Reptile & Amphibian Forums

The following is an e-mail conversation with Robert Macdonald Texas Parks and Wildlife Department Regulations Coordinator. I hope you find it helpful. I posted the attached file at the end of the e-mails.
Mark Pyle
DFWHS
Education Director

Dear Mr. Pyle,

The new nongame regulations were adopted by the Texas Parks and Wildlife Commission in May, 2007, but have not been filed with the Secretary of State. We anticipate filing the rules very soon and they should be in effect by October 1 or shortly thereafter (by state law, regulations take effect 20 days after filing with the Secretary of State). The new rules contain provisions for grandfathering existing private collections of specimens not on the white list. When the rules take effect, it will be lawful for any person to possess up to six specimens of any species on the white list for personal use only. Persons who possess specimens in excess of this limit will have one year to contact the department to let us know who and where they are and what they have, and will be allowed to continue to possess, but commercial activity will be prohibited.

For the scenario of a rescued herp that would put someone in excess of the possession limit, the person would have to locate a permitted wildlife rehabilitator who is authorized by the department to accept herps, or find someone who could possess the herp without exceeding the possession limit. The department understands that there will be increase occurring within captive populations. Such increase will be lawful to possess, but commercial activity will be prohibited. The department is working on development of a captive breeding permit (that will allow sale) to address the issue. We do not know when we will be ready to present this permit for public comment, but it will be within a year of the effective date of the new rules. The department understands that there are many hobbyists out there, and we don’t want to criminalize them, but we strongly urge everyone to refrain from any commercial activity involving species not on the white list until we can implement a captive breeding permit.

The new law concerning venomous snakes and constrictors was sponsored by Rep. Harvey Hilderbran (P.O. Box 2910, Austin, Texas, 78768. (512) 463-0563). Under the provisions of the law, the department is required to have regulations in effect by April 1, 2008. At this point the department is very early in the process of developing the rules, so there isn’t much I can tell you (fees, reports, etc.) other than that the law requires two permits (commercial and non-commercial). I have attached a copy of the part of House Bill 12 that applies. It is pretty self-explanatory. The penalty for a Class C Misdemeanor is a fine of not less than $25 nor more than $500. The penalty for a Class A Misdemeanor is a fine of not less than $500 nor more than $4,000; and/or confinement in jail for a term not to exceed one year.

The road-hunting provisions of HB 12 are in effect right now. The Parks and Wildlife Code defines “hunting” as “the capture, trap, take, or kill, or an attempt to capture, trap, take, or kill.” So, a person photographing snakes on a roadside isn’t hunting. Similarly, since possession of accoutrements used to collect snakes isn’t prima facie evidence of a violation, there is no violation for possessing such accoutrements (provided the person is not hunting). I cannot give you an ironclad answer for each and every scenario there might be, but the best advice I can give you is that the surest way to avoid being cited for a violation is to avoid any situation that could be interpreted as road hunting. For instance, don’t stop to photograph or a snake or help a snake across the road if you’ve got a light rig and a snake hook. Use a little common sense and you should be fine.

If you have any other questions, please do not hesitate to contact me at this e-mail address or by phone at (512) 389-4775.

Sincerely,

Robert Macdonald

Regulations Coordinator

Texas Parks and Wildlife Department

-----Original Message-----
From: Mark Pyle [mailto:ratsnake@charter.net]
Sent: Tuesday, September 04, 2007 10:09 PM
To: Robert Macdonald
Subject: New law questions

Mr. Macdonald

I am the education director of the Dallas- FT. worth Herpetological Society. Many of our members have been asking questions about the new regulations. There is a lot of confusion about the updated non-game permitting system, new road hunting law, and non-native permit. I have not been able to find official answers to many of these questions. I would like to get the official word to publish in our newsletter and make it available to anyone that needs to know.

There has been some discussion about the updated non-game permits. Did the new version go into effect on September first? Is there a process for grandfathering any existing collections of herps not on the whitelist? Is there and if so what is the limit on personal possession of herps not on the whitelist? What is to be done with rescued animals that would put a rescuer over the limit when the herp is not on the whitelist? What happens to offspring of unintentionally breed or those that are already gravid when collected or received as rescues that are not on the whitelist? Is there any work being done on a captive breeding permit?

One of the riders on HB12 establishes a permitting system for non-native venomous and the top 5 largest constrictors. I know very little about this new law. Did it also go into effect on September first? Where can I find info about this law? I would like to know how much a permit is, what do you need to do to receive one, what is the fine, and is a collection subject to inspection at anytime?

