text:
Sec. 12.001.  GENERAL DUTIES.  (a)  The department shall administer the laws relating to game, fish, oysters, and marine life, as set out in this code.
(5)  manage the propagation and distribution of birds and game in state reservations.
Sec. 12.0011.  RESOURCE PROTECTION.  (a)  The department is the state agency with primary responsibility for protecting the state's fish and wildlife resources.
(4)  providing recommendations to the Texas Department of Water Resources on scheduling of in-stream flows and freshwater inflows to Texas estuaries for the management of fish and wildlife resources.
(b-1)  Recommendations and information submitted by the department under Subsection (b) in response to a request for comments from the Texas Department of Transportation must be submitted not later than the 45th day after the date the department receives the request.
(3)  as applicable, any reason the agency disagreed with or did not act on or incorporate the recommendation or comment.
(2)  is public information under Chapter 552, Government Code.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 23, eff. Sept. 1, 1985.
Acts 2009, 81st Leg., R.S., Ch. 952 (H.B. 3391), Sec. 7, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 943 (H.B. 630), Sec. 4, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1060 (S.B. 548), Sec. 4, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1345 (S.B. 1420), Sec. 1(a), eff. September 1, 2011.
(6)  all collections and disbursements of the department.
(b)  The department shall keep an account with each person, firm, or corporation holding certificates for the location of private oyster beds, showing the amounts received as rents.
Sec. 12.004.  LIST OF FEES AND FINES.  (a)  Repealed by Acts 1997, 75th Leg., ch. 1256, Sec. 130, eff. Sept. 1, 1997.
(b)  The department shall file at the end of each calendar month a written report with the comptroller showing fines, licenses, and other fees collected, their disposition, and any other necessary information.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 130, eff. Sept. 1, 1997.
Sec. 12.005.  FUNDS IN LIEU OF TAXES.  (a)  The department shall expend funds to counties and school districts for assessments in lieu of property taxes on wildlife management areas purchased from federal funds or grants authorized by the Pittman-Robertson Act  or Dingell-Johnson Act.
(b)  No general revenue funds may be expended in lieu of taxes for wildlife management areas;  however, special funds may be expended for this purpose provided reimbursement or matching from the federal government is available at a federal ratio of two to one or better.
Sec. 12.006.  PUBLICATIONS ON WILDLIFE VALUES AND MANAGEMENT.  (a)  The department may provide or sell information, including books, magazines, photographs, prints, and bulletins, to the public about wildlife values and management.
(b)  The department may receive royalties on department-owned materials that are sold or supplied to others by the department for publication.
(c)  The department may enter into contractual agreements for publication of information concerning wildlife values and management.
(d)  Money received under this section shall be deposited in the State Treasury to the credit of the fund or account from which expenses for the publication were paid.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 24, eff. Sept. 1, 1985;  Acts 1993, 73rd Leg., ch. 679, Sec. 9, eff. Sept. 1, 1993.
Sec. 12.007.  VOLUNTARY CONTRIBUTION TO FUND FOR VETERANS' ASSISTANCE. (a) In this section, "veterans fund" means the fund for veterans' assistance established under Section 434.017, Government Code.
(b)  When a person applies for a hunting or fishing license of any type, including a combination hunting and fishing license, under this code, the person may make a voluntary contribution of $1, $5, $10, or $20 to the veterans fund.
(2)  provide an opportunity for the person to contribute $1, $5, $10, or $20 to the veterans fund during the application process for a hunting or fishing license on the department's Internet website.
(d)  The department shall send any contribution made under this section to the comptroller for deposit in the state treasury to the credit of the fund for veterans' assistance not later than the 14th day of each month. Before sending the money to the veterans fund, the department may deduct money equal to the amount of reasonable expenses for developing and administering this section.
Added by Acts 2015, 84th Leg., R.S., Ch. 160 (H.B. 1584), Sec. 2, eff. September 1, 2015.
Sec. 12.008.  LEASING OF GRAZING OR FARMING RIGHTS:  SALE OF PRODUCTS.  (a)  The department may lease grazing or farming rights on any land acquired by, and for the use of, the department as game preserves, game sanctuaries, and game management areas.  The department may harvest and sell, or sell in place, any timber, hay, or other product grown on land of the department when the product is found to be in excess of wildlife management needs.
(b)  The department may agree to accept consideration in lieu of money as part or full payment for a sale or lease under this section.  The consideration in lieu of money must be materials, supplies, or services that are needed for wildlife management projects on any game management area administered by the department.  The materials, supplies, or services accepted in lieu of money may be assigned a value no greater than that which the department would have been authorized to pay for them in a bona fide purchase.
(c)  The comptroller shall execute any sale of products under this section under the general law governing the sale of state property; however, the department shall determine the quantity of products to be offered for sale and the consideration in lieu of money to be received under the sale.  The department may lease grazing or farming rights under this section.  In leasing the rights, the department must follow a competitive bidding procedure.
(d)  All money derived from a sale or lease under this section shall be deposited in the state treasury to the credit of the game, fish, and water safety account.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1979, 66th Leg., p. 549, ch. 260, art. 3, Sec. 1, eff. Sept. 1, 1979;  Acts 1983, 68th Leg., p. 2885, ch. 491, Sec. 1, eff. Aug. 29, 1983;  Acts 1991, 72nd Leg., ch. 475, Sec. 1, 2, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 679, Sec. 10, eff. Sept. 1, 1993.
Acts 2007, 80th Leg., R.S., Ch. 937 (H.B. 3560), Sec. 1.106, eff. September 1, 2007.
Sec. 12.010.  NUISANCE OR NOXIOUS AQUATIC VEGETATION PROGRAM.  (a)  The department may implement a program to control or eradicate nuisance aquatic vegetation, including hydrilla and giant sylvania, from public water in this state.
(b)  To implement the program under this section, the department may use money from unclaimed refunds of the tax on fuel used in motorboats appropriated to the department under Section 162.502(c), Tax Code.
(c)  The department may contract with a person not employed by the department or use the services of department personnel for the control or eradication of nuisance or noxious vegetation in the water of this state.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 8, eff. Sept. 1, 1997.
Acts 2007, 80th Leg., R.S., Ch. 1159 (H.B. 12), Sec. 19, eff. June 15, 2007.
Sec. 12.011.  TEACHING EQUIPMENT.  On request of a state-supported institution of higher education engaged in teaching and research related to marine science and oceanography, the department may transfer to the institution fish nets, seines, motors, boats, and other marine equipment confiscated under the authority of the game and fish laws to be used in the teaching and research programs of the institution.
Sec. 12.012.  RECREATIONAL WATER SAFETY VIDEO.  (a)  The department shall produce a video suitable for use with high school students on recreational water safety.  The video must include instruction on safe participation in recreational activities in, on, or around the lakes, rivers, and coastal waters of this state.
(b)  The department shall notify the Texas Education Agency in writing when the recreational water safety video is available for the agency's use.
(c)  The department may edit the content of the recreational water safety video to produce a boater education video that complies with federal standards for boating education courses published by the National Association of State Boating Law Administrators.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1275 (H.B. 673), Sec. 1, eff. June 17, 2011.
Sec. 12.013.  POWER TO TAKE WILDLIFE; FISH.  (a)  An employee of the department acting within the scope of the employee's authority may possess, take, transport, release, and manage any of the wildlife and fish in this state for investigation, propagation, distribution, education, disease diagnosis or prevention, or scientific purposes.
(b)  A person who is not an employee of the department who is participating under the supervision of a department employee in a program or event designated by the director as being conducted for research or species propagation and as exempt from the normally applicable size or bag limits may possess, take, transport, or release any fish in this state to accomplish the intent of the program or event.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 9, eff. Sept. 1, 1997.
Acts 2005, 79th Leg., Ch. 992 (H.B. 2026), Sec. 2, eff. June 18, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1159 (H.B. 12), Sec. 20, eff. September 1, 2007.
Sec. 12.015.  REGULATION OF FISH, SHELLFISH, AND AQUATIC PLANTS.  The department shall regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state.
Added by Acts 1975, 64th Leg., p. 1219, ch. 456, Sec. 17, eff. Sept. 1, 1975.  Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 110, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 637, Sec. 7, eff. Sept. 1, 1989.
Sec. 12.017.  DAMAGING MARKERS.  (a)  No person may damage, deface, destroy, or remove, tie up a boat to, or in any way render inoperative or ineffective a marker, buoy, light or sound signal, radar reflector, or daymark or any part of these devices, including the attachment intended to hold the device in place.
(b)  The fact that a device or part of a device specified in Subsection (a) of this section may have been established by the state in water adjacent to but outside the territorial water of the state is not a defense against a prosecution for damaging state property.
Added by Acts 1977, 65th Leg., p. 1126, ch. 421, Sec. 2, eff. Aug. 29, 1977.  Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 2, eff. Sept. 1, 1985.
Sec. 12.018.  ACCEPTANCE AND DISPOSITION OF GIFTS.  (a)  The department may accept a gift or donation from any person for the purpose of funding any program or function of the department relating to wildlife conservation.
(b)  A gift or donation other than money accepted under this section may be auctioned off or used as a prize in conjunction with a fund-raising program or event.  All proceeds of the auction or fund-raising program or event shall be used by the department for the purposes described by this section.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 25, eff. Sept. 1, 1985.
Sec. 12.019.  PENALTIES.  (a)  Except as provided by Subsection (b) of this section, a person who violates Section 12.015, 12.017, or 12.504 of this code or a regulation adopted under Section 12.015 of this code commits an offense that is a Class C Parks and Wildlife Code misdemeanor.
(b)  If it is shown at the trial of the defendant for a violation of Section 12.017 of this code that he has been convicted within five years before the trial date of a violation of that section, on conviction he shall be punished for a Class B Parks and Wildlife Code misdemeanor.
(c)  A person who violates Section 12.505 of this code commits an offense that is a Class A Parks and Wildlife Code misdemeanor.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 3, eff. Sept. 1, 1985.
