Texas Parks and Wildlife Commission
Special Called Meeting

July 22, 2009

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED that heretofore on the 22nd day of July 2009, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission, in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters, Austin, Texas, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION

THE TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAIRMAN HOLT: The first order of business is to call this meeting to order July 22, 2009 — this is the Special Called Commission Meeting, Mr. Smith I believe you have a statement to make.

MR. SMITH: I do, thank you Mr. Chairman. A public notice of this meeting containing all items on the proposed agenda has been filed in the Office of the Secretary of State as required by Chapter 551, Government Code, referred to as the Open Meetings Act. I would like for this fact to be noted in the official record of this meeting.

We are in formal Commission Meeting mode now; I think we can count the number of non Parks and Wildlife employees on three, maybe four fingers that are in our audience. So I’m going to dispense with my normal discussion of rules of conduct as I don’t think Mike Leggett or Kirby Brown needs to be told to turn off their Blackberries. I think they know the drill. The only thing I will say, for anybody who wants to speak on a particular matter, make sure that you sign-up outside and you will have an opportunity when called to come before the Commission and speak your perspective for or against a particular item. And so with that, welcome, delighted you’re here with us on this July day. If you bring rain, you’re always welcome here, so come back. Thanks Chairman.

CHAIRMAN HOLT: I’m glad the air conditioning is working. Thank you Mr. Smith. Agenda Item No. 2 — Action — Lawful Means Rule Amendments — Crossbow and Laser Sighting Regulations — Implementation of House Bill 968 and House Bill 1805, 81st Texas Legislature. Major David Sinclair, please make your presentation.

MAJOR SINCLAIR: Good morning, Mr. Chairman and Members, I’m Major David Sinclair, Chief of Fisheries and Wildlife Enforcement. As you know, the session just recently ended and there were a number of bills that were enacted and a couple of those need action by you today. One of those is the crossbow bill the other is the laser sight for hunters with disabilities. Just for your information, the Government Code, Chapter 2001 allows the Commission to adopt regulations before legislation is actually effective. The Governor signed these bills and the bills don’t actually go into effect until September 1st, but you can go ahead and take action on those today, if you so desire.

Just to bring Commissioner Hughes and Commissioner Morian up to speed on the regulatory process, it’s actually a nonstop process. We’re always working on regulations. As a matter of fact, we’re working on things right now for next year’s hunting season. But the formal action starts in November, staff will come before you and talk about possible changes for the next hunting and fishing year. And then at the January meeting, staff will make those proposals to the Commission and that goes to the Texas Register for the 30 day public comment period. Then at the March meeting, you have the opportunity to adopt those regulations that go into effect after September 1st. Now being here today, as you can see, is a little bit out of the norm, it’s always a November, January and March process, so we have these two special items we’re here to talk to you about today.

The first one I’ll discuss is House Bill 968 by Chairman Homer, it relates to the use of crossbows for hunting deer and turkey. The bill amended the stamp requirement for archery-only seasons for deer and turkey. If you will recall, for years now we’ve had a special October archery season where only lawful archery equipment and crossbows could be used. And for crossbow hunters, you had to have an upper limb disability to use a crossbow during that period of time. So this bill removes that upper limb disability which allows now for the Commission to adopt regulations for anyone can use the crossbow.

The House Bill 968 made it through the House, so when it got over to the Senate side, it was assigned to Senate Ag and Rural Affairs Committee which is chaired by Senator Estes. When the bill was laid out, Senator Estes and others on that committee wanted to carve out Grayson County. Basically the intent of this statute is to leave Grayson County just like it has been in the past. And that is that during that special October season, lawful archery which includes longbow, recurved and compound bow, and the crossbow upper limb disability would be in effect. During the general season then it would be the lawful archery, plus anyone could use the crossbow and that was clearly the intent of the legislature to do that. But with this committee substitute in a county that does not permit hunting with a firearm, a hunter may use a crossbow only if the hunter is a person with an upper limb disability and has a stamp. When we first got to looking at that, we were like everyone else and thought that it was going only to apply to the special October season, but it was, in fact there was some unintended consequences there because it’s going to apply to the general season in Grayson County which would restrict hunters with upper-limb disabilities. So we’ve looked at the statute very closely and we’ve been working with Senator Estes’ office, we’ve been working with staff here, general counsel and we’ve determined that this particular committee substitute does not address species specific. So it does not only apply to deer, but it applies to turkey and javelina. Those are the three species that are under the stamp law and the turkey does have a firearm season in the spring. So with that in mind, the statute or this committee substitute is actually moot, with regard to Grayson County and you as the Commission will be able to adopt regulations to fulfill the intent of the statute.