The law prohibiting hunting from the roadway was passed as a rider on HB12. There are many questions about this law. When does it go into effect? I have been told that no citation will be given to someone helping a herp off of the road. Will a citation be given in this situation? I have also heard that it is ok to pick up herps killed on the road. Will this be allowed? Will we be allowed to photograph a herp on the roadway or right-of-way? I have heard that it would be ok as long as you do not touch it? What if you keep the herp until daylight, photograph it then release it? If you have collecting material in your car and a warden sees it will you automatically be ticketed for hunting from the roadway?

I thank you for your time. I know there are a lot of questions in this e-mail but people expect me to know the answers. This is the best way I know to educate myself and everyone else. Your response is greatly appreciated.

Mark Pyle

DFWHS

Education Director

SECTION 41. Chapter 43, Parks and Wildlife Code, is amended by adding Subchapter V to read as follows:
SUBCHAPTER V. NONINDIGENOUS SNAKE PERMIT
Sec. 43.851. PERMIT. (a) The commission by rule shall establish permits that allow permit holders to possess or transport in this state a live nonindigenous:
(1) venomous snake; or
(2) constrictor that is one of the following:
(A) African rock python, Python sebae;
(B) Asiatic rock python, Python molurus;
(C) green anaconda, Eunectes murinus;
(D) reticulated python, Python reticulatus; or
(E) southern African python, Python natalensis.
(b) The commission shall establish separate permits for recreational and commercial purposes.
(c) A permit under this subchapter is not required for:
(1) a state or county official performing an official duty;
(2) a licensed zoo that possesses or transports a snake for exhibition or scientific purposes;
(3) a research facility, including a university, licensed under the Animal Welfare Act (7 U.S.C. Section 2131 et seq.) that possesses or transports a snake for scientific purposes; or
(4) a person who assists a department employee in the handling or transport of a snake under this subchapter.
(d) Except as provided by Subsection (c), a person may not possess or transport in this state a snake described by Subsection (a) without a permit issued by the department under this subchapter.
(e) A person convicted of a violation of this subchapter or a rule adopted under this subchapter may not obtain a permit before the fifth anniversary of the date of the conviction.
Sec. 43.852. INSPECTION OF PERMIT AND RECORDS. An authorized department employee may inspect at any time and without a warrant a permit or any records required by this subchapter.
Sec. 43.853. RELEASE FROM CAPTIVITY. A person may not intentionally, knowingly, recklessly, or with criminal negligence release or allow the release from captivity of a snake covered by this subchapter.
Sec. 43.854. SEIZURE OF CONTRABAND; FINANCIAL RESPONSIBILITY. (a) The department may arrange for the seizure and removal of a snake covered by this subchapter from a person who possesses the snake without the required permit. The person is responsible for any costs incurred by the department in the seizure, removal, and disposition of the snake.
(b) A department employee is not required to handle, remove, or dispose of the snake.
(c) The department may contract with a person who has knowledge of or expertise in the handling of a snake covered by this subchapter to assist the department in the handling, removal, and disposition of the snake.
(d) The department, including an enforcement officer of the department, who acts under this section is not liable in a civil action for the seizure, sale, donation, or other disposition of the snake.
Sec. 43.855. RULES. The commission may adopt rules to implement this subchapter, including rules to govern:
(1) the possession or transport of a snake covered by this subchapter;
(2) permit application forms, fees, and procedures;
(3) the release of the snake;
(4) reports that the department may require a permit holder to submit to the department; and
(5) other matters the commission considers necessary.
Sec. 43.856. OFFENSE. (a) Except as provided by Subsection (c), a person who violates this subchapter or a rule adopted under this subchapter commits an offense that is a Class C Parks and Wildlife Code misdemeanor.
(b) A person who violates Section 43.853 or a rule adopted to implement Section 43.853 commits an offense that is a Class A Parks and Wildlife Code misdemeanor.

So if I have a hook in the car, or a flashlight I can not even stop to photograph a herp? That pail won’t hold much water....

Lance

>>So if I have a hook in the car, or a flashlight I can not even stop to photograph a herp? That pail won’t hold much water....

I sometimes have a fishing pole and tackle box in my car. I guess I can't carry those anymore or I might get cited for fishing from the road too.

There are sometimes discrepancies between what's printed in the "Outdoor Annual" (the brochure you can pick up when getting your license) and the official TPWD Code, and the Code takes precedence.

I seem to recall in previous years the Annual defining "hunt" to include "pursuit," which means stalking or chasing a herp to get a better photo would be considered "hunting." However, in this year's Annual, "pursuit" is missing, implying the aforementioned photo-op type activity is now legal--did the Code change also to reflect this?