Sec. 12.024.  WATER PERMIT RESPONSIBILITIES.  (a)  The Texas Department of Water Resources shall furnish to the department a copy of all permit applications to store, take, or divert water.
(b)  The department shall make recommendations to the Texas Department of Water Resources to protect fish and wildlife resources, including permit conditions, mitigation, and schedules of flow or releases.
(c)  The department shall be, on its request, a full party in any hearing on an application for a permit to store, take, or divert water.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 29, eff. Sept. 1, 1985.
Sec. 12.025.  TECHNICAL GUIDANCE TO LANDOWNERS.  (a)  The department may provide technical guidance to landowners who request information concerning fish, wildlife, nongame, and habitat management.
(2)  the priorities set under Section 11.105.
(c)  The department shall support landowner education programs and cooperate with appropriate state agencies.
(d)  The department shall provide notice of Section 12.0251 to a private landowner who requests technical assistance before entering the property to collect and record information about animal or plant life.
(e)  The commission by rule shall adopt policies, including written guidelines for a method for providing notice under Subsection (d) and for departmental entry onto privately owned land to collect information described by Section 12.0251(a).  The policies and guidelines must identify the maximum information that the department may maintain under Section 12.0251.
(f)  A review or update of a record or plan produced by the department under Section 12.0251 and maintained by the landowner or the landowner's agent may be requested by the landowner or the department.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 30, eff. Sept. 1, 1985.  Amended by Acts 1995, 74th Leg., ch. 519, Sec. 2, eff. Aug. 28, 1995;  Acts 2001, 77th Leg., ch. 968, Sec. 28, eff. Sept. 1, 2001.
(B)  is the subject of a recommendation report prepared by the department for the landowner.
(2)  the consent is in writing and is attached to the plan or recommendation report.
(c)  The department may release game census, harvest, habitat, or program information only if the information is summarized in a manner that prevents the identification of an individual or specific parcel of land and the landowner.
(d)  The department may prepare not more than one original record of the information collected by the department and incorporated into a wildlife management plan, and the record becomes the property of the landowner.  The department may retain one copy of the record.  The retained copy may not be disclosed except as provided by this section.
(e)  Except as provided by this subsection, the department shall send a copy of the information retained by the department relating to a landowner's property to the landowner and destroy the department's record of the information if the protected information status assigned by this section is revoked.  The department may retain a copy of the information if the landowner consents in writing.
(f)  In this section, a reference to the department includes a reference to an agent of the department.
(g)  This section does not apply to a parcel of land that is not privately owned.
Added by Acts 1995, 74th Leg., ch. 519, Sec. 3, eff. Aug. 28, 1995.  Amended by Acts 2001, 77th Leg., ch. 968, Sec. 29, eff. Sept. 1, 2001.
Sec. 12.026.  MULTIPLE USE OF LAND.  A tract of land purchased primarily for a purpose authorized by this code may be used for any authorized function of the department if the commission determines that multiple use is the best utilization of the land's resources.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 31, eff. Sept. 1, 1985.
Sec. 12.027.  ADOPTION OF EMERGENCY RULES.  If the commission or the executive director finds that there is an immediate danger to a species authorized to be regulated by the department, or that strict compliance with existing department rules would in any way prevent, hinder, or delay necessary action in coping with a disaster declared by the governor, the commission or the executive director may adopt emergency rules as provided by Chapter 2001, Government Code.
Added by Acts 1989, 71st Leg., ch. 924, Sec. 1, eff. Aug. 28, 1989.  Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1, 1995.
Acts 2009, 81st Leg., R.S., Ch. 952 (H.B. 3391), Sec. 8, eff. September 1, 2009.
(1)  "Aircraft" means a device, including an airplane, ultralight airplane, or helicopter, that can be used for flight in the air.
(D)  any aircraft or vessel used to commit a second or subsequent offense under Section 61.022, 62.003, 62.004, or 62.005.
(3)  "Vessel" means watercraft, including an attached motor, that can be used for transportation on water.
Added by Acts 1995, 74th Leg., ch. 966, Sec. 1, eff. Sept. 1, 1995.  Amended by Acts 1999, 76th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1999.
(1)  "Residence" means a person's principal or ordinary home or dwelling place.
(F)  hotel room, motel room, or room in a boardinghouse used during a hunting trip.
(3)  "Wildlife resource" means any animal, bird, reptile, amphibian, fish, or form of aquatic life or any part of an animal, bird, reptile, amphibian, fish, or form of aquatic life the hunting, catching, or possession of which is regulated by this code.
(4)  the contents of any container or receptacle that is commonly used to store or conceal a wildlife resource.
(c)  Except as provided by Subsection (d), a game warden or other peace officer commissioned by the department may inspect any wildlife resource that has been taken by a person and is in plain view of the game warden or other peace officer.
(C)  distinguishable from a shoulder, berm, or other area not intended for vehicular traffic.
Added by Acts 2003, 78th Leg., ch. 558, Sec. 1, eff. Sept. 1, 2003.
Sec. 12.103.  ENTERING LAND;  USE OF INFORMATION OBTAINED BY ENTRY;  CIVIL PENALTY.  (a)  To enforce the game and fish laws of the state and to conduct scientific investigations and research regarding wild game or fish, an authorized employee of the department may enter on any land or water where wild game or fish are known to range or stray.  No action may be sustained against an employee of the department to prevent his entering on land or water when acting in his official capacity as described by this subsection.
(C)  established and maintained by any other person.
(c)  Except as provided by Subsection (d), information collected under this section may only be reported or compiled in a manner that prevents the identification of an individual parcel or specific parcels of private property without the written consent of the landowner or the landowner's agent.
(d)  The department may collect and enter data as necessary relating to the occurrence or harvest of natural resources in public land or water.  The department may collect and report standardized annual wildlife survey information required by the Pitman-Robertson Wildlife Restoration Act (16 U.S.C. Section 669 et seq.).
(e)  The department is liable to a private landowner for a civil penalty in the amount of $1,000 for a violation of this section involving information collected by an employee of the department on the landowner's property.  A landowner may bring suit to collect the penalty in the county in which the land is located or the county in which the landowner resides.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1995, 74th Leg., ch. 521, Sec. 1, eff. Sept. 1, 1995.
Sec. 12.104.  RIGHT TO SEARCH AND INSPECT.  (a)  A game warden or other peace officer commissioned by the department may search a game bag, vehicle, vessel, or other receptacle if the game warden or peace officer has a reasonable, articulable suspicion that the game bag, vehicle, vessel, or receptacle contains a wildlife resource that has been unlawfully killed or taken.
(b)  A game warden or other peace officer commissioned by the department may inspect a wildlife resource or a part or product of a wildlife resource that is discovered during a search under Subsection (a) of this section.
(c)  In this section "wildlife resource" means an animal, bird, reptile, amphibian, fish, or other aquatic life the taking or possession of which is regulated in any manner by this code.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1991, 72nd Leg., ch. 261, Sec. 1, eff. Aug. 26, 1991.
Sec. 12.105.  SUITS.  (a)  The department may file complaints in the name of the State of Texas to recover fines and penalties for violations of the laws relating to game, birds, and fish.
(b)  The department may file a complaint and commence proceedings against an individual for violation of the laws relating to game, birds, and fish without the approval of the county attorney of the county in which the proceedings are brought.  The department is not required to furnish security for costs for proceedings under this subsection.
Sec. 12.106.  NOTICE TO APPEAR.  (a)  Any peace officer of this state or a political subdivision of this state or an authorized employee of the department who arrests a person for a violation of this code or a regulation of the commission adopted under this code may deliver to the alleged violator a written notice to appear before the justice court, county court, or another court having jurisdiction of the offense not later than 15 days after the date of the alleged violation.
(b)  On signing the written notice to appear and thereby promising to appear as provided in the notice, the alleged violator shall be released.
(c)  A person who fails to appear for a violation of this code or a regulation of the commission adopted under this code within the time specified in the written notice commits an offense that is a Class C Parks and Wildlife Code misdemeanor, and a warrant for the arrest of the alleged violator may be issued.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 4, eff. Sept. 1, 1985;  Acts 1993, 73rd Leg., ch. 338, Sec. 1, eff. Sept. 1, 1993.
Sec. 12.107.  REMISSION OF FINES.  (a)  A justice of the peace, clerk of any court, or any other officer of the state who receives a fine imposed by a court for a violation of this code or a regulation of the commission adopted under this code shall send the fine to the department within 10 days after the date of collection.  A statement containing the docket number of the case, the name of the person fined, and the section of this code or the regulation violated must accompany the remission of the fine.
(b)  The amount of the fine to be remitted to the department is 80 percent in county court or higher court cases and 85 percent in justice court cases.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1985, 69th Leg., ch. 269, Sec. 4, eff. Sept. 1, 1985;  Acts 1993, 73rd Leg., ch. 338, Sec. 2, eff. Sept. 1, 1993.
Sec. 12.108.  EXPENSES.  In making an arrest, summoning a witness, and serving a process, the department is entitled to the same fee and mileage allowance as a sheriff.  The fee is charged and collected in the same manner as sheriff's fees.
Sec. 12.109.  CONFISCATION AND DISPOSITION OF AQUATIC PRODUCTS.  (a)  Except as provided by Subsection (c) or (f) of this section, when an enforcement officer of the department believes that a person has unlawful possession of any fish, oysters, shrimp, or other aquatic products as defined by Section 47.001(16) of this code, taken in violation of this code or a proclamation of the commission adopted under this code, he shall seize the aquatic products and all aquatic products aboard any vessel involved, or in any device used to catch or store aquatic products, whether in storage or on deck, and whether alive or dead, frozen or fresh, whole or processed to any extent.  The officer shall sell the aquatic products and dispose of the proceeds as provided in Subsection (b) of this section.