Again, currently only a person having an upper limb disability may use a crossbow to hunt deer and turkey during an archery-only season and this was actually adopted by the Commission last March. So that’s why we’re here today to amend that to where anyone can use the crossbow. Staff proposes first off that crossbow, except for Grayson County crossbows are lawful during archer-only season and any general open season. Staff proposes, and this is the exception, in Grayson County no person may use a crossbow to hunt deer during archery-only October 3-November 6 unless the person has an upper limb disability and has in their immediate possession a physician’s statement that certifies the extent of their disability. And also in Grayson County, any person may hunt deer by means of crossbow during the general open season which is November 7-January 3 and the requirements of Clause I of this subparagraph do not apply. Any questions about that?

COMMISSIONER HOLT: The only person beside you Major that understands this probably is Ralph.

MAJOR SINCLAIR: It is a very complicated –

COMMISSIONER HOLT: It is complicated, I can see what the unintended consequence creates a problem, doesn’t it?

COMMISSIONER DUGGINS: Am I right that page 14 in the notebook has the proposed language in it?

MAJOR SINCLAIR: It was in the original language where we thought that we were going to be held to upper limb disability for both the special and the general, everything else should be correct. The language that is in your handout and is on the screen is basically what the new language will look like, that’s what you will be adopting.

COMMISSION HOLT: You might explain for our new commissioners why Grayson County is an exception to the other 253 counties.

MAJOR SINCLAIR: Grayson County for a number of years has been archery-only, may have been since the beginning of time. This last year there was a petition to allow firearms and the commission ended up leaving the county just like it is. Grayson County is in the district of Senator Estes and so he wanted it to remain just like it’s always been.

COMMISSIONER HOLT: But I didn’t realize, I guess when we as the commission were voting on keeping it the way it was. But there’s a spring rifle turkey season.

MAJOR SINCLAIR: Shotgun

COMMISSIONER HOLT: Shotgun, I don’t think I remembered that or maybe I never even knew it.

MR. SMITH: David, I want to make sure that Commissioner Duggins question is answered, what he is asking about on page 14 in the book; that language is what we are correcting here with the new language, right? Okay, Robert’s nodding his head affirmatively, so.

MAJOR SINCLAIR: That is correct.

COMMISSIONER DUGGINS: So if I’m understanding it, what’s on the screen we’re saying that in Grayson County during archery season, you may only use a crossbow if you have a certified disability. But we will permit you to use a crossbow during regular season without the disability?

MAJOR SINCLAIR: That is correct, and that’s the way it’s been in the past.

MR. SMITH: When the bill was written there was an interpretation that actually the right to use a crossbow during the general season might have actually been taken away from all hunters except those who had an upper limb disability. That was not the intent of the legislation to take away that. But that was the initial interpretation of that and so that’s what you see reflected in your book. What David has gone back and done a lot of work on this trying to, working with Ann Bright and others, to make sure and Clayton that the intent of the legislation is actually fulfilled and there is not a preexisting right taken away and that’s what he was trying to explain there. So the language that you’re looking at there is not correct on page 14.

COMMISSION DUGGINS: Have you run this proposal by Senator Estes?

MAJOR SINCLAIR: Yes, I’ve been communicating with Ren Nance who is the committee clerk and I sent all this information to her yesterday. I talked to her on the phone yesterday morning and she was okay with it. I’ve not heard anything different since that day.

MR. SMITH: Is everybody okay with that or does anybody need some clarification. It is a little confusing and I just want to make sure everybody understands this, what you’re approving.

