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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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I hunt deer in Mexico. We go by boat to Mexico to our lease.

Resolved Question:

I hunt deer in Mexico.

We go by boat to Mexico to our lease. It is a short boat ride and eliminates the need to go through a Mexican town.
When we come back to US we are required to check in at a US port of entry. The US port of entry we use and is required for us to use, is about 25 miles from the boat launch we drive the truck, trailer and boat to the port of entry for clearing back into the US. W
We were cited by the Texas Game Warden for illegal importation of wildlife. When we docked we had our Mexican Tags on the antlers, and our hunters agreement from Mexico. We did not have the US fish and game importation papers. We called the Port of Entry and told them what we were doing in Mexico and that we would be there shortly to check in, as required by the signs Customs Border Patrol has installed at the boat ramp.

We waited for several hours until the Customs Agriculture inspector arrived. Upon her arrival the Texas Game Wardens who had followed us, with the deer in their truck had a 30 minute session with her before she got to us.
She confiscated our animals saying that because we did not say we had something to declare on the phone, that we were trying to smuggle the deer in. She also refused to allow us to fill out the US Fish and Wildlife Form 3-177, as did the the customs officer in charge.
I should make it clear that we were using an airboat to transport ourselves, gear and animals back and forth from Mexico to Texas. We were using an airboat due to the extreme low water situation in the river. We leave our trucks for several days at a time at a National Park Parking lot that is not busy at all, knowing full well that all law enforcement will be running our tags. We use an airboat which is the loudest boat available to transport ourselves. Nobody ever runs smuggling operations in an airboat. Being in Texas, on the border we fully expected to be stopped each and every time we cross, which is several times a year.

My question is this, does the Texas Game Warden have a valid citation. We were cited for violation code 6306, PWC 62.026. We were following the required actions by Customs, Border Patrol.

Please Cite the aplicable Texas Parks and Wildlife code.
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Parks & Wildlife Code 62.026(a)(2) requires that in order to import any wild game animal from Mexico, the U.S. Customs Officer at the port of entry must provide a statement to the Texas Parks and Wildlife officer that the animal was imported from the Republic of Mexico. Otherwise, the importation is illegal.

By refusing to permit you to fill out the form 3-177, you were denied the opportunity to obtain the statement and effectively forced to violate the law. Since this is a criminal citation, you may be able to defend on the basis of "entrapment." That is, the federal officer trapped you into committing a crime that you would not have otherwise committed, had you been permitted to fill out the 3--177 form. The problem, of course, is that the federal officer would have to be called as a witness to trial, along with the texas officer, and you would somehow have to elicit testimony from one or both of them that would show that this was some sort of weird punitive action on their part to hold you liable for what would have otherwise been a lawful act.

Perhaps if you could show that you had the Mexico tags on the game, and that everything about your actions were regular, that the only possible reason for the federal officer's denial of your opportunity to fill out the form and get a statement that the game came from Mexico. And, that by denying you the opportunity, you were summarily denied due process of law, and thereby entrapped into committing a crime that you otherwise would never had committed.

That's how I would argue it, were I representing you.

Hope this helps and Happy New Year.

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Customer: replied 1 year ago.



 


I was not alone, my friend was with me as well and he witnessed my request to fill out the form on both occasions and the subsequent denials.


 


The wardens seemed to have a problem with the transportation of the deer on the road to get to the port of entry. They even said that we would have to "go around" meaning go through Mexico on the roads to go into the border checkpoint on the US side. I can find nothing in the US fish and wildlife website that says the animal most come into the US at any particular Port of Entry.


Animals (deer) are denied entry into the US all the time. I am wondering if they, Texas Wardens, write tickets for every denied animal at all border crossings. I think not.


 


What I cannot seem for find anywhere is: At what physical point does the PWC take effect on bringing the deer into Texas?


 


Since we were trying to follow Federal Law by complying with the posted signs at the boat launch, to which we told the Texas Wardens immediately. Does Texas even have a legitimate right to cite us?


 

Expert:  socrateaser replied 1 year ago.
The federal constitution gives Customs and Border Protection the authority to determine who may and may not enter the USA, in accordance with federal law. The U.S. Supreme Court has repeatedly held that the federal government's authority is at its "zenith" at the international borders. U.S. v. Flores-Montano, 541 U.S. 149 (2004).

The only relevant issue is whether or not the federal officer provided you with a statement concerning the origin of the game being from the Republic of Mexico. If yes, then you are not in violation of Texas law -- otherwise you are in violation.

Once it is determined that you have violated the law, you have to find an affirmative defense. Entrapment is a defense. Violation of your due process rights is a defense. That's all that matters.

The government can claim that driving on the roads before you received the statement (which you didn't receive, but assuming that you did) is sufficient to find you in violation of PWC 62.026. However, there is a legal concept called "de minimis non curat lex," which is latin for, "The law does not concern itself with trifles." Assuming that the federal officer was willing to give you the requisite statement, a court could simply dismiss in the interests of justice, given that you were on your way to obtain the statement. However, the two officers apparently decided that they would prefer to cite you, so you were refused the statement, and thereby violated the law -- despite the fact that the game was clearly marked as to its origin. To me, this is entrapment, because the officers could just as easily have permitted you to fill out the form 3-177 and give you the statement concerning the origin of the game, which would have legalized your action.

In effect, the two officers "induced" your violation, by creating the circumstances under which you would be in violation of Texas law.

I can't promise that a judge will agree to my interpretation, but if I were the judge, that's how I would view the issue -- except I'd be more colorful (e.g., "Are you all serious with this BS? You're wasting my time -- case dismissed!").

Hope this helps.
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Category: Legal
Satisfied Customers: 34098
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