(b)  The confiscated aquatic products shall be sold to the highest of three bidders.  The proceeds of the sale shall be deposited in the state treasury to the credit of the appropriate suspense fund pending the outcome of the action taken against the person charged with illegal possession.  The officer shall give to the person a receipt for all aquatic products seized upon the sale of the aquatic products.  If bids cannot be obtained, the department, if practicable, shall donate the aquatic products to a charitable institution, hospital, or other person.  To the extent practicable, Subtitle A, Title 6, Health and Safety Code, applies to an aquatic product sold under this subsection that is intended for sale and use as human food.
(c)  If aquatic products are seized due only to a violation of a daily bag or possession limit, the officer shall allow the person in possession to retain a lawful quantity of the aquatic products, but only if the person gives written acknowledgement of retention of a lawful quantity to the officer on a form provided by the department.  The officer shall sell the remainder of the aquatic products and dispose of the proceeds as provided by Subsection (b) of this section.
(d)  If the person is found guilty, pleads guilty or nolo contendere, is placed on deferred adjudication, or fails to appear in accordance with a notice described by Section 12.106 or another law requiring that, as a condition of release, the defendant subsequently appear before a court to answer for the offense, all the proceeds shall be transferred to the credit of the game, fish, and water safety account.  If the person is acquitted by the trial court, the charges against the person are dismissed, or the statute of limitations period for the prosecution of the offense has expired, the department shall pay the proceeds of the sale to the person from whom the aquatic products were seized.
(e)  This section does not apply to fish, shrimp, or other aquatic products that are taken from an area declared by the Commissioner of Health to be a prohibited area.
(f)  If an enforcement officer of the department determines that a person is in possession of oysters that were taken unlawfully, the officer may direct, if practical, that the oysters be returned to a public reef.
(g)  The department and an enforcement officer of the department who acts under this section are not liable in any civil action for the seizure, sale, release, or donation of aquatic products or for the order to return oysters to a public reef.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1975, 64th Leg., p. 1214, ch. 456, Sec. 13(k), eff. Sept. 1, 1975.  Acts 1985, 69th Leg., ch. 433, Sec. 7, eff. June 11, 1985;  Acts 1987, 70th Leg., ch. 611, Sec. 1, eff. Sept. 1, 1987;  Acts 1993, 73rd Leg., ch. 338, Sec. 3, eff. Sept. 1, 1993;  Acts 1993, 73rd Leg., ch. 679, Sec. 11, eff. Sept. 1, 1993;  Acts 1999, 76th Leg., ch. 454, Sec. 6, eff. Sept. 1, 1999.
Acts 2013, 83rd Leg., R.S., Ch. 325 (H.B. 1818), Sec. 1, eff. September 1, 2013.
Sec. 12.110.  DISPOSITION OF CONFISCATED GAME.  (a)  Except as provided by Subsection (d), the department shall donate, whenever donation is reasonably practicable, any wild game animal, bird, fowl, game fish, or exotic animal that is unlawfully killed, taken, shipped, held in storage, possessed, or offered for sale in a public eating place to a charitable institution, hospital, or person or persons.
(b)  The expense of any storage, care, feeding, cold storage, or processing that may be necessary for an unlawfully possessed game bird, fowl, animal, game fish, or exotic animal shall be assessed against the violator on the violator's conviction.
(c)  The department and an enforcement officer of the department who acts under this section are not liable in any civil action for the seizure, sale, or donation of a game bird, other fowl, animal, game fish, or exotic animal.
(d)  The department may sell confiscated live game described by Subsection (a) to the highest of three bidders.  At the time of a sale under this subsection, the department shall provide the buyer a receipt for all game sold to the buyer. The department shall deposit the proceeds of the sale in the state treasury to the credit of the appropriate suspense fund pending the outcome of any action against the person charged with an unlawful action described by Subsection (a).  If that person is found guilty, pleads guilty or nolo contendere, is placed on deferred adjudication, or fails to appear in accordance with a notice described by Section 12.106 or another law requiring that, as a condition of release, the defendant subsequently appear before a court to answer for the offense, the department shall transfer the proceeds of the sale to the credit of the game, fish, and water safety account.  If the person is acquitted by the trial court, the charges against the person are dismissed, or the statute of limitations period for the prosecution of the offense has expired, the department shall pay the proceeds of the sale to the person from whom the game was seized.
(e)  This section does not apply to the lawful possession or sale of an exotic animal.
(f)  In this section, "exotic animal" has the meaning assigned by Section 62.015.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1, 1975.  Amended by Acts 1977, 65th Leg., p. 33, ch. 16, Sec. 1, eff. March 16, 1977;  Acts 1993, 73rd Leg., ch. 338, Sec. 4, eff. Sept. 1, 1993.
Acts 2005, 79th Leg., Ch. 992 (H.B. 2026), Sec. 3, eff. June 18, 2005.
Acts 2013, 83rd Leg., R.S., Ch. 325 (H.B. 1818), Sec. 2, eff. September 1, 2013.
Sec. 12.1101.  SEIZURE AND DISPOSAL OF CERTAIN ANIMALS' PELTS AND CARCASSES.  (a)  A game warden or authorized employee of the department may seize a fur-bearing animal, pelt, or carcass taken or possessed in violation of a provision of this code or a lawful regulation of the commission.
(b)  The department may sell a confiscated fur-bearing animal, pelt, or carcass to the highest of three bidders.  At the time of a sale under this subsection, the department shall provide the buyer a receipt for all fur-bearing animals, pelts, or carcasses sold to the buyer. The department shall deposit the proceeds of the sale in the state treasury to the credit of the appropriate suspense fund pending the outcome of any action against the person charged with an unlawful action described by Subsection (a). If that person is found guilty, pleads guilty or nolo contendere, is placed on deferred adjudication, or fails to appear in accordance with a notice described by Section 12.106 or another law requiring that, as a condition of release, the defendant subsequently appear before a court to answer for the offense, the department shall transfer the proceeds of the sale to the credit of the game, fish, and water safety account.  If the person is acquitted by the trial court, the charges against the person are dismissed, or the statute of limitations period for the prosecution of the offense has expired, the department shall pay the proceeds of the sale to the person from whom the items were seized.
(c)  A game warden or authorized employee of the department acting under the authority of this section is immune from liability and from suit for the seizure of items under this section.
(d)  To the extent practicable, Subtitle A, Title 6, Health and Safety Code, applies to an animal or animal part sold under this section that is intended for sale and use as human food.
Added by Acts 1977, 65th Leg., p. 82, ch. 39, Sec. 1, eff. March 30, 1977.  Amended by Acts 1979, 66th Leg., p. 549, ch. 260, art. 1, Sec. 6, eff. Sept. 1, 1979.
Acts 2013, 83rd Leg., R.S., Ch. 325 (H.B. 1818), Sec. 3, eff. September 1, 2013.
Sec. 12.1105.  SEIZURE AND DISPOSITION OF UNLAWFUL FISHING DEVICES.  (a)  When a game warden or other peace officer finds in or on the public water of the state a seine, net, trawl, trap, or other device that is in or on the water in violation of a provision of this code or in violation of a lawful regulation of the commission or is aboard a vessel in violation of a provision of this code or a lawful regulation of the commission, the warden or other peace officer shall seize without a warrant the seine, net, trawl, trap, or device.
(b)  When an alleged violator is charged with an offense in connection with the unlawful use or possession of the seine, net, trawl, trap, or device seized by the warden or other peace officer, the warden or other peace officer shall hold the seine, net, trawl, trap, or device as evidence.  Except as provided in Subsection (e) of this section, on a final conviction for the offense of the alleged violator, including a final judgment arising from a plea of nolo contendere, the warden or other peace officer shall destroy the seine, net, trawl, trap, or device.  If the alleged violator is not guilty of the offense or if the charge is not prosecuted and dismissed, the seine, net, trawl, trap, or device shall be returned to the owner.
(c)  If no person is charged with an offense in connection with the seizure of a seine, net, trawl, trap, or other device under this section, and no person is found in possession of the seine, net, trawl, trap, or device, the warden or other peace officer shall give notice of the seizure to the county judge or a judge of a county court at law or justice court of the county where the seizure occurred.  The notice must include a description of the items seized and the location of the seizure.  The court shall then direct the sheriff or a constable to post a copy of the notice in the county courthouse for not less than 10 days.  At the expiration of 10 days, the court shall hold a hearing to determine if the seine, net, trawl, trap, or device was used or possessed in violation of a provision of this code or of a lawful regulation of the commission.  Except as provided in Subsection (e) of this section, if the use or possession was unlawful, the warden or other peace officer shall destroy the seine, net, trawl, trap, or device.
(d)  A game warden or other peace officer who seizes items under this section is immune from liability and from suit for a seizure or destruction of a net as authorized by this section.
(e)  The Parks and Wildlife Department, when requested by authorized representatives of units of The University of Texas System, The Texas A&M University System, and the Texas State University System engaged in teaching and research related to marine science and oceanography, may transfer to such units of said universities and university systems nets, seines, and other marine equipment, which have been seized under this section, to be used in carrying out the teaching and research programs within said institutions.
Added by Acts 1977, 65th Leg., p. 381, ch. 190, Sec. 3, eff. May 20, 1977.  Amended by Acts 1991, 72nd Leg., ch. 781, Sec. 1, eff. Sept. 1, 1991;  Acts 1995, 74th Leg., ch. 1061, Sec. 10, eff. Sept. 1, 1995;  Acts 1997, 75th Leg., ch. 227, Sec. 7, eff. May 23, 1997;  Acts 1999, 76th Leg., ch. 851, Sec. 1, eff. Sept. 1, 1999.
Sec. 12.1106.  SEIZURE AND DISPOSITION OF CONTRABAND;  IMMUNITY.  (a)  A game warden or other peace officer who has probable cause to believe property is contraband may seize the property without a warrant.
(2)  if no person is arrested for an offense immediately after the warden or officer seizes the property.