COMMISSIONER HUGHES: I think this is all up in Duggins area, these people — that’s how they think up there.

MAJOR SINCLAIR: I don’t want to belabor this, but the statute is all tied to the stamp requirement. That’s what it’s all — the Commission for years has had the authority to say, anybody can use the crossbow, they could have done that in the past. It’s been tied to that stamp requirement.

COMMISSIONER DUGGINS: My only observation is that this first for the recurve it really doesn’t specify what the disability has to be.

MAJOR SINCLAIR: The disability is, it’s in regulation, it’s currently there. There’s no change to that and it’s the total loss of the use of a hand, finger or arm that prevents you from using a recurve, compound or longbow. That’s currently, there’s no change to that, it’s in current regulation.

COMMISSION DUGGINS: That’s already in regulation?

MAJOR SINCLAIR: That’s correct.

COMMISSIONER HOLT: You don’t have a real issue with that do you, relative to not becoming a law enforcement nightmare or something?

MAJOR SINCLAIR: No sir.

COMMISSIONER DUGGINS: I don’t suppose there’s anything we can do about it, but any concern about the minimum weight on a crossbow or the type of arrow that should be used? I’m just thinking about wounding issues.

MAJOR SINCLAIR: It is, we cannot change the requirement, its 125 pound on the crossbow and that’s still in there. There’s not the issue about you know a young person or an older person having to cock that or draw it back to use it. Crossbows these days have strength, even electric devices that cock the bow for you. You don’t have that concern about the weight like we did with the other conventional equipment.

COMMISSIONER DUGGINS: But the regulations do specify a minimum weight (inaudible)

MAJOR SINCLAIR: 125 pounds on the crossbow, there’s a minimum length of 25 inches has to be on the stock. The Commission I guess originally didn’t want people out there with a handheld crossbow, so it has to be on a 25 minimum, 25 inch stock to use. Has to have a mechanical safety on it. And those are all in regulation now.

COMMISSION DUGGINS: How do we propose, if this passes, how do we propose to issue notice or publish that and reaffirm things such as what the position statement needs to say and what the type of equipment needs to be?

MAJOR SINCLAIR: I believe we’ve anticipated and I believe we have something in the Outdoor Annual, correct me if I’m wrong, but I think we mention there may be a change, we need to watch. We’ll be using the magazine, we’ll be using the Internet, the web site, so we’ll do everything we can to let people know. We can certainly publish notice in Grayson newspapers.

COMMISSIONER DUGGINS: I just think it’s important on the web site that a link be easy to find that says, if this passes, this is now permitted, but you’re subject to and you should read the following and emphasize the equipment issue for example. I think that’s real important so people just don’t get the idea they can pull any old crossbow out and go hunting. Thank you.

MAJOR SINCLAIR: Thank you.

COMMISSIONER HOLT: Any other questions?

MAJOR SINCLAIR: Okay, the other is the laser sight. House Bill 1805 authored by Chairman Kuempel and it relates to the use of laser sighting devices for hunters who have a physical disability. This, I believe, the chairman was approached by the Texas State Rifle Association, it was originally intended, the thought was just for military with disabilities. Chairman Kuempel decided that there probably were some other groups out there that could benefit by the use of the laser sight, not being able to use the regular sighting device on a firearm. So he opened it up to anyone with a physical disability and that will be defined and I’ll discuss that in just a minute.

This bill is with exception of the disability it’s almost identical to the bill that was passed during the 80th Session related to using a laser sight if you’re blind. The Commission has already adopted those regulations; we’ve had those since the 80th Session and have not had any problems that I’m aware of out there in the field. As far as enforcement, its working okay. The statute defines the physical disability that means a person with a documented permanent physical disability that renders the person incapable of using a traditional firearm sighting device.

MAJOR SINCLAIR: Staff proposes a person with a physical disability may use a laser sighting device to hunt game animals and game birds during lawful hunting hours and open seasons provided the person is assisted by a person who is not a person with a physical disability or legally blind, has a hunting license and is at least 13 years of age. In your handout, you will note that I’ve underlined game animals and game birds, that was inadvertently left out of the proposal that went to the Register, but it is identical to the laser sight for blind and we’d like to include that as an amendment to our proposal.

