Attorney General Opinion WW-0537

. Honorable Edna ClSneroS County Attorney winacy county Rapdvillej T6=6 OF TEXAS AUSTIN a~.%%- January 8j.1959 Opinion~Ao. wi-537 Re: Are the offenses of .!%unting at night", Art. 887, P. c., and “Killing a wild turkey hen", Art. m, P-C., of like nature for the purpose of ~enhancentent df penalty under h-t. 61, P.I c., and reLated questione. ..' : Dear Kiss Cisneros: In yoti request for en OpiniOI.f%OIW$hiS OfftCe, @U bSYe~eSkf?d 'the follawing qUe6tiOnS: _ . 1. Under Article 61 of the Penal Code, providing that "If ft be shown on the trial of a mi@+eawr that.the defendant~b66 been once befor convlcted‘of the Rame offense, he shall On a secand.cOnviction receive double the-punishQIe?lt prescribed for such offense ,in Ordinary cases, and upon a third Or any subsequent convictiowfor the'saiie offeme, the punishment shall be increased 60 88 not to eiCeed four times the pen- salty in ordinary cases", are the offenses of "hunting at night" (Art$cle 887 of the Penel Code) wherein the defendant ~68 ch6rged with hunting a deer at night, and'"killing a tild turkey" (ArtAle 877 of the P-1 Code) the 6am6 offense Or the 6ame:type offetie forths'purpoeee'oi~th6 ebOv6 witi 614 2. Can you also, since these are game viol&lone, con6true the Lllegal possession Or use of nets (Article 978~ as PeTbiDing to WillaCy county, Texas, acts 1933, .b3ra leg., Spec. L., p. 36, Ch. 29) 86 thS.S6m6 type of offense 66 the two above (inq~estion Ho. l):.fOr 6&6CtiVe prOSa- cutimunder A'rticle 61.4 3. can game violation cases.be taken to any Justice of the PesceIin the County? 1' : ,.‘ Aiticle @$i~of thb P-1 Code reads as iolhnm: "It 6bal.l be uulawful fork any person to take;klll, wound; Shoot at, bunt or possess, deed Or alive, any wild: turkey hen at any 6eammofthe year except a6 herein,.- sfterprovidad~ _- ._ . Honorable Edna Clsneros, Page 2. (WU-537) "Any person violating any of the provision6 of this Article shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined in any sum not less then Twenty- Five ($25.00) Dollars normore than,One Hundred ($lOO.CO) Dollars." Article 887 of the Penal Code reads as follows: "It shall be unlawful to kill, hunt or shoot at any wild bird, wild game bird, wild fowl, or wild game anis+ protected by 'this Act at any season of the year, between one-half hour after sunset and one-half hour before sun- ~~ rise in any county in this State. Any person violating any .~~ provision of this chapter shall be deemed guilty of a : :misdemeanor ax&upon conviction shall be fined in any sum not less than Twenty-Five ($25.00) Dollars, nor more than One Eundred ($100.00) Dollars, and each bird or animal so killed shall constitute a separate offense." Article g78j of .the Penal Code with.regard,to Willacy County (Acts 1933, b3ra Leg., Spec. L., p. 36,~:ch: 29; i. I23adS E&S fOllowS: ; %ection 1. It Shall be unl&ul~to'use a'seine, net. ,Or trawl or.to 'have in possesalon aseine, net :ortrawl in. .~ .or on any of the tidal waters'of Willacy Countywestof ~'I~. '.. Padre Island; provided, howeveri thati nothingoontained~in:.. this Act shall prohibit theeuse of a cast net fortaking '~ bait. .! "Section 2. Any.~&sc&YioLati& any provision of . . :.this.Act :shallbe deemed guiltyof amisdemeanor and upon, conviction shall be fined in a sum not less than Twenty- Five Dollars ($25.00) nor more than Two Hundred Dollars .($2oa.00). ~. .~ ~.I .~ - ,vSebti.od 3. All .&6W6, :or..pabtE.o$.lwre, ..in.‘SO afar 68 ~'.~ they'may conflict with the pXYXisiolI6 of.this Act, he and, the same are hereby repealed. : ~, . . "Section 4. The fact that the owners of lsnd abutting onthe LagunaMadre have donatedvaluabletracts oflandto the Raymondville Post of the American Legion for recreat- ianal purposes for the benefit of the entire public and'that the marine life of such waters cannot be properly conserved, and that such recreatlomal advantage6 cannot be properly developed if seines, nets and trawls are permitted to.be used, create an emergency and an imperative public aeceeslty~ that the Constitutional Rule requiring bills be read on ':,, .._: ., .~ .,: i . . . * Honorable Edna Cisneros, Page 3. (W-537) three separate days be suspended, and the same is hereby suspended, and this Act shall be in fully force and effect from and after its passage, and it is so enacted." The phrase "same offense", cm used In Article 61 of the Penal Code, which Article is quoted in full in Question 1 above, means an "offense of like nature". ,Lenore v. -, Tex.Crim.App., I.29 S.W. 2d 657 (1939). In Andrewa v: State,.Tex.Crim.App., 228 S.W. 2d 173 (1950), the appellant wa8 chargedh the offense of selling beer on Sunday between the hours of 1 o'clock.A.M., end 1 o'clock P.M. For the pur- pose of enhancement of the punlshm~nt as provided in Art,. 61, P. C., it was also charged that appellant had been previously convicted of the offense of possession of liquor for the purpose of sale in a dry area. On pages 175 and 176, it ~66 stated: "The'offense presently charged, and the offense of. which appellant Is alleged to have been previously con- @ctea.are~~++h viol&+ns.of Art.