(c)  The court shall direct the sheriff or a constable to post a copy of the notice in the county courthouse for not less than 10 days.  At the expiration of 10 days, the court shall hold a hearing to determine if the seized property is contraband.
(B)  the court determines that the seized property is not contraband.
(f)  A warden or officer who seizes property under this section is immune from liability and from suit for a seizure and disposition of property as authorized by this section.
(g)  The commission may adopt rules to implement this section.
(h)  The department shall deposit money received under this section in the state treasury to the credit of the game, fish, and water safety account.
Added by Acts 1991, 72nd Leg., ch. 808, Sec. 1, eff. Sept. 1, 1991.  Amended by Acts 1993, 73rd Leg., ch. 679, Sec. 12, eff. Sept. 1, 1993;  Acts 1995, 74th Leg., ch. 966, Sec. 2, eff. Sept. 1, 1995;  Acts 1999, 76th Leg., ch. 851, Sec. 2, eff. Sept. 1, 1999;  Acts 1999, 76th Leg., ch. 959, Sec. 2, eff. Sept. 1, 1999.
Sec. 12.113.  COASTAL SURVEY CHARTS ADMISSIBLE.  In any prosecution under this code, United States Coastal Survey Charts are admissible.
Sec. 12.114.  DRIVER'S LICENSE OR PERSONAL IDENTIFICATION CERTIFICATE REQUIRED.  (a)  A person who is 17 years of age or older and who has a license or permit issued under this code or who is engaging in an activity that requires a license or permit shall have a driver's license or personal identification certificate in the person's immediate possession.
(b)  If the person is a resident as defined by Subdivision (1) of Section 42.001 of this code, "driver's license" and "personal identification certificate" have the meanings assigned by Chapter 521, Transportation Code.
(c)  If the person is a nonresident as defined by Section 42.001, "driver's license" and "personal identification certificate" mean those documents that are similar to those defined in Subsection (b) and that are issued by the agency in the state or country of which the person is a resident that is authorized to issue driver's licenses or personal identification certificates.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 32, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 165, Sec. 30.232, eff. Sept. 1, 1997;  Acts 1997, 75th Leg., ch. 1256, Sec. 10, eff. Sept. 1, 1997.
(2)  fails or refuses to display the driver's license or personal identification certificate required by Section 12.114 of this code when requested to do so by any peace officer, game warden, magistrate, or officer of a court of competent jurisdiction.
(b)  An offense under this section is a Class C Parks and Wildlife Code misdemeanor.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 32, eff. Sept. 1, 1985.
Sec. 12.116.  JUSTICE COURT TO PROVIDE AFFIDAVITS CERTIFYING CERTAIN CONVICTIONS.  (a)  If a person is convicted in justice court for violating a provision of this code or a proclamation or regulation adopted under this code that provides enhanced penalties for subsequent convictions, the court on request shall submit to the department an affidavit certifying the conviction.  The affidavit must include the driver's license number or personal identification certificate number obtained from the violator.
(b)  The affidavit certifying the conviction, if admissible under the Texas Rules of Evidence, is available in subsequent prosecutions of that person for violations of the section, proclamation, or regulation under which the prior conviction was obtained.
Sec. 12.117.  JUSTICE COURT TO PROVIDE AFFIDAVITS CERTIFYING CERTAIN CONVICTIONS AND OTHER INFORMATION.  (a)  If a person is convicted in a justice court for violating a provision of this code or a proclamation or regulation adopted under this code that provides enhanced penalties for subsequent convictions, the court on request shall submit to the department an affidavit certifying the conviction.  Along with such affidavit the court shall also compile and send to the department the defendant's driver's license number and copies of any photograph, picture, description, or measurement of the defendant made by any law enforcement agency in connection with the offense.
(b)  A certified copy of such affidavit and documents pursuant to Subsection (a) of this section is admissible as evidence in a criminal proceeding to prove that a particular person was convicted of the offense to which the documents pertain if the court finds that 15 days before trial, the party against whom the evidence is offered was provided a copy of the document offered as evidence.
Added by Acts 1985, 69th Leg., ch. 827, Sec. 10, eff. Aug. 26, 1985.  Amended by Acts 1987, 70th Leg., ch. 218, Sec. 1, eff. Sept. 1, 1987.
Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 18.001, eff. September 1, 2009.
Sec. 12.119.  VIOLATION OF COMMISSION RULE ON POSSESSION OF LICENSE;  PENALTY.  (a)  A person commits an offense if the person violates a rule adopted by the commission relating to possessing a license or stamp otherwise required by this code for hunting wildlife resources or for catching aquatic life.
(b)  An offense under this section is a Class C Parks and Wildlife misdemeanor.
Added by Acts 1995, 74th Leg., ch. 931, Sec. 2, eff. June 16, 1995.
Sec. 12.201.  CREATION OF FUND.  The department may accept and deposit in a special fund outside the state treasury, called the operation game thief fund, donations from any person made for purposes of this subchapter.  Funds deposited in the operation game thief fund may be used only for the maintenance of that fund, promotion of the operation game thief program through advertisement and marketing, the development, acquisition, and implementation of technological advancements to facilitate the apprehension and prosecution of persons who violate laws of this state intended to protect the state's natural or cultural resources or the public safety of persons using those natural or cultural resources, and payment of rewards and death benefits authorized by this subchapter.  The Operation Game Thief Committee shall adopt rules for the implementation of the operation game thief program and maintenance of the operation game thief fund.
Added by Acts 1981, 67th Leg., p. 3316, ch. 868, Sec. 1, eff. Aug. 31, 1981.  Amended by Acts 1987, 70th Leg., ch. 245, Sec. 1, eff. May 28, 1987;  Acts 1995, 74th Leg., ch. 244, Sec. 1, eff. Sept. 1, 1995.
Acts 2005, 79th Leg., Ch. 215 (H.B. 2032), Sec. 1, eff. September 1, 2005.
Sec. 12.202.  OPERATION GAME THIEF COMMITTEE.  (a)  The director shall appoint an Operation Game Thief Committee composed of 11 members to administer the operation game thief fund and to make reward payments and death benefit payments from that fund.  The director shall appoint persons who are not employees of the department and who have a demonstrated interest in game and fish conservation.  The director may consider the recommendations or nominations of any club or association.  The director shall designate one of the members as chairman of the committee.  The director shall appoint a former committee member to serve as chairman emeritus. The chairman emeritus has the same rights and duties as any other committee member.  The director or an employee designated by the director for that purpose shall serve as secretary to the committee.  A member of the committee serves without compensation.
(b)  Each member of the committee, including the chairman emeritus, serves a term of six years.  The terms of approximately one-third of the members, including the chairman emeritus, expire on January 31 of each odd-numbered year. The director may reappoint members.
(c)  The committee shall meet at least one time each calendar year at the department's office in Austin or at a location designated by the chairman of the committee.  Four committee members must be present for approval of disbursement of rewards to eligible applicants and death benefit payments to eligible recipients.  Except as provided by Subsection (d), if the vote for approval of disbursements of rewards or death benefits results in a tie vote, no action may be taken until the next meeting of the committee.
(d)  Repealed by Acts 2003, 78th Leg., ch. 1170, Sec. 29.02.
Added by Acts 1981, 67th Leg., p. 3316, ch. 868, Sec. 1, eff. Aug. 31, 1981.  Amended by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 33, eff. Sept. 1, 1985;  Acts 1987, 70th Leg., ch. 245, Sec. 2, eff. May 28, 1987;  Acts 1991, 72nd Leg., ch. 431, Sec. 1, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 631, Sec. 1, eff. Sept. 1, 1993;  Acts 1995, 74th Leg., ch. 244, Sec. 2, eff. Sept. 1, 1995;  Acts 2003, 78th Leg., ch. 1170, Sec. 29.01, 29.02, eff. Sept. 1, 2003.
(5)  Subchapter E, Chapter 7, or Subchapter D, Chapter 26, Water Code.
(b)  The committee may consider claims made at any time before its meeting, but consideration is limited to claims that relate to final convictions.
(c)  The committee shall prescribe and furnish the forms on which claims are to be made, including any documentation to be furnished to substantiate the claim.
(d)  Repealed by Acts 2005, 79th Leg., Ch. 215, Sec. 3, eff. September 1, 2005.
Added by Acts 1981, 67th Leg., p. 3316, ch. 868, Sec. 1, eff. Aug. 31, 1981.  Amended by Acts 1987, 70th Leg., ch. 245, Sec. 3, eff. May 28, 1987.
Acts 2005, 79th Leg., Ch. 215 (H.B. 2032), Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 215 (H.B. 2032), Sec. 3, eff. September 1, 2005.
Sec. 12.204.  REWARDS;  PAYMENTS.  No amount in excess of that on deposit in the operation game thief fund is payable as a reward under this section or as a death benefit payment under Section 12.206 of this code.  No reward may be granted to a person, or an immediate family member of a person, who is a peace officer, deputy game warden, prosecutor, employee of the department, or member of the judiciary.
Added by Acts 1981, 67th Leg., p. 3316, ch. 868, Sec. 1, eff. Aug. 31, 1981.  Amended by Acts 1983, 68th Leg., p. 123, ch. 29, Sec. 4, eff. April 19, 1983;  Acts 1987, 70th Leg., ch. 245, Sec. 4, eff. May 28, 1987;  Acts 1993, 73rd Leg., ch. 631, Sec. 2, eff. Sept. 1, 1993.
(2)  establish procedures for voluntary donations to the operation game thief fund to be collected and sent to the department.
Added by Acts 1981, 67th Leg., p. 3316, ch. 868, Sec. 1, eff. Aug. 31, 1981.
Sec. 12.206.  PAYMENT OF DEATH BENEFITS.  The committee may use the operation game thief fund to supplement any death benefits received by the families of peace officers employed by the department who are killed in the line of duty.  The committee shall adopt guidelines for the payment of death benefits under this section.
