Commission Agenda Item No. 6
Presenter: Jarret Barker
Action
Civil Restitution Rules
Recommended Adoption of Proposed Changes
August 27, 2020
I. Executive Summary: With this item, the staff seeks adoption of proposed amendments to regulations governing the assessment of civil restitution values. The proposed rulemaking would eliminate the assessment of civil restitution for trophy wildlife species.
II. Discussion: Under Texas Parks and Wildlife Code section 12.301, a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the Texas Parks and Wildlife Code or a proclamation or regulation adopted under the Texas Parks and Wildlife 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 (commonly referred to as “civil restitution”).
In 1996, the Texas Parks and Wildlife Commission (Commission) adopted rules providing for enhanced civil restitution values of trophy specimens of white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep taken in violation of applicable laws, which reflected the relative rarity of such animals at that time. The Texas Parks and Wildlife Department (TPWD) has determined that the during the intervening years, techniques of wildlife management have become more effective and much more widely practiced, which, in concert with successful TPWD programs such as the Managed Lands Deer Program and other technical guidance efforts, have led not only to increased numbers of so-called “trophy” animals, but to antler and horn characteristics of individual trophy animals that are far more impressive than what has occurred in the past. Therefore, TPWD has determined that the original justification for trophy restitution no longer exists and the provisions imposing civil restitution for trophy animals are no longer necessary.
The proposed rules appeared in the July 17, 2020, issue of the Texas Register (45 TexReg 4950). A summary of public comment on the proposed rules will be presented at the time of the hearing.
III. Recommendation: The staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts the repeal of §69.30, concerning Trophy Wildlife Species, and an amendment to §69.20, concerning Fish and Wildlife Values, with changes as necessary to the proposed text as published in the July 17, 2020 issue of the Texas Register (45 TexReg 4950).”
Attachment – 1
Commission Agenda Item No. 6
Exhibit A
CIVIL RESTITUTION RULES – TROPHY WILDLIFE SPECIES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (the department) proposes the repeal of §69.30, concerning Trophy Wildlife Species and an amendment to §69.20, concerning Application. The proposed repeal and amendment would function to eliminate provisions governing the imposition of enhanced civil restitution penalties for trophy specimens of white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep taken in violation of the Texas Parks and Wildlife Code or rules of the commission.
Under Parks and Wildlife Code, §12.301, a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the Parks and Wildlife Code or a proclamation or regulation adopted under the Parks and Wildlife 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. Under Parks and Wildlife Code, §12.302, the Parks and Wildlife Commission is required to adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds, and animals, which are located at 31 TAC Chapter 69, Subchapter B. Those values are commonly referred to as “civil restitution values.”
In 1996 the commission adopted rules providing for enhanced civil restitution values of trophy specimens of white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep taken in violation of applicable laws, which reflected the relative rarity of such animals at that time. The department has determined that the during the intervening years, techniques of wildlife management have become more effective and much more widely practiced, which, in concert with successful department programs such as the Managed Lands Deer Program and other technical guidance efforts, have led not only to increased numbers of so-called “trophy” animals, but to antler and horn characteristics of individual trophy animals that are far more impressive than what has occurred in the past. Therefore, the department has determined that the original justification for trophy restitution no longer exists and the provisions imposing civil restitution for trophy animals are no longer necessary.
2. Fiscal Note.
Kevin Davis, Chief of Staff for the Law Enforcement Division, has determined that for each of the first five years that the rules are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules. The original purpose of the rule being repealed is to recover the replacement cost of trophy wildlife taken in violation of the law. Because the department has determined that the original reason for the rule no longer exists, the current base replacement value for each species of animal is now sufficient to satisfy the requirements.
3. Public Benefit/Cost Note.
Chief Davis also has determined that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the elimination of unnecessary regulations.
There will be no adverse economic effects on persons required to comply with the rules as proposed.
(B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department has determined that no small businesses, microbusiness, or rural communities will be affected by the proposed rules. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.
(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:
(1) not create a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create a new regulation;
(6) repeal an existing regulation but not expand or limit an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposal may be submitted to Chief Kevin Davis (512) 389-4846, e-mail: kevin.davis@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The repeal is proposed under Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of fish, shellfish, reptiles, amphibians, birds, and animals injured or destroyed in violation of the Parks and Wildlife Code or rules of the commission.
The proposed repeal affects Parks and Wildlife Code, Chapter 12.
§69.30. Trophy Wildlife Species.
This agency hereby certifies that the repeal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
The amendment is proposed under Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of fish, shellfish, reptiles, amphibians, birds, and animals injured or destroyed in violation of the Parks and Wildlife Code or rules of the commission.
The proposed amendment affects Parks and Wildlife Code, Chapter 12.
6. Rule Text.
§69.20. Application.
(a) Rules under this subchapter establish guidelines for measuring the monetary value of each individual of any species of aquatic life or wildlife:
(1) – (2) (No change.)
(b) The values assigned to wildlife species or aquatic species, including any value added for endangered or threatened species [or trophy game animals], and values of other species not listed but derived by application of these guidelines are prima facie evidence of damages recoverable for the unlawful catching, killing, possession, injury or taking of such species.
This agency hereby certifies the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on