Reptile & Amphibian Forums

Not a good plan:

The law is on the books, it is clear and does not leave any room to wiggle around like that. You will likely not win in court unless you were not actually observed taking an animal and did not admit to a violation. (such as cited for an intent to hunt)..

Just my thoughts on it, fighting the battle from that side will not work very well. I think the folks that plan to attack it that way have some nards, but I do not think it will end well.

I think we have other very solid plans that deserve more attention than taking one for the team. We need to shed the whole plan of any commercial take on the ROW, limit that activity to private lands, and get our hobby in favor with public perception.

BTW, anybody from out of state, if you take one for the team after you get home with an animal taken in violation... You are in deep doodoo with federal violations that have penalties far ahead of the state offense. If you are caught in state taking one for the team then standard pain is applied.

Bottom line, let us put this plan on the very back burner. If you want to be active on that side get LE and the JP to agree that a violation is only if take is observed, not seeking..

Lance

I agree with Lance. The commercial take issue will kill the hobby. I know it is frustrating but we need to have the law changed to bnefit the majority. As an attorney, I can almost predict what will happen to those who intentionally violate the law. You will be found guilty in JP court and will not win the appeal. Unfortunately, the law in my view is not unconstitutional or invalid. If we press for commercial harvest we will play right into the hands of the people who proposed this law. My view is that we need to protect the hobby as best we can and get the law changed. Also it is counterproductive to challenge LE in the field. People who do are hurting not only themselves but everybody else.
Richard

Any legal challenge (due process) to stay the effective enforcement date until Sept 1 for licenses acquired before this became law (Jun 15)?

R

>>I agree with Lance. The commercial take issue will kill the hobby. I know it is frustrating but we need to have the law changed to bnefit the majority. As an attorney, I can almost predict what will happen to those who intentionally violate the law. You will be found guilty in JP court and will not win the appeal. Unfortunately, the law in my view is not unconstitutional or invalid. If we press for commercial harvest we will play right into the hands of the people who proposed this law. My view is that we need to protect the hobby as best we can and get the law changed. Also it is counterproductive to challenge LE in the field. People who do are hurting not only themselves but everybody else.
>>Richard

Also lawyer here, but not admitted in Texas.

Anyone ever challenged the "intent to hunt" part on unconstitutional vagueness??
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Lloyd Heilbrunn

Palm Beach Gardens, Fl.

I would like to hear an answer from this perspective myself.
Todd Hughes

Lloyd,

Is there any way to enjoin enforcement until Sept 1 by filing suit and getting an injuction in federal court for the significant and material breach of current license holder's rights/privileges? The license year is effective for Sept 1 - Aug 31, and this became law Jun 15. How about lack of due process? Anything????

Robert

I'm a civil lawyer,not criminal,and not a Texas one.But in Florida you could make the POSSIBLE argument that it improperly retroactively attacks vested rights.

Worth consulting with Texas lawyer with experience in these things, about these issues, to do the needed research.

It is also possible a skilled Texas lawyer with connections could get an agreement to push back the enforcement date so as to avoid just such a challenge in court.

CYA:The above is NOT intended to be relied upon as legal advice.
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Lloyd Heilbrunn

Palm Beach Gardens, Fl.

Thank you much! I agree it's worth looking into because at this point there's not a whole lot of OTHER options

Robert

Richard, why does it not sound unconstitutional? Seems it infringes on rights we already had, and it was sneaked in against all votes and time expirations. What makes it a "good" law as in sound?
Todd Hughes

The problem we have is that the legislature has inherit authority to waive its procedures. By vote the house and senate allowed such a waiver in this case. Certainly, it was a classic example of a politition circumventing standard procedure but from what I can tell it was not an illegal act. Also, several people have raised the issue of having purchased licenses and now being forbidden to collect on roads and right of ways. I do not believe that this issue will support legal action because the licenses are still valid. The legislature has only restricted areas where herps can be collected. I wish I could give a better answer but I still believe we have to have this law changed next session. Even if someone were able to mount a constitutional challenge we are looking at a huge expense and a minimum two to three year timetable. Also, for those who have asked it is my understanding that you cannot sue the state for breach of contract. I realixe how angry and frustrated everyone is but attempting to find "loop-holes" may be great in theory but in practice I do not think we can win that way.
Richard

When Hilderbran tells Estes to sit on the bill in Senate committee until it dies, is that legal?

Forks

What about the fact that TPWD is mandated to provide hunting opportunities and with no public hunting areas open to herpers they are not fulfilling their mandate? This is why they have wildlife management areas. All game hunters do not pay to hunt on private land but there is still a fee for WMAs.

Thoughts?

Mike Welker
El Paso, TX

The fact that the bill was held is not actionable. I have not explored the possibility of an ethics violation but I don't think we have the makings of a lawsuit. As to the public hunting lands issue. If TPWD has a mandate then it would be possible to seek an injunction to force the Dept. to open public lands. This would be costly and time consuming. My concern with legal actions is that TPWD and the legislature could ban or restrict the collection of herps even further.Take a look at the laws on the books for example in Tenn. and Georgia, Rhode Island, Maine, Oregon etc. You will see some states with severe restrictions on collecting native species.
Richard

As I see it, we already have the restrictions in place, unless one knows of someone who would let you hunt their property with or without a fee. There is no place left for the average herper to enjoy what other Texans can do with or without a fee. That is the crux as I see it, we are now going to have to lease land to hunt non game animals that previously had been proven to be abundant. We actually manage the resource by moving animals off the road, for however long the animal lasts, it may have a chance to breed or get smashed 30 seconds later, but at least we do something. Taking animals from the road or cuts cannot compare with the vastness of private/state owned land we never had access to. There are probably enough animals in captivity to support almost all captive breeding programs if they were ever needed, but then Texas would need us! Hmmm, I couldn't possibly make thousands of dollars, but I know I've spent that looking! It is a shame, that many people in the supply industries will take a hit as well, won't need as many cages, lights, substrate, food items, etc. We are talking livelihoods for many people. I just think that there is something rotten in Denmark, and we can sniff it out if we are dilligent. Define unconstitutional, because I may not know how it applies under the law, but this sure feels like we had a right and it was taken without explanation and with no supporting evidence that other animals would suffer if we take herps!? I guess there will be many more ringtails and skunks than there already are, and that is a ton! I will buy my license to hunt private property and look for more blonde tarantulas, I guess!
Todd Hughes
Todd Hughes

That is a Rio Grand Gold trantula.

ECTimaeus

heheh, just a joke about "morphs"
Todd Hughes