Added by Acts 1993, 73rd Leg., ch. 631, Sec. 3, eff. Sept. 1, 1993.
Sec. 12.301.  LIABILITY FOR VALUE OF FISH, SHELLFISH, REPTILE, AMPHIBIAN, BIRD, OR ANIMAL.  A person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of this code or a proclamation or regulation adopted under this code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 34, eff. Sept. 1, 1985.
Sec. 12.302.  VALUE OF FISH, SHELLFISH, REPTILE, AMPHIBIAN, BIRD, OR ANIMAL.  For purposes of this subchapter and for determining damages under Section 7.109, Water Code, the commission shall adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds, and animals.
Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 19.001, eff. September 1, 2011.
Sec. 12.303.  CIVIL SUIT FOR RECOVERY OF VALUE.  (a)  The attorney general or the county attorney of the county in which the violation occurred may bring a civil suit under this subchapter in the name of the state to recover the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured.
(b)  A suit under this section shall be brought in the county in which the violation occurred, except that the attorney general may bring suit in Travis County.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 34, eff. Sept. 1, 1985.  Amended by Acts 1989, 71st Leg., ch. 73, Sec. 1, eff. Sept. 1, 1989.
Sec. 12.304.  MORE THAN ONE DEFENDANT.  If more than one defendant is named in a suit brought under this subchapter, each defendant against whom judgment is rendered is jointly and severally liable for the recovery provided by this subchapter.
Sec. 12.305.  RECOVERY OF VALUE IN ADDITION TO FINE.  The recovery amount provided by this subchapter is in addition to any fine, forfeiture, penalty, or costs imposed under another law.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 34, eff. Sept. 1, 1985.  Amended by Acts 1987, 70th Leg., ch. 193, Sec. 1, eff. Sept. 1, 1987.
Sec. 12.306.  BOTH CIVIL SUIT AND CRIMINAL PROSECUTION PERMISSIBLE.  The pendency or determination of a suit brought under this subchapter or the pendency or determination of a criminal prosecution for the same killing, catching, taking, possession, or injury does not bar the other action.
Sec. 12.307.  DISPOSITION OF RECOVERY.  (a)  Any damages for injury to fish, shellfish, reptiles, amphibians, birds, or animals recovered in a suit brought by the attorney general shall be deposited to the credit of the game, fish, and water safety account.
(b)  Fifty percent of any damages for injury to fish, shellfish, reptiles, amphibians, birds, or animals recovered in a suit brought by a county attorney shall be deposited in the general fund of the county.  The remainder shall be deposited to the credit of the game, fish, and water safety account.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 34, eff. Sept. 1, 1985.  Amended by Acts 1989, 71st Leg., ch. 73, Sec. 2, eff. Sept. 1, 1989;  Acts 1993, 73rd Leg., ch. 679, Sec. 13, eff. Sept. 1, 1993.
Sec. 12.308.  CERTAIN COSTS RECOVERABLE.  (a)  The actual cost of investigation, reasonable attorney's fees, and reasonable expert witness fees incurred by the department in a civil suit under this subchapter may be recovered in addition to damages for the value of any fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured.
(b)  Any amounts recovered under this section shall be credited to the same operating accounts from which the expenditures occurred.
Added by Acts 2005, 79th Leg., Ch. 992 (H.B. 2026), Sec. 4, eff. June 18, 2005.
Sec. 12.401.  APPLICATION.  A person adjudged guilty of an offense under this code or a proclamation or regulation adopted under this code shall be punished in accordance with this subchapter and the Code of Criminal Procedure, 1965.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 1, eff. Sept. 1, 1985.
Sec. 12.402.  CIVIL PENALTY.  This subchapter does not deprive a court of authority conferred by law to forfeit property, suspend or cancel a license or permit, cite for contempt, or impose any other civil penalty.  The civil penalty may be included in the sentence.
Sec. 12.403.  CLASSIFICATION OF OFFENSES.  (a)  Offenses are designated as Parks and Wildlife Code misdemeanors or Parks and Wildlife Code felonies.
(3)  Class C Parks and Wildlife Code misdemeanors.
(c)  Section 12.41, Penal Code, does not apply to classifications of offenses under this code.
(3)  both such fine and imprisonment.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 11, eff. Sept. 1, 1997.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 12, eff. Sept. 1, 1997.
Sec. 12.406.  CLASS C PARKS AND WILDLIFE CODE MISDEMEANOR.  An individual adjudged guilty of a Class C Parks and Wildlife Code misdemeanor shall be punished by a fine of not less than $25 nor more than $500.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1987, 70th Leg., ch. 535, Sec. 1, eff. Sept. 1, 1987.
Sec. 12.4061.  PARKS AND WILDLIFE CODE STATE JAIL FELONY.  (a)  An individual adjudged guilty of a Parks and Wildlife Code state jail felony shall be punished by confinement in a state jail for a term of not more than two years or less than 180 days.
(b)  In addition to confinement, an individual adjudged guilty of a Parks and Wildlife Code state jail felony may be punished by a fine of not less than $1,500 and not more than $10,000.
Added by Acts 1999, 76th Leg., ch. 959, Sec. 3, eff. Sept. 1, 1999.
Sec. 12.407.  PARKS AND WILDLIFE CODE FELONY.  (a)  An individual adjudged guilty of a Parks and Wildlife Code felony shall be punished by confinement in the Texas Department of Criminal Justice for any term of not more than 10 years or less than two years.
(b)  In addition to imprisonment, an individual adjudged guilty of a Parks and Wildlife Code felony may be punished by a fine of not less than $2,000 nor more than $10,000.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 13, eff. Sept. 1, 1997.
Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.143, eff. September 1, 2009.
Sec. 12.408.  SUBSEQUENT CONVICTIONS.  The use of a conviction for enhancement purposes does not preclude the subsequent use of a conviction for enhancement purposes.
Sec. 12.409.  SEPARATE OFFENSES.  Each fish, bird, animal, reptile, amphibian, or egg or part of a fish, bird, animal, reptile, amphibian, or egg taken, possessed, killed, left to die, imported, exported, offered for sale, sold, purchased, attempted to be purchased, or retained in violation of any provision of this code or a proclamation or regulation adopted under this code constitutes a separate offense.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 14, eff. Sept. 1, 1997.
Acts 2005, 79th Leg., Ch. 992 (H.B. 2026), Sec. 5, eff. June 18, 2005.
Sec. 12.410.  AUTHORIZED PUNISHMENTS FOR CORPORATIONS AND ASSOCIATIONS.  (a)  If a corporation or association is adjudged guilty of an offense under this code that provides a penalty consisting of a fine only, a court may sentence the corporation or association to pay a fine in an amount fixed by the court, not to exceed the fine provided by the offense.
(2)  $10,000 if the offense is a Class A or Class B Parks and Wildlife Code misdemeanor.
(c)  In lieu of the fines authorized by Subsections (a) and (b) of this section, if a court finds that the corporation or association gained money or property or caused personal injury, property damage, or other loss through the commission of a Parks and Wildlife Code felony or Class A or Class B Parks and Wildlife Code misdemeanor, the court may sentence the corporation or association to pay a fine in an amount fixed by the court, not to exceed double the amount gained or caused by the corporation to be lost, whichever is greater.
(d)  In addition to any sentence that may be imposed by this section, a corporation that has been adjudged guilty of an offense may be ordered by the court to give notice of the conviction to any person the court deems appropriate.
Sec. 12.411.  JURISDICTION OF JUSTICE COURT.  In addition to the jurisdiction provided by the constitution and other law, a justice court has jurisdiction of Class C Parks and Wildlife Code misdemeanors.
Added by Acts 1987, 70th Leg., ch. 535, Sec. 2, eff. Sept. 1, 1987.
Sec. 12.501.  REVOCATION OR SUSPENSION OF LICENSE OR PERMIT.  (a)  In this subchapter, "permittee" or "licensee" includes each member of a partnership or association, an agent acting on behalf of a partnership or association, each officer of a corporation, and the owner of a majority of a corporation's corporate stock.
(5)  the permittee or licensee is liable to the state under Section 12.301.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.  Amended by Acts 1999, 76th Leg., ch. 454, Sec. 1, eff. Sept. 1, 1999.
Acts 2013, 83rd Leg., R.S., Ch. 99 (S.B. 820), Sec. 1, eff. September 1, 2013.
Sec. 12.5015.  AUTOMATIC REVOCATION OF HUNTING OR FISHING LICENSE OR PERMIT.  (a)  Except as provided by this section, any hunting or fishing license or permit issued by the department to a person is automatically revoked on final conviction of the person of an offense under Section 61.022, 62.003, 62.004, 62.005, 62.0065, 62.011, 66.004(a), or 66.004(c) or a violation of a rule adopted under Section 62.0065.
(b)  If the holder of a lifetime license is finally convicted of an offense under Section 61.022, 62.003, 62.004, 62.005, 62.0065, 62.011(c), 66.004(a), or 66.004(c), or a violation of a rule adopted under Section 62.0065, the person's lifetime license is automatically suspended.  The suspension is for a period set by the court of not less than one year or more than five years.  If the court does not set a period, the suspension is for one year from the date the conviction becomes final.
(c)  On conviction of a person for an offense under Section 61.022, 62.003, 62.004, 62.005, 62.0065, 62.011(c), 66.004(a), or 66.004(c), or a violation of a rule adopted under Section 62.0065, the court shall set a period of not less than one year and not more than five years during which the department may not issue that person a license, tag, or stamp under Chapter 42, 46, or 50.  If the court does not set a period, the department may not issue that person a license, tag, or stamp under Chapter 42, 46, or 50 before the first anniversary of the date the conviction becomes final.
(d)  A person who has a license or permit revoked or suspended under this section shall surrender the revoked or suspended license or permit to the court.  The court shall send the department the revoked or suspended license or permit and a copy of the judgment of conviction.
