maintain this responsibility.                ”

       Your   first    question      is:

                     “Does a Deputy Game Warden commissioned
              by authority of Article 978f-5f Vernon’s   Texas
              Penal Code have authority to make an arrest without
              a warrant and carry a sidearm (handgun) while per-
              forming his assigned law enforcement     duties? ”

       -Section 46.03, Vernon’s  Texas            Penal    Code,   indicates    that a handgun
may   be carried lawfully by a person

                       “(I) in the actual discharge of his official duties
               as a peace officer,     a member of the armed forces or
               national guard, or a guard employed by a penal
              ’institution;

                    “(2) on his own premises              or premises     under
              his control;

                        “(3) traveling;      or

                    “(4) engaging in lawful hunting or fishing                 or
              other lawful sporting activity. ”

A deputy game warden may carry a handgun under enumerations           (2), (3)
and (4) of 5 46.03 without regard to any official status he may have by
virtue of his commission.    Attorney General Opinion H-185 (1973).        How-
ever, appointment as a deputy game warden permits a person to carry a
handgun only if a deputy game warden is a peace officer.      Article    2.12,
Vernon’s   Texas Code of Criminal Procedure,lists     as peace officers:




                                              p. 1064
The Honorable   Clayton     T.    Garrison,   page 3   (H-228)




                   “(,l) sheriffs     and their deputies;

                   “(2) constables       and deputy constables;

                   ” . . . .

                   “(8) any private person         specially   appointed
            to execute criminal process;

                   ..
                        . . . .

                  “(11) game management    officers commis-
            sioned by the Parks and Wildlife Commission;               , . . ,. ”



The only authority of the Parks and Wildlife Commission    to commission
its personnel,    whether “game wardens” or “game management      officers, ”
as peace officers and the authority of those so commissioned    are set out
in Article  978f-5c,   Vernon’s Texas Penal Code Auxiliary  Laws:

                    “The Executive Director       of the Parks and
            Wildlife Department,       in order to insure the adequate
            enforcement     of all laws in state parks and in state
            historical  sites under the jurisdiction       of the Parks
            and Wildlife Department,        is authorized to commission
            as peace officers any of the employees          provided for
            under the General Appropriation         Bill; and when so
            commissioned,       said employees     are vested withal1
            of the powers,     privileges,    and immunities     of peace
            officers while on state parks or on state historical
            sites or in fresh pursuit of those violating the law in
            such state parks or state historical        sites.  (Emphasis
            added)

       Since Article 978f-5f,  supra, specifies that the deputy game wardens
which the Executive   Director may commission     “shall serve without compen-
sation from the State of Texas, ” it is apparent that they are not “employees
provided for under the General Appropriations     Bill” as required by Article




                                         p. 1065
The Honorable    Clayton   T.   Garrison,   page 4   (H-228)




978f-5c,   supra, and may not be commissioned       as peace officers.     For
the same reasons,      we do not believe they can be considered     peace officers
under Article   2.12, Vernon’s    Texas Code of Criminal Procedure,        except
when they are specially appointed to execute criminal process.           See
Attorney General Opinion H-167 (1973).       Our view is supported by the
Legislature’s   failure to list deputy game wardens     in its definition of
I’peace officer” as it listed deputy sheriffs and deputy constables.

       Our   view is further supported by the Legislature’s       amendment of
the bill which later became Article     978f-51.    The bill, as introduced,
spoke of commissioning       persons as peace officers,     while the amendments
omitted every one of several provisions       of the bill specifically   designating
deputy game wardens as peace officers.         See House Journal,      63rd Leg.,
R.S.,   p. 829 (Feb. 27, 1973), Ibid, at pp. 3337-8       (May 10, 1973); Senate
Journal,    63rd Leg.,   R. S., pp. 1025-7 (May 8, 1973); also see the copy of
the bill as introduced on file in the Legislative     Reference    Library.   There-
fore,  it is our opinion that deputy game wardens are not peace officers
and~are not authorized to carry handguns by virtue of their commissions.