-----
Chris McMartin
www.mcmartinville.com
I'm Not a Herpetologist, but I Play One on the Internet

I think you are mixing up states. Other states have included pursuit in hunting but I don't think Texas ever has. Anyways IMHO pursuit can only occur after you have seen the animal and make a move for it. I don't think seeking is the same as pursuit otherwise it would be illegal to attempt to view any wildlife, merely hiking a trail with hopes of seeing wildlife would become illegal.

>>I think you are mixing up states. Other states have included pursuit in hunting but I don't think Texas ever has.

It's possible; I'd have to hunt all over the house to look up my previous Annuals, if I didn't already get rid of them.

Anyways IMHO pursuit can only occur after you have seen the animal and make a move for it.

Well, it's hard to photograph an animal you haven't seen.

I don't think seeking is the same as pursuit otherwise it would be illegal to attempt to view any wildlife, merely hiking a trail with hopes of seeing wildlife would become illegal.

Bingo--by including "pursuit" that opens the door for selective enforcement of the law (I never hear about birders getting harrassed, but often hear of herpers getting hassled).

At any rate, an email from TPWD telling us to "use common sense" just shows how unenforceable/dumb the new reg really is--"common sense" has no place in law (other laws are much more specific and therefore easy to determine if they're being followed or broken); if everyone "used common sense" we wouldn't NEED a lot of the laws we have.

-----
Chris McMartin
www.mcmartinville.com
I'm Not a Herpetologist, but I Play One on the Internet

At any rate, an email from TPWD telling us to "use common sense" just shows how unenforceable/dumb the new reg really is--"common sense" has no place in law (other laws are much more specific and therefore easy to determine if they're being followed or broken); if everyone "used common sense" we wouldn't NEED a lot of the laws we have,

We don't need them NOW !!

"The Parks and Wildlife Code defines “hunting” as “the capture, trap, take, or kill, or an attempt to capture, trap, take, or kill.” So, a person photographing snakes on a roadside isn’t hunting. Similarly, since possession of accoutrements used to collect snakes isn’t prima facie evidence of a violation, there is no violation for possessing such accoutrements (provided the person is not hunting). I cannot give you an ironclad answer for each and every scenario there might be, but the best advice I can give you is that the surest way to avoid being cited for a violation is to avoid any situation that could be interpreted as road hunting. For instance, don’t stop to photograph or a snake or help a snake across the road if you’ve got a light rig and a snake hook. Use a little common sense and you should be fine."

LOL! So, photographing snakes isn't hunting. Having herping accessories isn't hunting. But we shouldn't photograph snakes while having herping accessories? Even though we still wouldn't be hunting.

Sounds to me like he's saying it's "common sense" to assume that you might get cited for violating these regulations even if you aren't, in fact, violating them.

Patrick

My take upon reading the email is, if you are photographing a snake on the side of the road, and you have your hook/light/bag in hand then you are in violation. If it's in your car, you're okay.

>Similarly, since possession of accoutrements used to collect snakes isn’t prima facie evidence of a violation, there is no violation for possessing such accoutrements (provided the person is not hunting)

It actually sounds like they have to catch you physically touching the snake as it is not against ANY law to have a snake hook in your hand. It is a case of innocent until PROVEN guilty rather than guilty until proven innocent.

All the exceptions they are saying simply proves that the law was never about safety but rather about generating the perception that they are protecting wildlife (while at the same time selling off land that was donated for permanent conservation). Typical political scumbags.

Cheers
B
-----
Dr. Bryan Grieg Fry
~~~~~~~~~~~~~~~~~~~~~~
Department of Biochemistry,
Bio21 Institute,
University of Melbourne
~~~~~~~~~~~~~~~~~~~~~~
http://www.venomdoc.com

"My take upon reading the email is, if you are photographing a snake on the side of the road, and you have your hook/light/bag in hand then you are in violation. If it's in your car, you're okay."

My take is that you're only in violation if you're hunting (i.e., taking critters), but that an LE officer might *think* that you're in violation if you're out there going after herps with a hook & so forth, since it might *look like* you're hunting.

IOW, Mr. Macdonald is suggesting that we shouldn't look like we're hunting or else we might receive erroneous tickets. His advice is good, to some extent, but he implicitly acknowledges poor enforcability for these regulations.

Patrick

I think there is an error in the letter from Mr. McDonald regarding the white list. Unless something has radically changed in the last few weeks, the limitation to 6 specimens is to animals NOT on the white list. The limitation on sale of offspring is also to non-white list animals until a permit system is established. As I understand it, White List species can be kept w/o a permit up to 25 animals in aggregate and offspring sold. If Parks and Wildlife has changed the limit to 6 for white list animals with no sale of wild caught or captive bred then we have another big problem. I can't confirm my belief that Mr. McDonald's letter is in error regarding the white list until next week.
Richard