(e)  For purposes of this section, "final conviction" includes a plea of guilty or nolo contendere to or the imposition of deferred adjudication for an offense.
Added by Acts 1997, 75th Leg., ch. 1090, Sec. 2, eff. Sept. 1, 1997.  Amended by Acts 1999, 76th Leg., ch. 959, Sec. 4, eff. Sept. 1, 1999.
Acts 2005, 79th Leg., Ch. 989 (H.B. 1959), Sec. 5, eff. September 1, 2005.
Sec. 12.502.  NOTICE;  HEARING.  The department must give the licensee or permittee an opportunity for a hearing concerning the suspension or revocation of the license or permit.  Notice of the hearing must be given and the hearing held as provided by Sections 2001.052 and 2001.054, Government Code.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.  Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(70), eff. Sept. 1, 1995.
Sec. 12.503.  NOTICE OF SUSPENSION OR REVOCATION.  (a)  After notice and hearing as provided by Section 12.502 of this code, the department shall notify the licensee or permittee of the suspension or revocation of the license or permit.
(b)  The notice under this section must be given personally or by registered or certified mail.
(c)  The suspension or revocation takes effect when the notice under this section is given or delivered.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.
Sec. 12.504.  TIME OF SUSPENSION OR REVOCATION.  (a)  A license or permit may be suspended under this subchapter for a period set by the director.  The period of suspension ends on the expiration of the time set by the director or the expiration of the license or permit, whichever occurs first.
(b)  The holder of a license or permit that has been suspended may not apply for another license or permit of the same kind during the period of suspension.
(c)  The holder of a license or permit that has been revoked may not apply for another license or permit of the same kind for one year from the date the revocation takes effect.
(d)  A person who applies for a license or permit in violation of Subsection (b) or (c) of this section commits an offense.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.  Amended by Acts 1999, 76th Leg., ch. 959, Sec. 5, eff. Sept. 1, 1999.
Sec. 12.505.  VIOLATION OF SUSPENSION, REFUSAL, OR REVOCATION.  A person who engages in an activity requiring a permit or license during the time for which such license or permit has been suspended, refused, or revoked commits an offense that is a Class A Parks and Wildlife Code misdemeanor.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.  Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 15, eff. Sept. 1, 1997;  Acts 1999, 76th Leg., ch. 454, Sec. 5, eff. Sept. 1, 1999.
Sec. 12.506.  APPEAL FROM SUSPENSION, REFUSAL, OR REVOCATION OF LICENSE OR PERMIT.  (a)  An appeal from an order of the department refusing to issue or transfer a license or permit or revoking or suspending a license or permit may be taken to a district court of Travis County.
(b)  The appeal shall be under the substantial evidence rule and against the department alone as defendant.
(c)  This section does not apply to the appeal of a decision by the department refusing to issue or renew a permit to which Subchapter G applies.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.  Amended by Acts 1999, 76th Leg., ch. 454, Sec. 2, 3, eff. Sept. 1, 1999.
Acts 2013, 83rd Leg., R.S., Ch. 99 (S.B. 820), Sec. 2, eff. September 1, 2013.
Sec. 12.507.  ALTERNATIVES TO SUSPENSION.  (a)  In lieu of suspending a license or permit under this subchapter, the department may give the licensee or permittee the opportunity to pay a civil penalty.
(2)  the amount reasonably necessary to deter further violations.
(c)  The amount of the civil penalty may not be less than $150 for each day the license or permit was to have been suspended.
(d)  If the licensee or permittee does not pay the penalty before the sixth day after the date on which the department notifies him of the amount, he loses the opportunity to pay it and the department may impose the suspension.
(e)  Civil penalties received by the department under this section shall be deposited to the credit of the game, fish, and water safety account.
Added by Acts 1985, 69th Leg., ch. 267, art. 1, Sec. 36, eff. Sept. 1, 1985.  Amended by Acts 1993, 73rd Leg., ch. 679, Sec. 14, eff. Sept. 1, 1993.
(1)  "Notice" includes a certified letter sent from the department by the United States Postal Service to the applicant at the last address supplied to the department by the applicant or verbal notice to the applicant by a representative of the department.
(2)  "Finally convicted" includes a final judgment of guilt, deferred adjudication, a plea of nolo contendere, or a plea of guilty.
(3)  has failed to fully pay the amount due under Section 12.301 after the department has issued notice of liability to the applicant or transferee.
(c)  The contested case provisions of the Administrative Procedure Act (Sections 2001.051-2001.178, Government Code) do not apply to the refusal to issue, transfer, or renew a license, permit, or tag under this section.
Added by Acts 1999, 76th Leg., ch. 454, Sec. 4, eff. Sept. 1, 1999.
(5)  a mule deer management permit under Subchapter R-1, Chapter 43.
Added by Acts 2013, 83rd Leg., R.S., Ch. 99 (S.B. 820), Sec. 3, eff. September 1, 2013.
(1)  "Applicant" means a person who has applied for a new or renewal permit.
(2)  "Final conviction" means a final judgment of guilt, the granting of deferred adjudication or pretrial diversion, or the entering of a plea of guilty or nolo contendere.
(4)  any additional information that the department determines is necessary to process the application.
(4)  the Lacey Act (16 U.S.C. Sections 3371-3378).
Sec. 12.605.  PROCEDURE FOR REFUSAL TO ISSUE OR RENEW PERMIT.  (a)  Not later than the 10th day after the date a decision to refuse to issue or renew a permit has been made, the department shall provide to the applicant a written statement of the reasons for the decision.
(b)  The commission by rule shall adopt procedures consistent with this subchapter for the department's review of a refusal to issue or renew a permit.
Sec. 12.607.  APPEAL OF DEPARTMENT DECISION REFUSING TO ISSUE OR RENEW PERMIT.  (a)  Venue to appeal a decision of the department refusing to issue or renew a permit is a district court in Travis County.
(b)  The appeal shall be by trial de novo.
Sec. 12.701.  ISSUANCE OF LICENSE, STAMP, PERMIT, OR TAG BY LICENSE DEPUTIES.  The department may authorize the issuance of a license, stamp, permit, or tag by a license deputy.
Added by Acts 1995, 74th Leg., ch. 931, Sec. 3, eff. June 16, 1995.
Sec. 12.702.  LICENSE DEPUTIES;  FEES.  (a)  An employee of the department, a county clerk, or another person designated or contracted with by the department to issue and collect money received for a license, stamp, permit, tag, or other similar item is a license deputy and may issue and collect money for a license, stamp, permit, tag, or other similar item issued under this code, including a special issue stamp or decal.
(b)  The commission by rule may set collection and issuance fees for a license, stamp, tag, permit, or other similar item issued under any chapter of this code.  The commission shall not set any collection or issuance fees for license deputies at amounts less than the amounts in effect on June 1, 1995.  If a collection or issuance fee or other similar fee set by another section of this code conflicts with this section, the collection or issuance fee set under the authority of this section prevails.
Sec. 12.703.  POINT-OF-SALE SYSTEM.  (a)  The department may issue a license, stamp, tag, permit, or another similar item authorized by this code or federal law through the use of automated equipment and a point-of-sale system.
(b)  The department may designate an entity to install the system for the issuance of licenses, stamps, permits, tags, or other similar items.  A designated entity may collect revenue for the department from license deputies.
(c)  The commission by rule may set the amount of compensation for a point-of-sale entity.  The compensation may include an amount to be retained by the entity from the fee collected for each item issued by the entity.  The rules must specify standards for the licenses, including the legibility of the license.
Added by Acts 1995, 74th Leg., ch. 931, Sec. 3, eff. June 16, 1995.  Amended by Acts 2001, 77th Leg., ch. 968, Sec. 30, eff. Sept. 1, 2001.
Acts 2007, 80th Leg., R.S., Ch. 570 (S.B. 1668), Sec. 1, eff. September 1, 2007.
(3)  perform any other function required by the license deputy's agreement with the department.
Sec. 12.705.  LICENSE, STAMP, PERMIT, AND TAG SALES REPORTS.  (a)  After the end of each calendar month or at any other time designated by the department, a license deputy shall send to the department a report on a form and in the manner prescribed by the department.
(b)  A license deputy shall furnish any other information or material required by the license deputy's agreement with the department.
(c)  The commission by rule may establish reasonable penalties for delinquent payments or reports from license deputies and may establish payment discounts for timely payments or reports from license deputies.
Sec. 12.706.  UNISSUED ITEMS.  A license deputy shall return to the department, at the department's request, unissued licenses, stamps, permits, tags, or any other materials or equipment furnished to the license deputy by the department.
Sec. 12.707.  ISSUANCE OR ACCEPTANCE OF LICENSE, STAMP, PERMIT, OR TAG.  No person may issue or accept a license, stamp, permit, or tag required by this code except on a form provided by the department.
Sec. 12.708.  LIABILITY OF LICENSE DEPUTY FOR SALES.  (a)  This section applies to the sale of a license, stamp, permit, or tag generated by a license deputy or by an employee or agent of a license deputy.
(b)  A license deputy holds in trust for the benefit of the state money that the license deputy receives from the sale of a license, stamp, permit, or tag, minus the amount of the authorized sales commission, until that money is transferred to the state treasury for credit to the appropriate department account.  The license deputy is liable to the department for the full amount of money held in trust.  If the license deputy is not an individual, each officer, director, or owner of the license deputy is personally liable to the department for the full amount of money held in trust.
Added by Acts 2005, 79th Leg., Ch. 822 (S.B. 804), Sec. 1, eff. June 17, 2005.

matches:
art. 1
art. 1
art. 3
art. 3
art. 3
art. 1
art. 3
art. 1
art. 1
art. 1
art. 3
art. 1
art. 1
art. 1
art. 1
art. 1
art. 1
art. 1
art. 1
art. 3
art. 3
art. 3
art. 3
art. 3
art. 3
art. 1
art. 1
art. 1
art. 1
art. 1
art. 1
art. 1


text:
defense, that the plaintiff's physical condition was attributable to disease as an independent cause, and this defense may be established as well by cross-examination of plaintiff's witnesses as by direct testimony of witnesses for the defendant. P. 279 U. S. 316.
