Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 65.
WILDLIFE
Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION
1.
GENERAL PROVISIONS
31 TAC §65.11
The Texas Parks and Wildlife Commission adopts an amendment
to §65.11, concerning Lawful Means, without changes to the proposed text
as published in the February 25, 2005, issue of the
Texas Register
(30 TexReg 1028).
The amendment to §65.11, concerning Lawful Means, which adds a provision
to prohibit the take or attempted take of wildlife resources by anyone not
personally present at the location where the take or attempted take occurs,
is necessary for the department to be able to ensure compliance with laws
regarding hunting license possession and use. The department has become aware
of recent adaptations of firearms and computer systems that would make it
technologically possible for persons to take wildlife resources by use of
electromechanical interfaces while not being physically present at the location
where the wildlife resources are taken. The amendment is necessary because
there is no way for the department to verify compliance with hunting license
laws if the participating party is not physically present when and where a
wildlife resource is hunted. The amendment also affects rules regarding the
use of vehicles to hunt desert bighorn sheep. The current rule prohibits the
use of a motorized conveyance to locate or hunt desert bighorn sheep. Until
recently, the hunting of bighorn sheep was conducted exclusively on department
lands, where the department has the authority to prohibit hunting from vehicles.
However, in recent years the department has issued permits that authorize
the hunting of bighorn sheep on private property. Under the provisions of
Parks and Wildlife Code, §62.003, persons may hunt from a vehicle on
private property. The proposed amendment would make the regulation consistent
with the statute.
The rule will function by prohibiting the take of wildlife resources by
any person who is not personally present at the location where the take or
attempted take occurs and who does not personally operate the means of take.
The amendment also would function by making the rules governing the hunting
of desert bighorn sheep consistent with statutory provisions.
The department received 18 comments in opposition to the adoption of the
portion of the rule governing remote-controlled hunting. Ten of those commenting
provided an elaboration of the reasons for opposing adoption. The department's
response to those comments is as follows.
One commenter opposed adoption of the proposed rule and stated that the
assumption that licenses can't be validated is incorrect. The commenter went
on to say that license data could be required to be entered prior to the system
allowing control of the firearm, followed by a simple validation scheme in
conjunction with the TPWD servers. The commenter further stated that the department's
position was like saying that a store can't validate a credit card number
and balance if the customer isn't personally present. The department disagrees
with the commenter and responds that license validation isn't the issue; compliance
with rules governing license possession and use is the issue. It is impossible
for officials in Texas to verify that a person hunting via a remote-controlled
firearm is or is not the person to whom a license was issued. The department
also responds that the credit card analogy is not apposite, since the validation
of a credit card establishes only whether the card is valid and the account
balance is sufficient, not the identity of the person presenting the card.
The department also responds that even if license compliance could be verified
via electronic means, the cost to the department could not be justified given
the minuscule number of persons likely to use such systems. No changes were
made as a result of the comment.
One commenter opposed adoption of the portion of the rule applying to remote-controlled
hunting and stated: "What if there's an emergency and a person has to leave
in a hurry, the form in the Rule book is fine, If a Game Warden checks someone
and this is the case make it a requirement for him to follow up on it." The
department is unable to determine the intent of the comment and disagrees
that any change is necessary. No changes were made as a result of the comment.
The department received eight additional comments opposing adoption of
the portion of the proposed rule prohibiting remote-controlled hunting; however,
the comments contained unambiguous elaborations to the effect that the commenters
actually disapproved of the use of remotely controlled firearms for hunting.
The department can only surmise that the commenters actually opposed remote-controlled
hunting and did not understand that the proposal would prohibit, rather than
allow, remote-controlled hunting. In any event, no changes were made as a
result of the comments.
The department received eight additional comments opposing adoption of
the portion of the proposed rule addressing remote-controlled hunting. The
commenters did not elaborate upon their rationale for opposition. The department
disagrees with the comments. No changes were made as a result of the comments.
The department received 320 comments supporting adoption of the portion
of the proposed rule affecting hunting by remote control.
The Texas Wildlife Association and the Texas Deer Association supported
adoption of the portion of the rule governing remote-controlled hunting.
The department received 57 comments opposing adoption of the portion of
the proposed rule that would allow the use of motorized conveyances to locate
or hunt bighorn sheep. The department disagrees with the comments and responds
that hunting from a vehicle on private property is lawful under Parks and
Wildlife Code, §62.003. No changes were made as a result of the comments.
The amendment is adopted under the authority of Parks and Wildlife
Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act
of 1983), which provides the commission with authority to regulate the periods
of time when it is lawful to hunt, take, or possess game animals, game birds,
or aquatic animal life and the means, methods, and places in which it is lawful
to hunt, take, or possess game animals, game birds, or aquatic animal life.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 8, 2005.
TRD-200501481
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Commission
Effective date: April 28, 2005
Proposal publication date: February 25, 2005
For further information, please call: (512) 389-4775
Chapter 523.
AGRICULTURAL AND SILVICULTURAL WATER QUALITY MANAGEMENT
Part 17.
TEXAS STATE SOIL AND WATER CONSERVATION BOARD