Commission Agenda Item No. 5
Presenter: Stormy King
Action
Possession of Resident Licenses Rules
Recommended Adoption of Proposed Changes
August 27, 2020
I. Executive Summary: With this item, the staff seeks adoption of a proposed amendment to regulations governing the determination of residency status for purposes of obtaining hunting and fishing licenses. The amendment would make it an offense for a nonresident to possess a resident hunting or fishing license.
II. Discussion: Under Texas Parks and Wildlife Code section 42.005, no nonresident in this state may hunt any bird or animal in this state without having acquired the appropriate license, while section 42.006 authorizes the Texas Parks and Wildlife Commission (Commission) to prescribe by rule the requirements relating to possession of a license issued under chapter 42. Similarly, Texas Parks and Wildlife Code section 46.001 provides that no person may fish in the public water of this state unless that person has obtained the appropriate fishing license, and it provides the Commission authority to prescribe by rule the requirements relating to the possession of licenses issued under the authority of chapter 46.
Although current rules at 31 Texas Administrative Code chapter 55, subchapter A, provide for the various methods by which residency in Texas may be demonstrated for purposes of purchasing a resident hunting or fishing license and provide generally for the criminal prosecution of persons who obtain a resident license unlawfully, there is no provision that makes it a specific criminal offense for a nonresident to possess a resident license (i.e., to possess a license for which the person is not eligible). The proposed amendment is intended to provide a mechanism for ensuring that only bona fide Texas residents are able to possess a resident hunting or fishing license. The proposed amendment also provides that a person who provides electronic proof of licensure is considered to be in possession of the license purported to be held.
The proposed rules appeared in the July 17, 2020, issue of the Texas Register (45 TexReg 4948). A summary of public comment on the proposed rules will be presented at the time of the hearing.
III. Recommendation: The staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts an amendment to §55.1, concerning Proof of Residency, with changes as necessary to the proposed text as published in the July 17, 2020 issue of the Texas Register (45 TexReg 4948).”
Attachment – 1
Commission Agenda Item No. 5
Exhibit A
PROOF OF RESIDENCY RULES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (the department) proposes an amendment to §55.1, concerning Proof of Residency. The proposed amendment would make it a criminal offense for a person who is not a resident of Texas to possess a license in the person’s name the purchase of which is limited to Texas residents.
Under Parks and Wildlife Code, §42.005, no nonresident in this state may hunt any bird or animal in this state without having acquired the appropriate license, while §42.006 of the code authorizes the commission to prescribe by rule the requirements relating to possession of a license issued under Chapter 42. Similarly, Parks and Wildlife Code, §46.001, provides that no person may fish in the public water of this state unless that person has obtained the appropriate fishing license and provides authority to the commission to prescribe by rule the requirements relating to the possession of licenses issued under the authority of Chapter 46.
Although current rules at 31 TAC Chapter 55, Subchapter A, provide for the various methods by which residency in Texas may be demonstrated for purposes of purchasing a resident hunting or fishing license and provide generally for the criminal prosecution of persons who obtain a resident license unlawfully, there is no provision that makes it a specific criminal offense for a nonresident to possess a resident license (i.e., to possess a license for which the person is not eligible). Texas is a member of the Interstate Wildlife Violator Compact, an interstate agreement that allows state fish and wildlife agencies to share information regarding fishing, hunting, and trapping violations for purposes of suspending or revoking license privileges of violators in member states. The department has encountered situations in which the absence of a specific violation has frustrated the department’s ability to identify unscrupulous persons who claim residency in more than one state for purposes of obtaining hunting and/or fishing licenses, which reciprocally hampers investigations in other states when the residency status of a violator claiming Texas residency cannot be definitively established for purposes of enforcement actions in the state where the violation occurred. Additionally, department law enforcement personnel have encountered situations in the field in which persons hunting or fishing under a resident license that is subsequently proven to have been obtained under false pretenses cannot be prosecuted. The proposed amendment is intended to provide a mechanism for ensuring that only bona fide Texas residents are able to possess a resident hunting or fishing license. The proposed amendment also provides that a person who provides electronic proof of licensure is considered to be in possession of the license purported to be held.
2. Fiscal Note.
Kevin Davis, Chief of Staff for the Law Enforcement Division, 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 administering or enforcing the rule.
3. Public Benefit/Cost Note.
Mr. Davis also has determined that for each of the first five years that 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 ability of the department to discourage the purchase of resident hunting and fishing licenses by persons who are not Texas residents.
There will be no adverse economic effects on persons required to comply with the rule as proposed.
(B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department has determined that no small businesses, microbusiness, or rural communities will be affected by the proposed rules. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.
(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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
(E) 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.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:
(1) not create a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create a new regulation, but clarify an existing statutory prohibition regarding who is eligible to purchase a resident hunting or fishing license;
(6) not repeal, expand, or limit an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposal may be submitted to Chief Kevin Davis (512) 389-4846, e-mail: kevin.davis@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendment is proposed under the authority of Parks and Wildlife Code, §42.006, which authorizes the commission to prescribe by rule the requirements relating to possession of a license issued under Chapter 42, and §46.001 which authorizes the commission to prescribe by rule the requirements relating to the possession of licenses issued under the authority of Chapter 46.
The proposed repeal affects Parks and Wildlife Code, Chapters 42 and 46.
6. Rule Text.
55.1. Proof of Residency.
(a) The requirements of this section are in addition to any requirements of Parks and Wildlife Code, Chapters 42 and 46.
(1) – (8) (No change.)
(b) It is an offense for any person who does not meet the residency requirements of this section to possess a license in that person’s name that is required by law for conduct governed by Parks and Wildlife Code, Chapter 42 or Chapter 46 if the acquisition and use of the license is restricted by law to Texas residents.
(c) For purposes of this section, a person who utilizes the provisions of 53.2(g) of this title (relating to License Issuance Procedures, Fees, Possession, and Exemption Rules) to satisfy proof of licensure requirements is considered to be in possession of the license the person purports to have obtained.
This agency hereby certifies the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on