~ 667-l et seq., Vern&*s &IL P.'C. .) '"rhe offense~presently charged against appellant 1.8 a regulatory me*sure. She held a license and, being in a wet area, was permi$ted legally to sell beer at her cafe. Sale, however, was restricted on Sunday, a sale during-the -ms froml.o'clock A.M. to 1 01c&ock.Pd4.beiug made an o.Cfense . "The prior offense, on the other hand, is not a re- gulatory measure, but is a stat$e prohibit- sale or possession for the purpose of sale.of intoxicating iiquor, ,affedlve only in such areas as have been declared to be dry areas as .a re6ult of a local optioh election. . . . "We ar6 unwilling to hold that such offenses q& the same, or that they are of like character." You State that the Defendant was charged with hunting a deer ,Ft night!. Deer of the proper Species and 86x may be hunted during 6666011 with s, valid permit. Article 887,~P. C., We hold, therefore, in answer to Questioq 1, that prohibiting hunting at night, is a regulatory Act, while Article 877, P. C., prohibiting the,hunting of turkey hens, is a prohibitory Act, and therefore the two acts are not of like nature, and a conviction under either Act cannot be used to enhance the penalty for + violation of the other Act under Article 61 of the Penal Code. -. _- . . Honorable Edna Cisneros, Page 4. (W-537) i In Warner v. State, Tex.Crim.App., 42 S.W. 2d 616 (1931), the court said at page 617:' " . . 1 we think it wrong to lay down the rule that offenses possessing only a single element of samene68 are therefore the same or of the same nature; . a . Every rape, equally with every murder, is based on a necessary assault. Ihrery bigamy and every swindling proceeds on the basic theory of fraud, but it would not do-at all to say that these were therefore the same offenses, or offenses of the same nature." The provisions of Article 978j, P. C., prohibiting the u8e or possession of nets and seines in the tidal waters of Wlllacy County west of Padre Island, is a special law, which can only be violated In Willacy county. The purpose of the Act, a6 stated in Section 4 thereof, seems to be as much for protecting recreational advantages on land do- . nated to an AmericanLegIon Post as it is for protecting marine life. Article 877, P. C., is a,Bener*l'lav-designed to conserve end increas; the stock of wild turkeys throughout the entire state, by' protecting the female of the species from extermination; while we have held above that Article 887, P. C., is a regulatory Act. 'We, therefore, hold, In answer to question 2, that Art. 9783, P. C. (Acts 1933, 43rd Leg., Spec. L., p. 36, ch. a) is not anoffense of like nature as either Art. 877, P. C., or Art. 887, P. C., and a conviction under any of these three offenses may not be used to enhance the penalty under Article 61, P. C., upon a subsequent trial for:* violation of any of the other three cited Articles. Articles 60a, 6Oa-l and &a-2.of the Code of Criminal Proce- dure (H. B. 342, Acts 48th Leg., pp. 424 - 425);'attempts to place a restriction on which Justice Court may take jurisdiction of a misde- meanor case by reason of where the alleged offense was'committed or where the defendant lives. In Attorney General's Opinions No. O-6940 ,(1945) and No. v-496 (1948), it has been held that these statutes are unconstitutional, and that a misdemeanor complaint may be filed in any precinct within the county where the offense was committed, without regard to the precinct in which such offense was committed: .In answer to question 3, we hold that these two opinions, and the authorities cited therein, are applicable to all misdemeanors (including game law misdemeanors) over which the Justice Court, by reason of,the maximum punishment allowed by law, baa original jurisdiction. 1. Article 877, P.C., prohibiting the . hunting of turkey hens, and Article 887, P. C., prohibiting hunding atnight, are . . Honorable E&6 Cisneros, Page 5, (W-537) not offenses of like character.60 that a conviction of either of them may be tised. upon a subsequent trial fog &violation of the other Article to enhance the peualty untler Article 61,,~. C.. 2. The provisions of Article g78j of the P.C., a special law prohibiting the use or possession of nets and seines in the tidal waters 0f'Willacy County west of Padre Is- laud, is not au offense of like nature as either Article 877, P.C., or Article 887, P.C., and a conviction under &ny of these three offenses maynot be used to e&axe the penalty under Article 61, P.C.; upon 6 subsequent trial for a violation of any of the other three cited &rticles. 3. A complaint Charging a misdemeahor. over which a.Ju6tice Court has jUriSdiCt- ion, may be filed in 6ny Justice Court within the County in which the tillegefi of- fen66 OCCUrred. REF:aw APPROVED: 0PIIp1GNc!cWUlTEx: ~' George P. Blackburrr, Chdrm6n Houghton Brownlee, Jr. J.ArthurSan~in , Fred Werkenthlu RRVIEUED FORTHE:AlTGRNEYGEKESAL BY: W. V: Geppert '. .' : .:I, ,’ Yours very truly, wILLwIJJ3oN AttoraeJr,Oeueral~of Texas -RI&y Bug6&Flet&er Aaaistant..