2. Where, in an action in damages against a railroad for personal injuries, counsel for the defendant attempted to develop, by cross-examination of plaintiff's witnesses, evidence which would support a defense that the physical condition of the plaintiff was due to syphilis as an independent cause, but formally abandoned this defense at the close of the case, the conduct of counsel for the plaintiff in repeating before the jury that syphilis was the defense in the case, and the use of vituperative language in denouncing the defendant for charging the plaintiff with indecency -- although plaintiff's own witness had testified that the disease was frequently transmitted to innocent parties -- was calculated improperly to influence the verdict by appealing to passion and prejudice, and is ground for reversal. P. 279 U. S. 317.
3. Defense counsel's want of good judgment or good taste, or even misconduct, in following a line of inquiry on cross-examination which might be availed of to establish a valid defense, but one which was formally abandoned at the close of the case, was not an issue for the jury, and could not excuse misconduct on the part of opposing counsel. P. 279 U. S. 317.
4. A bitter and passionate attack on opposing counsel's conduct of the case, under circumstances tending to stir the resentment and arouse the prejudice of the jury, should be promptly suppressed by the trial court, and failure to sustain an objection to the misconduct or otherwise to make certain that the jury would disregard it enhances its prejudicial effect. P. 279 U. S. 318.
5. The public interest requires that litigation be fairly and impartially conducted, and it is the duty of the court to protect suitors in their rights to a verdict uninfluenced by the appeals of counsel to passion and prejudice. P. 279 U. S. 318.
6. Failure of counsel to particularize an exception will not preclude the court from correcting error in a case involving a verdict influenced by passion or prejudice. P. 279 U. S. 318.
of the cause, all tending to create an atmosphere of hostility toward the defendant as a railroad company located in another section of the country, should have been condemned as an improper appeal to sectional or local prejudice. P. 279 U. S. 319.
8. It is the duty of counsel presenting cases to this Court to be adequately prepared and to be fair and candid in the argument. P. 279 U. S. 319.
Writs of certiorari, 278 U.S. 590, to the circuit court of appeals to review a decision affirming judgments against the petitioner on causes of action arising out of the alleged negligent operation of one of its trains. The cases had been removed from a state court to the district court upon the ground of diversity of citizenship.
"be limited to the question whether the alleged misconduct of counsel for the plaintiffs in their arguments to the jury was so unfairly prejudicial to the defendant as to justify a new trial."
At the trial, there was evidence that respondent, while a passenger on petitioner's train, was thrown to the floor by a sudden and unusual motion of the train, receiving a blow on her head which caused paralysis of one side of the body, impaired locomotion, and other physical disabilities. All material allegations of the complaint were denied, including those specially setting up the cause and nature of respondent's injuries. In the course of the cross-examination of respondents' witnesses, petitioner's counsel elicited the fact that, following the accident, one of respondent's physicians had administered a treatment usually given for syphilis. He asked other questions tending to show, had favorable answers been received, that she had exhibited symptoms recognized to be those of this disease; that the Wasserman test for syphilis, which had been applied to her by her physician with negative results, was not necessarily conclusive as to its nonexistence; that other more reliable tests had not been applied; that the disease might cause the paralysis complained of and the treatment for it produce the other symptoms exhibited by respondent.
evidence to support it, that her condition was caused by the administration, by one of her physicians, of a specific for syphilis in consequence of a mistaken diagnosis.
"But, gentlemen, the vilest defense made in this case, a defense which would bar that girl from all society, intimated in this case that she had the syphilis. That is the defense in this case, that she had syphilis."
"Gentlemen of the jury, they would charge her with a disease which would brand her as bad as a leper and exclude her from the society of decent people. That is the kind of a defense that is in this case, and I resent it. I resent the New York Central coming into this town and saying that that girl has the syphilis and trying to make this jury believe that she has the syphilis."
"She will be a misery to herself; every time she attempts to take a step and is unable to do so, she suffers mental anguish; every time she sees people watching her, and knowing what she is doing, she suffers mental anguish. And gentlemen, it is sought to say that that is the result of syphilis. Syphilis, one of the most -- the worst disease that is known in human history, a disease that can never be freed from the body; a disease that is worse than leprosy. That is the defense in this case. And, gentlemen, with not one, not one scintilla of evidence in this case to justify it."
"You mean to tell me he [petitioner's counsel] didn't talk to those doctors about it? . . . That he wasn't aware of that, and he wasn't trying to put the stigma of indecency upon this young woman in his defense? You mean to say that he wasn't aware of that situation?"
"Oh, I have been too long in this business of trying law suits not to know that. So I immediately came to the front and exposed him, and proved it to the hilt; so much so that they stopped. . . . Never again will you ever dare to put that letter of syphilis upon the brow of a decent woman. . . ."
"Both counsel for the plaintiff who addressed the jury stated that . . ."
" The vilest defense made in this case, a defense which would bar that girl from all society, intimated in this case that she had the syphilis. That is the defense in this case, that she had the syphilis."
observe that this line of argument was likely to create prejudice, and did not aid the court or jury in the performance of their duties."
Petitioner argues, as the court below stated, that there was no defense in the case that respondent's condition was due to syphilis, that the quoted remarks of counsel were without foundation in the record, and that they were so prejudicial as to deprive petitioner of a fair trial.
From what has been said, it is apparent, as respondents assert, that, in a strict sense, the court of appeals did not, by the remarks quoted, correctly interpret the record or characterize with accuracy the issue which had been raised under the pleadings by the evidence. The burden was on respondents to prove that the physical condition complained of was caused by injuries received on petitioner's train. It was open to petitioner, if so advised, to seek in good faith to show that respondent's condition was not due to the accident, but was attributable to disease as an independent cause. This was a matter of defense which, under petitioner's general denial, might have been established either by the cross-examination of respondents' witnesses or by the testimony of its own.
developed little of moment, and no witnesses were called by petitioner to support it. At the close of the case, it was apparent that the attempted or suggested defense that respondent's condition was due to syphilis was without substance, and it was formally abandoned by petitioner's counsel in his address to the jury.
In this condition of the record, the repeated statements of counsel that syphilis was the defense, coupled with the vituperative language which we have quoted and the statements that the petitioner had charged respondent with indecency, made in the face of testimony of respondents' own witness that the disease was frequently transmitted by the use of drinking cups or other innocent means, was not fair comment on the evidence or justified by the record. Cf. Cherry Creek Nat. Bank v. Fidelity & Casualty Co., 207 App.Div. 787; Grabowsky v. Baumgart, 128 Mich. 267, 272; Fisher v. Weinholzer, 91 Minn. 22, 25; Strudgeon v. Village of Sand Beach, 107 Mich. 496, 504. Their obvious purpose and effect were improperly to influence the verdict by their appeal to passion and prejudice.
However ill-advised, counsel for petitioner was within his rights in following this line of inquiry, and, even if it be assumed that the situation was one calling for comment on the evidence so elicited, neither petitioner nor its counsel was on trial for pursuing it. Want of good judgment or good taste, or even misconduct on the part of either, was not an issue in the case for the jury, nor could it excuse like conduct on the part of respondents' counsel. See Tucker v. Henniker, 41 N.H. 317, 322; Mittleman v. Bartikowsky, 283 Pa. 485, 488; Mitchum v. Georgia, 11 Ga. 615, 629; Welch v. Union Central Life Ins. Co., 117 Iowa, 394, 404. An exhibition of any or all of these faults was not ground for a verdict in respondents' favor or for enhancing it.
Such a bitter and passionate attack on petitioner's conduct of the case, under circumstances tending to stir the resentment and arouse the prejudice of the jury, should have been promptly suppressed. See Masterson v. Chicago & N.W. Ry. Co., 102 Wis. 571, 574; Gulf, Colorado & S.F. Ry. Co. v. Butcher, 83 Tex. 309, 316; Tucker v. Henniker, supra at p. 322; Monroe v. Chicago & Alton R. Co., 297 Mo. 633, 644. The failure of the trial judge to sustain petitioner's objection or otherwise to make certain that the jury would disregard the appeal could only have left them with the impression that they might properly be influenced by it in rendering their verdict, and thus its prejudicial effect was enhanced. See Hall v. United States, 150 U. S. 76, 150 U. S. 81; Graves v. United States, 150 U. S. 118, 150 U. S. 121; Wilson v. United States, 149 U. S. 60, 149 U. S. 68. That the quoted remarks of respondents' counsel so plainly tended to excite prejudice as to be ground for reversal is, we think, not open to argument. The judgments must be reversed, with instructions to grant a new trial.
correcting the error. Brasfield v. United States, 272 U. S. 448, 272 U. S. 450.
As there must be a new trial, attention should be directed to other objectionable conduct by respondents' counsel in the course of the trial; their repeated assertion, without supporting evidence, that the defense was a "claim agent defense," references to petitioner as an "eastern railroad," and statements that the railroad had "come into this town" and that witnesses and records had been "sent on from New York" for the trial of the cause. Such remarks of counsel, and others of similar character, all tending to create an atmosphere of hostility toward petitioner as a railroad corporation located in another section of the country have been so often condemned as an appeal to sectional or local prejudice as to require no comment. See Cherry Creek Nat. Bank v. Fidelity & Casualty Co., supra; Dolph v. Lake Shore, etc., R. Co., 149 Mich. 278, 280; Southern R. Co. v. Simmons, 105 Va. 651, 665.
