Reptile & Amphibian Forums

Let me preface this issue with "I do not advocate breaking the law". Without sounding militant or "T", I believe that there is a way to deal with our legal issues and TPWD. Most of the areas that we are in are very rural. When LE issues a violation for any infraction, most of them go to a Justice of the Peace for that precint. Those JP's are elected by the local community not appointed by TPWD, DPS, Sherriff, or politicians. If the communities will let the JP know that their business's are in jeopardy, they may take a hard look at the evidence (if any)being presented on the violation. Us providing evidence either verbal or actual to the LE agent, we hurt our own case. You submitting to a search or saying you are collecting reptiles only makes it easy for LE to make their case. If they find something then they think they got you and make it difficult for you. If they do not find anything, it is still easy on them because they just walk away. There was no effort on their part and even worse there is no one that scrutinizes if what they are doing is right. If you do not agree to search, LE will have to get a search warrant. To do so they will have to find the judge to get it. After dark (late night) may not be too easy for them to get a warrant without some pretty good probable cause. If they do get the warrant and find nothing, how long do you think it will take for that judge to not issue any more search warrants to that officer. On the other side of the coin, if LE witnesses you catching, bagging and putting a vertebrate animal into your vehicle you can expect they will have a pretty good case. IMHO, if you are ticketed and LE did not see you actually capturing something, you should take it to court. Make LE prove their case. Now if you are cited for a traffic violation because of erratic driving or something else like that, you will have a different battle. Know and abide by the traffic rules and be as safe as you possibly can out there.

My personal experience with LE has been rather good when I did not violate a traffic code. I have answered questions and allowed searches. I have not been cited for a game or non-game animal violation. I admit that I have made it easy for them. I am changing my mind about that process. I wish there was a way for the private citizen to find out how much money has been spent by the State of Texas pursuing us hobbyist trying to collect a fine that might, maybe, could possibly, be as high as $100 when drug runners and illegal immigrants are crossing our borders with little or no consequence. I wonder what the general population would think about that expenditure and whether or not they thought it was worth it. An illegal immigrant crosses the border, cuts fences, steals from ranch houses and anywhere else they can and when they are caught they get a free ride home, only so they can do it again. If I (a US Citizen) gets caught across a fence on private property (by the way doing no damage), I could and probably would be charged with criminal tresspass and spend at least the night in jail and face prosecution. No telling how long I would spend in jail if I were caught at a ranch house stealing something, if I survived the ranchers shotgun. JUSTICE?????? Something has got to change and if we do not speak up about it, know our right, and execute our rights, nothing will change!!!

ECTimaeus

There’s a lot of public misinformation about the Texas Game Warden’s search powers. The inaccurate sources include blogs, forums and even newspaper articles. I think I’ve found an accurate summary and I’ve provided a link to the post below. When you’re on it scroll down and look for a post by Boyd Kennedy on 4-28-05. This conclusion is supported by a reading of Texas law, including the three search authorization sections found in the Texas Parks and Wildlife Code: 62.007, 12.102 and 12.104, as well as the constraints placed on law enforcement by US Supreme Court cases.

Bottom line: it APPEARS that searches of private residences, temporary residences (such as tents and motel rooms) and vehicles on public roads are limited by standards required of other law enforcement personnel.

Robert

Brief summary of search powers

The only exception I can think of at all would be when you agree to conditions on a permit of some kind that gives them extra authority to "inspect", and they never miss a chance to give themselves that authority on any permit issued by TP&W.
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Herp Conservation Unlimited

If people really learn from their mistakes, I should be like the smartest guy in the world

What I read it saying is "The statute specifically excludes residences and temporary residences from its reach, as well as vehicles on public roadways."

This sounds to me that an inspection of a vehicle on a public roadway may not be done without permission or a warrant.

Whatcha think???

ECTimaeus

I don’t pretend to be aware of the protections afforded a person’s residence or vehicle, but my guess is the residence enjoys the most protection. Here are the code sections that are applicable to vehicle searches:

Sec. 62.007. STOPPING FOR SEARCH. (a) An authorized employee of the department may search the game bag, receptacle, automobile, or other vehicle if he has reason to believe that the bag, receptacle, automobile, or vehicle contains game unlawfully killed or taken.

(b) A person who refuses to allow a search or refuses to stop a vehicle when requested to do so by an authorized employee commits an offense.

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.

As was pointed out below, Section 62.007 may be applicable to game animals, while Section 12.104 may be applicable to nongame animals. That said, I think paragraph Section 62.007(b), in so much as it relates to the refusal of the search, may be unconstitutional. The standard for Section 12.104 is reasonable, articulable suspicion. Reasonable, articulable suspicion is the standard required of ALL law enforcement for investigatory stops (stopping a vehicle). Google the term and you’ll find a lot of literature on the subject, including articles that refer to a few important Supreme Court decisions.

Robert

Law enforcement can perform a warrantless search of a vehicle, but it requires probable cause. It looks like Wardens need reasonable, articulable suspicion to stop a vehicle, but require probable cause (a greater standard) to engage in a full search unless consent is given. I've provided a good link to the motor vehicle exception.

Robert
Motor vehicle exception

It is from Boyd Kennedy, who is the current Division Attorney as listed on this page.

Would it be a good suggestion to inform him / his office each time an illegal search is conducted for reptiles? He is in the business of keeping the department from getting tangled up in lawsuits, so he might take some action to keep the field LE honest.
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Herp Conservation Unlimited

If people really learn from their mistakes, I should be like the smartest guy in the world

I think he could be an extremely useful resource, so you boys should go for it.

Robert