                      November 20, 1972


Honorable Clayton T. Garrison       Opinion No. M-1265
Executive Director
Texas Parks & Wildlife Department   RB:   Authority of the Texas
John H. Reagan Building                   Parks & Wildlife Dept.
Austin, Texas   78701                     or other state agency
                                          to issue licenses pur-
                                          suant to 16 U.S.C.A.
Dear Mr. Garrison:                        §742j-l(b) (1).

     You have submitted the following question:

             "Is the Texas Parks and Wildlife Department
          or any other State agency authorized to issue
          permits or licenses pursuant to Public Law 92-
          159, Section (b)(l) (85 Stat. 480, 16 U.S.C.A.
          7423-l) and for the purposes contemplated by the
          named statute."

     The federal statute, 16 U.S.C. §742j-1 reads as follows:

             (a)   Any person who--
                 (1) while airborne in an aircraft shoots or
          attempts to shoot for the purpose of capturing or
          killing any bird, fish, or other animal; or
                 (2) uses an aircraft to harass any bird, fish
          or other animal; or
                 (31 knowingly participates in using an aircraft
          for any purpose referred to in paragraph (1) or (2);
          shall be fined not more than $5,000 or imprisoned not
          more than one year, or both.

              (b) (1) This section shall not apply to any
          person if such person is employed by, or is an
          authorized agent of or is operating under a
          license or permit of, any State or the United
          States to administer or protect or aid in the
          administration, or protection of land, water,




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Honorable Clayton T. Garrison, page 2    (M-1265)


          wildlife, livestock, domesticated animals, human
          life, or crops, and each such person so operat-
          ing under a license or permit shall report to
          the applicable issuing authority each calendar
          quarter the number and type of animals so taken.

             (2) In any case in which a State, or any
         agency thereof, issues a permit referred to in
         paragraph (1) of this subsection, it shall file
         with the Secretary of the Interior an annual re-
         port containing such information as the Secre-
         tary shall prescribe, including but not limited
         to--

                (A) the name and address of each person to
          whom a permit was issued;
                EJ) a description of the animals authorized
          to be taken thereunder, the number of animals
          authorized to be taken, and a description of the
          area from which the animals are authorized to be
          taken;
                CC) the number and type of animals taken
          by such person to whom a permit was issued; and
                CD) the reason for issuing the permit."

     The above quoted federal statute does not authorize the
Parks and Wildlife Commission or any other State agency to issue
permits or licenses pursuant thereto. The statute does provide
an exception whereby it I'. . .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 admini-
stration, or protection of land, water, wildlife, livestock,
domesticated animals, human life, or crops . . ." However,
there is no authority vested in any State agency to issue permits
or licenses under this exception. Such authority must come from
the Legislature.

     While Article 192b, Vernon's Civil Statutes, 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 animals, it
does not create a licensing procedure as contemplated by the
federal Act.

     Article 901, Vernon's Penal Code, prohibits the use of
aircraft



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Honorable Clayton T. Garrison,'page     3    (M-1265)


          II
               . to hunt, take, capture, or kill,
                   .   .                                or
          attempt to hunt, take, capture, or kill       any
          of the wild game birds, wild game fowl,       or
          wild game animals protected by the laws       of
          this State. . .'I

However, this statute applies only to game species.

     Because there is presently no state apparatus for licensing
individuals by a state agency as contemplated by 16 U.S.C. 742
j-1, the federal act does not become applicable in Texas until
thirty days after the end of the next regular session of the
Texas Legislature.  Pub.L. 92-159, 53, 85 Stat. 480.

                           SUMMARY

          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. §742j-l(b) (1). This federal Act is not ap-
     plicable to Texas until 30 days after the end of the
     next regular session of the   xas Legislature.

                                       truly yours,

                                               I
                                             (ii*
                                            . MARTIN
                                        ey General of Texas

Prepared by Thomas M. Pollan
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

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

Max Hamilton
Ben Harrison
Bob Lattimore
Arthur Sandler




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Honorable Clayton T. Garrison, page 4   (M-1265)



SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOIA WHITE
First Assistant




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