These writs of certiorari were granted on a petition signed by counsel for petitioner who did not participate in the trial. It stated that the cases were of importance and were such a departure "from the accepted and usual course of judicial proceedings as to call for an exercise of this Court's power of supervision." But his argument here was so inadequately prepared, and exhibited such lack of familiarity with the record, as not to be of assistance to the court, and in the argument of counsel on both sides who had participated in the trial below there was a want of that candor which is essential to the proper and adequate presentation of a cause in this Court. The occasion seems appropriate to remind counsel that the attempted presentation of cases without adequate preparation and with want of fairness and candor discredits the bar and obstructs the administration of justice.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
Typically, the issue of whether a party is bound by an arbitration agreement is raised in a judicial motion to compel under Section 4 of the Federal Arbitration Act (9 U.S.C. § 4). The issue also may be raised in a judicial application to stay an arbitration, as to which the Section 4 procedure applies as well. Occasionally, however, the issue is decided by an arbitrator in the first instance. When the matter eventually reaches a court — e.g., in the context of a post-arbitration motion to confirm or to vacate an award (FAA §§ 9, 10) — and the arbitrator’s decision regarding party arbitrability is to be reviewed, that facet of the judicial proceeding is likely to resemble one for an application under FAA § 4. That is, the judicial review will be de novo, the Section 4 procedure will likely be adopted, and the court will not be restricted to the record before the arbitrator — additional evidence will be permitted.
The 2017 decision in iPayment, Inc. v. 1st Americard, Inc., 2017 U.S. Dist. LEXIS 25625 (S.D.N.Y. Feb. 23, 2017), is illustrative. iPayment had petitioned to confirm an arbitration award against two non-signatories of the underlying arbitration agreement — (i) the sole shareholder and former president (KG) and (ii) the former CEO (GG), of 1st Americard. Ultimately, whether the award should be confirmed against the two individuals turned on whether corporate veil piercing was warranted so as to deem them bound by their company’s arbitration agreement. Id. at *1, *4. The arbitrator evidently had determined that veil piercing was warranted, and thereupon issued an award against those individuals.
In the confirmation proceeding, the court implied that there had been no clear and unmistakable showing that the parties had agreed to arbitrate arbitrability. See id. at *4. Therefore, de novo review of the arbitrator’s determination in that regard was appropriate. Cf. Kaplan v. First Options of Chi., 19 F.3d 1503, 1520 (3d Cir. 1994) (a court is not bound by an arbitrator’s determination of alter ego liability and should review the question de novo). “De novo review” in that context simply meant “review without the deference traditionally given to the decision of an arbitrator on the merits.” Id. at *5.
Furthermore, the court noted that it had previously determined that the de novoconsideration of the individuals’ alter ego “liability” was to be conducted “as if it were raised on a motion for summary judgment,” id. at *2, citing iPayment v. 1stAmericard, 2016 U.S. Dist. LEXIS 51058, with a trial to follow if there were a dispute of material fact, id. at *4. Thus, the procedure described in FAA § 4 apparently was adopted.
Finally, the court determined that the record for this de novo review would not be limited to what had been before the arbitrator. Among other things, the potential for trial implied the possibility of considering new evidence to address the factual issues, see id., and the court was also persuaded by the aforementioned decision in Kaplan v. First Options of Chi., Inc., 19 F.3d 1503 (3d Cir. 1994).
Utilizing the procedures described above, the court ultimately determined that veil piercing had been warranted and that the individuals were bound to arbitrate, and it thereupon confirmed the arbitral award against those individual respondents.

matches:
§ 4
§ 4
v.
v.
v.
§ 4
v.


DECIDED SEPTEMBER 6, 1984. REHEARING DENIED SEPTEMBER 25, 1984.
Divorce, etc. Fulton Superior Court. Before Judge Cooper.
William Lewis Spearman, for appellant.
Turner, Turner Turner, Jack P. Turner, Anne H. Jarrett, for appellee.
The Bermans were granted a divorce in DeKalb Superior Court in 1972. The final decree incorporated an agreement providing periodic alimony and child support for appellant, Mrs. Berman, and the couple's three sons who were in her custody. This is the Berman's ninth appearance before this court.
On March 3, 1981, appellee, Dr. Berman, filed a petition for modification of the alimony and child support agreement in Fulton County Superior Court. He alleged two grounds for modification: (1) a change in his income and financial status, see OCGA § 19-6-18 (a), and (2) the existence of a meretricious relationship, see OCGA § 19-6-19 (b). In April 1983, after almost two years of extensive discovery, the case was heard for five days by a Fulton County jury.
The jury, using a special verdict form, terminated appellant's alimony based on its finding that she was involved in a meretricious relationship. The jury did not require appellant to contribute to the support of her 17-year-old son who had elected to live with appellee.
Appellant's motion for a new trial was denied November 3, 1983, and we granted her application for discretionary appeal December 29, 1983. Appellant enumerates eight errors, only one of which has merit. Appellee filed a cross-appeal with two enumerations of error. They are without merit.
1. Appellant contends as her eighth enumeration of error that the trial court erred in charging the jury that it must either reduce or terminate her alimony if it found the existence of a meretricious relationship. We agree.
The modification statute, originally enacted in 1955, (Ga. L. 1955, p. 630) has been amended three times. (Ga. L. 1964, p. 713, § 1; Ga. L. 1977, p. 1253, § 1; Ga. L. 1979, p. 466, § 23). Subsection (a) contains language of instruction for the trier of fact. "After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded, by either party, may modify and revise the previous judgment." (Ga. L. 1979, p. 466, § 23). (Emphasis supplied.) We held, based on the legislature's use of the word "may," that "[t]he statute does not require a revision." Barker v. Barker, 233 Ga. 170 ( 210 S.E.2d 705) (1974). Subsequent to our decision in Barker, supra, the General Assembly added subsection (b), the so-called "live in lover" provision, which offered husbands obligated to provide alimony to former wives another ground to seek modification. It provided in pertinent part, "voluntary cohabitation of the former wife with a man shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former wife." (Ga. L. 1977, p. 1253, § 1 (b)). (Emphasis supplied.) During the 1979 session of the General Assembly, subsection (b) was amended to comply with the standards announced in Orr v. Orr, 440 U.S. 268 ( 99 S.C. 1102, 59 L.Ed.2d 306) (1979). The new wording of subsection (b) was amended to read, "voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions for periodic payments of permanent alimony for the support of such former spouse." (Ga. L. 1979, p. 466, § 23). (Emphasis supplied.) The instructions to the trier of fact in subsection (a) have remained unchanged. "It is a well settled canon of statutory construction that statutes are presumed to be enacted by the legislature with knowledge of existing law." Hart v. Owens-Illinois, 250 Ga. 397, 400 ( 297 S.E.2d 462) (1982). Following this rule of construction, we find that the legislators were aware of our decision in Barker, supra, when they provided the additional ground for modification (subsection (b)) in 1977, and when they amended it in 1979. Just as the trier of fact "may" modify on the grounds set forth in subsection (a), it "may" also modify on the grounds set forth in subsection (b). We held that, "[t]his provision does not mandate the termination of periodic alimony." Hurley v. Hurley, 249 Ga. 220, 221 ( 290 S.E.2d 70) (1982), and today we hold that it does not mandate reduction. Reduction of alimony, like termination, is an issue of fact for the jury to resolve. Here, the combination of the charge to the jury and the special verdict from forced the jury to either reduce or terminate. The decision of whether or not to modify is within the discretion of the trier of fact and should not be taken away from it. See Marsh v. Marsh, 243 Ga. 742 ( 256 S.E.2d 442) (1979).
Section I of the special verdict read: "A. ____ Dr. Merrill Berman should be granted a modification in his alimony payments because Donna B. Berman and ____ have been dwelling together continuously and openly in a meretricious relationship. B. ____ Dr. Merrill Berman should not be granted a modification in his alimony payments because Donna B. Berman and ____ have not been dwelling together continuously and openly in a meretricious relationship."
"Should you write an `X' in the space opposite Section IA . . . above, please complete the following: We the jury, find that alimony be reduced from $400 per month to $ ____ per month, or that alimony be terminated ____."
2. Appellant enumerates as errors 3, 5, and 7, refusal of the trial court to give requested charges.
"`A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.'" Kessel v. State, 236 Ga. 373, 374 ( 223 S.E.2d 811) (1976). The requested charges were incorrect, therefore, it was proper for the trial court to refuse them.
3. We find no merit in enumerations of error 1, 2, 4, and 6.
On cross-appeal, cross-appellant enumerates two errors.
1. Cross-appellant first contends that the trial court erred in refusing to charge the jury that the child support payments to cross-appellee on behalf of their son, who is in college, could be eliminated.
According to the agreement, cross-appellant is obligated to pay cross-appellee $200 per month as child support until "a child shall marry, die, enter the military service or become self-supporting." Cross-appellant argues that his son is either "self-supporting" or being supported by him, therefore, he should no longer be required to pay child support for the son to cross-appellee. There was no evidence that the son, in college, is self-supporting. Furthermore, there is no authority that would allow us to terminate child support payments to cross-appellee on behalf of the child because cross-appellant provides voluntary additional support to the child while in college. Contrary to cross-appellant's position we have held that voluntary payment of college expenses does not relieve the obligated parent from paying the required support. See Thomas v. Thomas, 236 Ga. 311, 312 ( 223 S.E.2d 691) (1976); Combs v. Combs, 216 Ga. 715, 716 ( 119 S.E.2d 341) (1961). We find no error.
2. Cross-appellant's second contention is that the verdict of the jury was in error in refusing to require cross-appellee to pay child support for the 17-year-old son in his custody. "[I]f there is any evidence to support the jury's verdict and court's judgment, the judgment will not be disturbed on appeal." Scott v. Scott, 243 Ga. 472, 473 ( 254 S.E.2d 852) (1979). The evidence in this case supported the jury's verdict, therefore, we find no error.
Judgment reversed as to Case No. 41004. Judgment affirmed as to Case No. 41005. All the Justices concur.
DECIDED SEPTEMBER 6, 1984 — REHEARING DENIED SEPTEMBER 25, 1984.