Presenter: David Sinclair

Commission Agenda Item No. 18
Action
Hunting Deer with Dog Provisions
August 2005

I. Executive Summary: This item implements House Bill 1959, enacted during the most recent legislative session, which authorizes the Commission to adopt rules prescribing the type of firearm that may be possessed with a dog during an open deer season in certain East Texas counties.

II. Discussion: The 79th Texas Legislature amended Subchapter A, Chapter 62, Parks and Wildlife Code, to read as follows: Sec. 62.0065. Hunting Deer with Dogs. (a) Except as provided by Subsection (d), a person may not recklessly use a dog to hunt or pursue a deer in this state. (b) Subject to Subsection (a), the Commission by rule may prescribe the type of firearm that may be possessed during an open deer season by a person who is in actual or constructive possession of a dog while in the field on another person's land or property in Angelina, Hardin, Harris, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Newton, Orange, Panola, Polk, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, or Walker County. The Regulations Committee at its May 2005 meeting authorized staff to publish the proposed rule in the Texas Register for public comment. The proposed rule appeared in the July 22, 2005 issue of the Texas Register (30 TexReg 4200). A summary of public comment on the proposed rule will be available to the Commission at the time of the hearing.

III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts an amendment to §65.19, concerning Hunting Deer with Dogs (located at Exhibit A), with changes as necessary to the proposed text as published in the July 22, 2005, issue of the Texas Register (30 TexReg 4200)."

Attachment – 1

  1. Exhibit A – Proposed Rule

Commission Agenda Item No. 18
Exhibit A

Deer / Dog Rules
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department (TPWD) proposes an amendment to §65.19, concerning Hunting Deer with Dogs. House Bill 1959, enacted by the 79th Texas Legislature (Regular Session), added Parks and Wildlife Code, §62.0065, which stipulates that a person may not recklessly use a dog to hunt or pursue a deer in this state, and authorizes the Texas Parks and Wildlife Commission to prescribe by rule the type of firearm that may be possessed during an open deer season by a person who is in actual or constructive possession of a dog while in the field on another person's land or property in Angelina, Hardin, Harris, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Newton, Orange, Panola, Polk, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, or Walker counties. Penal Code, § 6.03, states, for the purposes of establishing the culpability that the offense requires, that “a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.”

House Bill 1959 and rules adopted under the authority of H.B. 1959 are intended to provide an enforcement tool to deter the unlawful hunting of deer with dogs in East Texas counties where the activity has historically occurred and continues to be problematic.

In 1990 the department promulgated rules prohibiting the use of dogs to trail deer in Angelina, Bowie, Camp, Fannin, Franklin, Hardin, Harris, Harrison, Houston, Hunt, Jasper, Jefferson, Lamar, Liberty, Montgomery, Morris, Nacogdoches, Newton, Orange, Panola, Polk, Red River Rockwall, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Titus, Trinity, Tyler, Walker, Washington, and Wood counties. At that time, hunters could use dogs to hunt deer for roughly half of the deer season, but for the other half of the season could only use dogs to trail wounded deer. The rulemaking was necessary because the department determined that dogs were being used unlawfully to hunt deer, and that in fact the use of dogs to hunt deer, even when it was lawful to do so, was causing depletion of the resource and in the process denying others an equitable and reasonable privilege to hunt deer. Department studies in 1989 indicated that deer populations were significantly smaller and sparser in areas where hunting with dogs was prevalent than in areas where hunting with dogs was not, that hunter success with dogs was greater than hunter success without dogs, and that hunting with dogs resulted in a higher crippling rate than hunting without dogs. Accordingly, the department’s 1990 rulemaking was based on the department’s statutory duty to prevent the depletion of deer populations and to provide for the most equitable and reasonable privilege to hunt (Parks and Wildlife Code, §61.055).

In 2000, Wildlife Division and Law Enforcement Division personnel determined that the practice of using dogs to hunt deer had declined to the point of being nonexistent in Bowie, Camp, Fannin, Franklin, Lamar, Morris, Red River, Rockwall, Titus, and Wood counties. In 2001, the department removed those counties from the list of counties where the use of dogs was prohibited to trail wounded deer. In a rulemaking earlier this year, the department also removed Hunt and Washington counties.

However, the problem remains endemic in 22 counties in East Texas, prompting the introduction and passage of House Bill 1959.

Under the terms of H.B. 1959, a person who violates the provisions of Parks and Wildlife Code, §62.0065, or a rule adopted under the authority of Parks and Wildlife Code, §62.0065, commits a Class A misdemeanor. Such violations are currently a Class C misdemeanor. Additionally, if a person has been previously convicted of a violation of Parks and Wildlife Code, §§62.003, 62.004, 62.005, 62.0065, or 62.011(c), a violation of Parks and Wildlife Code, §62.0065, or a rule adopted under the authority of Parks and Wildlife Code, §62.0065, is a state jail felony.

The amendment to §65.19 would prohibit the possession of a shotgun and shotgun slugs or buckshot by any person in Angelina, Hardin, Harris, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Newton, Orange, Panola, Polk, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, and Walker counties while that person is in the field on the property of another during an open deer season and in actual or constructive possession of a dog. The amendment is necessary to curtail and, if possible, stop the practice of hunting deer with dogs. The amendment also defines the terms ‘actual possession,’ and ‘constructive possession’ for the sake of clarity.


2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.


3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of the state’s wildlife resources (deer) from depletion, and to provide for the most equitable and reasonable privilege to hunt deer.

(B) There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.


4. Request for Public Comment.

Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).


5. Statutory Authority.

The amendments is proposed under Parks and Wildlife Code, §62.0065, as added by House Bill 1959, 79th Texas Legislature, Regular Session, which authorizes the commission to prescribe the type of firearm that may be possessed during an open deer season by a person who is in actual or constructive possession of a dog while in the field on another person's land or property in Angelina, Hardin, Harris, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Newton, Orange, Panola, Polk, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, or Walker counties; Parks and Wildlife Code, §61.052, which requires the commission to regulate the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in or from the places covered by that chapter; and §61.055, which requires the commission to amend or revoke its proclamations to prevent depletion or waste and to provide to the people the most equitable and reasonable privilege to hunt game animals or game birds or catch aquatic animal life if the commission finds that there is a danger of depletion or waste.

The proposed amendment affects Parks and Wildlife Code, Chapters 61 and 62.


§65.19. Hunting Deer with Dogs.

(a)For the purposes of this section:

(1) ‘actual possession of a dog’ means the physical control of a dog;

(2) ‘constructive possession of a dog’ means having the power and intention to have and control a dog but without direct control of the dog, the actual presence of physical restraint upon the dog, or the actual presence of the dog at exactly the same place as the person having the dog.

(b)[(a)] It is unlawful to use a dog or dogs in hunting, pursuing, or taking deer in all counties.

(c)[(b)] It is lawful to use not more than two dogs in trailing a wounded deer in all counties, except in Angelina, Hardin, Harris, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Newton, Orange, Panola, Polk, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, and Walker counties, where dogs shall not be used to trail wounded deer.

(d) In Angelina, Hardin, Harris, Harrison, Houston, Jasper, Jefferson, Liberty, Montgomery, Nacogdoches, Newton, Orange, Panola, Polk, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, and Walker counties, it is an offense for any person, during an open deer season, to be in the field on property belonging to another person while:

(1) in possession of a shotgun and buckshot or a slug; and

(2) in actual or constructive possession of a dog or dogs.

(3) The penalties for a violation of this section are prescribed by Parks and Wildlife Code, §62.013.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


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