• Matthew A. Jirkovsky

Hunting - No Right to Retrieve Game Animals

Updated: Oct 22

Whether you are hunting deer, hogs, birds, or other animals, you should be made aware of what you can and cannot do with respect to retrieving lawfully killed or wounded wild animals. You cannot retrieve a dead or wounded animal without the landowner's consent.


Common law classifies animals into the following two groups:

  • domestic animals (domitae naturae or mansuetae naturae)

  • wild animals (ferae naturae)

This blog post concerns wild animals in Texas.


Ownership of Wild Animals, generally.


The State of Texas technically 'owns' all wildlife in Texas. This is the short and simple answer.

Wild animals belong to the State, and no individual property rights exist in them as long as they remain wild, unconfined, and undomesticated...but property rights can arise when an animal is legally removed from its ‘natural liberty’ and subjected to ‘man’s dominion.'

The complex answer distinguishes "ownership" and "common ownership." Though, for practical purposes, the simple answer will do just fine.


Most of the common law in the United States is borrowed from English law. There, they use the theory of 'common ownership' for wild animals. As such, private individuals may reduce part of the common ownership to possession, therefore acquiring qualified ownership in it (subject to government regulation).


In America, we kept this theory. That is, the wild animals are held in trust for the benefit of the people. As quoted in a U.S. Supreme Court case from 1896:


"The wild game within a state belongs to the people in their collective sovereign capacity. It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good."


Texas adopted this theory in 1840. This concept is codified in statute, “All wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state are the property of the people of this state.” Tex. Parks & Wild. Code § 1.011(a).


In sum, the people own the wildlife subject to state regulation. The State acts as a trustee of the wildlife on behalf of the people to ensure that the wildlife are preserved. This is called the 'Public Trust Doctrine.'


You Own what you Lawfully Kill, generally.


In Texas, and most of America, the law of capture applies. If you lawfully kill or mortally wound a wild animal on your property, then that wild animal is yours.


Under the Public Trust Doctrine, an animal must be “legally removed” from the wild before property rights can arise in it. That is, you cannot break the law to capture or kill an animal. For example, the following WILL NOT grant you private ownership of wild animals:

  • killing wildlife out of season

  • killing wildlife without a proper license or permit

  • killing wildlife with inappropriate firearms, ammo, or weapons

  • killing another's domestic animals

  • killing wildlife on another's property

  • killing protected or endangered species

  • hunting certain game animals with lights

  • failing to properly tag wildlife

  • capturing, possessing, or transporting a live (or dead) game animal without a proper permit

This list is not exhaustive and you should become educated on what you can and cannot harvest in this state. The Texas Parks and Wildlife Department publishes its Outdoor Manual every year, and the Outdoor Manual is an incredibly useful tool in determining your rights with respect to state and federal regulations.


If you believe you have wrongfully taken a game animal, contact an attorney immediately.


Mortally Wounded Animals, generally.


If you lawfully 'mortally wound' a wild animal, the general rule is that the animal is yours. Whether you mortally wounded a wild animal is a question of fact.


Moreover, it is illegal to intentionally and knowingly fail to make a reasonable effort to retrieve the dead or wounded game animal. Tex. Parks & Wild. Code § 62.011. While the law imposes an obligation to make reasonable efforts, the law does not allow you to trespass!


You do not want to subject yourself to criminal prosecution for not knowing the law or not knowing how to properly and lawfully kill a wild animal.


Retrieving Animals from Another's Property.


You do not have the right to trespass on someone else's property to retrieve a dead or mortally wounded wild animal. The law is clear and this is printed in nearly every version of the Outdoor Manual:

"No person may pursue a wounded wildlife resource across a property line without the consent of the landowner of the property where the wildlife resource has fled. Under the trespass provisions of the Penal Code, a person on a property without the permission of the landowner is subject to arrest."


Criminal trespass is generally a Class B misdemeanor, which could result in a fine up to $2,000, imprisonment up to 180 days, or both.


If the criminal trespass is committed while carrying a deadly weapon (such as a firearm or knife), then you may face a Class A misdemeanor, which could result in a fine up to $4,000, imprisonment up to one year, or both. Liability for civil trespass may arise as well.


Balancing of Rights.


Neighboring property owners have rights. They are well within their rights to prohibit you from retrieving your animal, and you are prohibited from unlawfully entering their property.


On the other hand, you have lawfully killed an animal and it belongs to you. You have an obligation to make a reasonable effort to retrieve it.


If the property owner refuses to allow you to harvest your animal they may subject themselves to civil liability for conversion or trespass to chattel. This means that the property owner could be sued for the fair market value of the animal that was incapable of being harvested.


What to do if the animal is on someone else's property.


The best option is to not put yourself in a position to where you have to retrieve an animal on someone else's property in the first place. To that end, you should hunt a sufficient distance from any property lines, become familiar with your weapon and ammo, and learn how to properly kill an animal.


Another great option is to be a good neighbor. Contact them if the animal ventured on their property and died. Be courteous and try to reach an agreement. Things happen beyond your control. Maybe the animal was spooked at the last second, maybe your weapon or ammo were defective, or maybe the anatomy was off.


If necessary, contact your local game warden or sheriff to intervene. Take photographs of the game (without going on another person's property) and document everything you can.


If you are unable to find a solution, you may have a claim against the neighbor who refuses to allow you to retrieve the animal.


Conclusion.


You have an obligation to make reasonable attempts to retrieve dead or wounded game animals. To that end, you should (1) contact the property owner where the animal is located, (2) contact your local sheriff or game warden, and (3) take photographs and document as necessary.


Do not go onto someone else's land without their consent!


When dealing with legal rights and matters, you should probably consult with an attorney.



If you are aware of poaching, contact Operation Game Thief (OGT):


"Operation Game Thief is Texas' Wildlife Crime-Stoppers Program, offering rewards of up to $1,000 for information leading to the arrest and conviction for a wildlife crime. Begun in 1981 as a result of laws passed by the 67th Legislature to help curtail poaching, the program, a function of the Law Enforcement division of The Texas Parks and Wildlife Department, is highly successful, having been responsible for the payment of over $195,000 in rewards. Privately funded, the program is dependent on financial support from the public through the purchase of OGT merchandise and memberships, donations, sponsorships, and gifts."


OPERATION GAME THEIF has a hotline available 24/7. Their number is (800) 792-4263.

***This blog post should not be taken as legal advice. The information contained does not create an attorney-client relationship. The above is general information. I am a Texas attorney licensed to practice Texas law. This blog was written to provide information about non-specific Texas law. For specific questions regarding the hunting and animal law, you should consult a Texas attorney who practices in animal or hunting law.***


***Matthew A. Jirkovsky, P.C. and this post are not affiliated with or sponsored by Operation Game Thief. ***

163 views0 comments

Recent Posts

See All