Also proposing a physician or optometrist statement certifying the extent of the disability is required while hunting. Also all provisions concerning hunter education requirements apply to persons hunting with a laser sighting device. This not only includes the person hunting but the person assisting.

Public comment and these two proposals were all one item in the Register so I’m giving you a total comment number here; 152 agreed; 211 disagreed with the two proposals. On the crossbow, a variety of opposition; the purity of archery as a sport, there were 71 of those; a lot of people are traditionalists and they don’t think a crossbow is archery equipment. Crossbow should be restricted to disabled only; 30 — so on and so forth; concerned that it would increase poaching; there were 4 comments, to my knowledge that’s never been a problem. Public comment on the laser sighting, opposition, blind people shouldn’t be hunting; there were two. Laser sights should not be lawful; there were two of those.

A recommendation of staff, recommends the Texas Parks and Wildlife Commission adopt an amendment to Section 65.11 concerning lawful means with changes as necessary to proposed text as published in the June 9, 2009 Texas Register. With that I would be glad to answer any questions.

COMMISSIONER HOLT: Any questions, yes sir?

COMMISSIONER DUGGINS: Do we define traditional firearm sighting device?

MAJOR SINCLAIR: We do not. That was in the actual statute. Keep in mind that all these proposals are right out of statute, but we’re placing them in the Statewide Hunting and Fishing Proclamation because you have the authority to adopt means, methods, seasons, bag limits. We could certainly define that, I think.

MR. SMITH: Has there been any confusion over that in the past David?

MAJOR SINCLAIR: Well that’s new language to this statute; it was not in the other for the blind hunter. It was not –

MR. SMITH: Any thoughts on that David?

MAJOR SINCLAIR: We could certainly come up with a definition; I believe we could do that. Robert’s not shaking his head yes or no.

COMMISSIONER HOLT: He won’t commit yet, right? Because that can create—

COMMISSION DUGGINS: Pretty vague, it can be gained unless there’s a little more definiteness to it than my view.

MAJOR SINCLAIR: Traditional to me would be you know, telescopic sight, open sight, a peep sight; just those traditional standard sighting devices. I’ve tried to envision you know what this might be; someone with a disability could hold a rifle here, but they couldn’t bend their neck or head, they couldn’t tip their head over or pull the firearm, the stock up to their cheek to look through a sight with a disability like that is what I had envisioned.

COMMISSIONER HOLT: On the other side though, once you get in and start to define things you’ve got to continue defining things (inaudible), both ways.

COMMISSIONER DUGGINS: Does the June 19th publication in the Register include the phrase “game animals and game birds” that you said was left out?

MAJOR SINCLAIR: It does not.

COMMISSIONER DUGGINS: Well don’t you need to change that request to –

MAJOR SINCLAIR: I don’t think that it’s a substantive change, I’ll defer to general counsel.

MS. BRIGHT: Commissioners, I’m Ann Bright, general counsel. There’s a body of law involving changes that can be made to a regulation that has been proposed at the time of adoption and basically if it’s a logical outgrowth, if it’s something that could be reasonably anticipated, is not going to affect new groups; then it can be changed without having to go back and go through the publication process over again. This one, both of these actually, I think are probably both a logical outgrowth of the original proposals.

COMMISSIONER DUGGINS: I just wanted your confirmation.

MS. BRIGHT: Yes, sir. David’s good about talking to me about these sorts of things.

COMMISSIONER HOLT: Any other questions or comments from anybody? Thank you sir.

MAJOR SINCLAIR: Thank you.

COMMISSIONER HOLT: I’ll just ask staff, are there any other comments from anybody? Okay, I think we can vote on this now, yes, I need a motion and then a second. First Commissioner Martin, is somebody scribbling this, and second by Commissioner Morian. All in favor?

COMMISSIONER DUGGINS: Before we vote Mr. Chairman, is this going to include that we do try to formulate a definition or not in the motion? That’s all I’m asking.