       Deputy game wardens are authorized      “to enforce the laws of this
State relating to hunting and fishing,  and to the preservation      and c.onser-
vation of wildlife and marine animals. ” The Executive Director          of the
Parks and Wildlife Department has similar duties,          Artic,le 906, Vernon’s
Texas Penal Code Auxiliary     Laws, and to the extent that deputy game
wardens are charged with assisting     the Executive Director in fulfilling
his responsibility  to enforce the game laws, they are his deputies.         As
such their power to make arrests     is set out in Article    905, Vernon’s   Texas
Penal Code Auxiliary    Laws, which provides in part that:

                    “[The Executive Director]   or any of his deputies
             may arrest without a warrant any person found by
             them in the act of violating any of the laws for the
             protection and propagation of game, wild birds or
             fish, and take such person forthwith before a magis-
             trate having jurisdiction.   Such arrests  may be made
             on Sunday, and in which case the person arrested
             shall be taken before a magistrate   having jurisdiction,
             and proceeded against as soon as may be, on a week
             day following the arrest. ”




                                       p. 1066
The Honorable       Clayton   T.    Garrison,      page 5   (H-228)




       Therefore   our answer to your first question is that a deputy game
warden may make an arrest without a warrant if he discovers       a person
in the act of violating a game law, but that his commission    does not
authorize him to carry a handgun.     See also Article  914, Vernon’s  Texas
Penal Code Auxiliary    Laws.

        Your   second question           is:

                      “Can a Deputy Game Warden commissioned
               by authority of Article 978f-5f,    Vernon’s  Texas Penal
               Code [Auxiliary   Laws] be certified as a reserve    officer
               by the Commission     on Law Enforcement     Standards
               and Education after completing     the educational require-
               ments specified by Article 4413(29aa) Vernon’s      Texas
               Civil Statutes? ”

        Article 4413(29aa),      $2A,    V. T. C. S., gives the Commission           on Law
Enforcement       Officer Standards and Education the responsibility               of estab-
lishing minimum standards for reserve              law enforcement       officers.     The
same Legislature        which enacted 5 2A of Article 4413(29aa) estab~lished three
types of reserve       officers.   They are reserve        policemen. of cities,      towns
or villages    (Article 998a, V. T. C.S.);       reserve    deputy sheriffs and reserve
deputy constables       (Article 6869.1,     V. T. C. S.).    We have found nothing in
Article   978f-5f   or any other, statute to indicate that deputy game wardens
are reserve     law enforcement       officers.    Therefore,     it is our conclusion
that deputy game wardens do not qualify for certification               as reserve      officers.

       Your    third question      is:

                      “Is a Deputy Game Warden commissioned         by
               authority of Article   978f-5f Vernon’s    Texas Penal
               Code authorized    to sign and file a trespass complaint
               for a violation of Article 1377b Vernon’s     Texas Penal
               Code if he is the landowner’s    authorized agent? ”

      Article 1377b of the former penal code has been repealed.     To the
extent that the provisions of that Article are retained in the new Penal
Code, they are found in § 30.05,   which provides in part:




                                               p. 1067
The Honorable      Clayton   T.   Garrison,    page 6     (H-228)




                     “(a) A person commits an offense               if he enters
              or remains on property or in a building               of another
              without effective consent and he:

                             “(I) had notice    that the entry was forbid-
                      den,; or        I
                                     :
                            “(2) received      notice   to depart     but failed
                      to do so.”       ’

Article 137713 was much more specific and applied only to entry on enclosed
lands for the purpose of hunting, fishing or camping.                 Section 4 specifically
gave game wardens the authority to arrest violators                 of the Article.     The
predecessor    statute to Article     1377b. Article     1377, did notcontain specific
provisions   granting enforcement        authority to game wardens.            This office
has held that that statute was a law to protect ,landowners rather than a
game law and that game wardens had no authority to arrest a violator of
the statute.   Attorney General Opinion O-6936              (1946).    As the specific grant
of enforcement    authority contained in Article         1377b has been repealed,          we
can find no authority for a deputy game warden to enforce the provisions
of 5 30.05,  Vernon’s    Texas Penal Code, other than those he enjoys as a                    -
private citizen.    However,     as  a  private   citizen,    he  is  authorized    to sign
and file a complaint,    Article    15.05,   Vernon’s      Texas Code of Criminal Pro-
cedure.

                                         SUMMARY

                      A deputy game warden commissioned         under
              Article   978f-5f,  V. T. P. C. Auxiliary    Laws, is autho-
              rized to arrest,   without warrant,     violators  of the
              game laws, but his commission        provides him no
              authority to carry a handgun.      Deputy wardens are
              not entitled to be certified as reserve      law enforcement
              officers and enjoy no authority,, other than that of a
              private citizen,   to enforce the criminal trespass       laws,




                                          Attorney      General     of Texas




                                          p. 1068
The Honorable   Clayton   T.   Garrison,       page 7 (H-228)




Opinion Committee




                                    .      .




                                        p. 1069