MR. SMITH: Well I think it was left unclear for us. My sense is that it would probably be pretty clear if we sense a problem out there, why don’t we come back to you. I think there maybe some unintended consequences of trying to define it just too rigidly. I haven’t heard law enforcement express a lot of concerns over that, but why don’t we watch it and if there’s some issue we come back, that would be my recommendation. If you feel strongly about it though, we can certainly work towards a definition; we can do it however you like.

COMMISSIONER DUGGINS: Give me just a second to think about this and look at this language, please.

COMMISSIONER MORIAN: Traditional methods on (inaudible) sights and telescopic sights to me that seems pretty clear.

MR. SMITH: Pretty straightforward. David do you have any other –

COMMISSION MORIAN: But I maybe missing something.

COMMISSIONER HOLT: (Inaudible) until we get some comments.

COMMISSIONER DUGGINS: I think I’m okay with it, as I say it can mean different things to different people. I’m always trying not to leave any gaps.

MR. SMITH: Sure, no I appreciate that.

COMMISSIONER HOLT: On one hand I understand that and sometimes vagueness can be okay too.

MS. BRIGHT: I’m Ann Bright again, general counsel. One other issue that Todd George, one of our attorneys reminded me of is that because the person actually has to have a doctor’s note that’s going to be another filter that will hopefully prevent some folks from gaming the system.

COMMISSIONER HUGHES: Does the disabled hunter carry the doctor’s note with them and that should be on their person when they’re hunting?

COMMISSIONER HOLT: That is a requirement, yes.

MR. SMITH: They will have to be able to produce that when asked.

COMMISSIONER HOLT: We can do whatever you want, you tell us.

COMMISSIONER DUGGINS: Oh no, I’m okay with this.

COMMISSIONER HOLT: We have motions, all in favor aye? Any nays? All in favor? Carole you got it, great, thank you? Thank you all.

Agenda Item No. 3 — Action — Adoption of a supplemental budget HB 4586, 81st Texas Legislature, Mr. Mike Jensen.

MR. JENSEN: Good afternoon Commissioners, for the record my name is Mike Jensen and I’ll try to be as brief as possible. We discussed this in the subcommittee, the House supplemental appropriations bill that was House Bill 4586 did provide an additional $16 million to the Commission. $12 million related to national disasters which is Hurricane Ike related, which are to repair damages to Galveston Island State Park. There’s another $2 million in the supplemental bill that was related to repairs at Sea Rim State Park and there was $1 million that was related to disaster recovery for the information technology costs that are associated with the statewide contract between IBM and Department of Information Resources and then there’s an additional $1 million that’s related to the pass-through of monies from the legislature to Parks and Wildlife to the Texas State Railroad Authority. The Governor had actually signed that bill on June 19th and all those monies have a life; two years from that date of signature and I think Gene McCarty discussed that in the subcommittee. Basically, at this point in time, staff recommends that you consider and adopt the proposed motion before you.

COMMISSIONER DUGGINS: I so move.

COMMISSION HUGHES: Second.

COMMISSIONER HOLT: Okay; Commissioner Duggins and second by Commissioner Hughes. Any questions or comments. (Inaudible) I think we would like to have this money for usage. All in favor, aye? Any negatives, any nays, no. That moved quickly, good presentation, thank you.

Mr. Smith, this Commission has completed its business, I declare us adjourned. Thank you all very much.

MR. SMITH: Thank you Mr. Chairman, members of the Commission, thanks for coming in today, we appreciate everyone of you.

[Meeting adjourned at 12:15 p.m.]

Transcribed by:
Carole Hemby
Executive Office
Texas Parks and Wildlife Department
4200 Smith School Road
Austin, TX 78744
512-389-4804
July 22, 2009

In official recognition hereof, we hereby affix our signatures as approved this 22nd day of July 2009.

___________________________________
Peter M. Holt, Chairman

___________________________________
T. Dan Friedkin, Vice-Chairman

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Mark E. Bivins, Member

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Ralph H. Duggins, Member

___________________________________
Antonio Falcon, M.D., Member

___________________________________
Karen J. Hixon, Member

___________________________________
Dan Allen Hughes, Jr., Member

___________________________________
Margaret Martin, Member

___________________________________
S. Reed Morian, Member


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