Honorable Warden Terry 

San Saba County Attorney 

San Saba, Texas 

Dear Mr. Terry: 

Opinion No. M-732 

Re: Whether 978f-5b, Vernon's 

Penal Code is constitutional. 

You have asked an opinion of this office as to whether 

Article 978f-5b, Vernon's Penal Code is constitutional. 

Your question, rephrased, is as follows: 

Is Article 978f-5b of the Penal Code of 

the State of Texas, which requires the purchase 

of a Fish Farm License at a sum of $25.00 before 

certain persons and firms can grow fish upon 

private property and sell the same, constitutional? 

Article 978f-5b, enacted in 1969 (Acts of the 61st 

Legislature, Page 884, Chapter 298), reads as follows: 

"Section 1. The Parks and Wildlife Department 

is authorized and directed to issue numbered 

licenses to fish farmers operating a business 

on private lands. It shall be unlawful for 

any person, firm, or corporation to engage in 

the business of fish farming as defined in this 

Act without first obtaining the required license. 

"Section 2. Definitions: 

" (a) A 'Fish Farmer' is any person, firm 

or corporation engaged in the business of production, 

propagation, transportation, possession and sale 

of fish except propagated for bait purposes, raised 

in private ponds or reservoirs. 

"(b) 'Private Ponds' are defined as ponds or 

reservoirs located wholly within the enclosed lands 

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Honorable Warden Terry, Page 2 CM- 732 ) 

of an owner or lessor which is not connected 

to any stream carrying public waters not subject 

to overflow from any public waters. 

" (cl 'Owner' is defined as any person, 

partnership, corporation or firm or several 

persons licensed as 'Fish Farmers' by the Parks 

and Wildlife Department. 

"Section 3. Before any owner in this state 

shall engage in the business of fish farming 

for the purpose of sale, barter, or exchange, 

a 'Fish Farm' license shall first be procured 

from the Parks and Wildlife Department. The 

annual fee for a Fish Farm license or Fish Farm 

Vehicle license shall be $25 and the license 

shall be on a form provided by the Parks and 

Wildlife Department. Such license shall be 

valid from September 1 or issuance date whichever 

is later and shall expire August 31 following 

the date of issuance. A license shall be required 

for each separate premise on which Fish Farms 

are located. A 'Fish Farm vehicle license' shall 

be required for each vehicle transporting fish 

from Fish Farms for the purpose of sale from 

the vehicle. Vehicles transporting fish from 

Fish Farms when no sales are made from the vehicle 

shall carry a bill of lading reflecting the 

species of fish, number, Fish Farm owner's name, 

location, and license number of Fish Farm and 

the destination of the cargo, but said vehicle 

shall not be required to obtain a Fish Farm 

vehicle license. 

"Section 4. Each 'Fish Farm' shall maintain 

records reflecting sales and shipments of fish 

and such records shall be open for inspection 

by designated personnel of the Parks and Wildlife 

Department. 

"Section 5. Fish from 'Fish Farms' may 

be harvested by any mean, may be of any size, 

and may be sold at any time of the year, and 

in any county of the state. 

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Honorable Warden Terry, Page 3, (M-732) 

"Section 6. Baas and crappie propagated 

under the terms of this Act may be sold only 

for stocking purposes and shall not be sold 

for resale except to another licensed Fish 

Farm. Bass and crappie may not be sold for 

consumption by individuals, cafes and restaurants, or sale by Retail Fish Dealers, and 

Wholesale Dealers. All other fish propagated 

on 'Fish Farms' may be sold for any purpose. 

"Section 7. Chapter 630, 59th Legislature, 

Regular Session, 1965, is hereby repealed, all 

other laws and parts of laws in conflict herewith are repealed to the extent of conflict only. 

"Section 8. Any person, firm or corporation 

who fails to obtain the required license herein 

or who violates any provisions of this Act is 

guilty of a misdemeanor and upon conviction is 

punishable by a fine of nor less than $50 nor 

nmre than $200." 

Similar in both language and requirements to the above 

quoted statute is Article 934a of Vernon's Penal Code, which 

prescribes certain licenses for commercial fisherman and wholesale dealers in fish, oysters or shrimp or other edible aquatic 

products. Article 934a on numerous occasions has been held constitutional by the courts of Texas and the United States Supreme 

Court as a vaiid inspection fee. Gulf Fisheries Co. v. Darrouzet, 

(D.C. 1927) 17 F.2d 374, affirmed 48 S.Ct. 227, 276 U.S. 124 

72 L.Ed. 495; Ex parte Mehlman, 127 Cr.R. 257, 75 S.W.2d 98,' 

(1903); Brownsville Shrimp Co. v. Miller,, 287~ S.W.?d 911 (Tex. 

Civ.App., 1948, error ref., n.r.e.). 

As stated in Attorney General's Opinion No. 1473 (1939), 

"Licensing measures quite generally provide 

for the payment of a sum by the licensee to 

defray the expense of issuing the license and 

examining the applicant or supervising the 

business to be conducted. Such charges are 

usually denominated 'fees'. A license fee is 

not a tax, but a price exacted for the exercise of a privilege. It is levied under the 

police and not the taxing power, and therefore 

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'Honorable Warden Terry, Page 4, (M-722) 

differs essentially from both a propert& and an 

occupation tax.,As a rule, payment of ,the. 

license fee is made .a,.prerequisite to ,the,~right 

to exercise the privilege sought, and in many 

cases pursuit of the activity without previous 

payment of the requirements fee is made a 

criminal offense. (And cases cited) (Underscoring ours) cf. 27 Tex.Jur., p. 892." 

We are cognizant of the growing commercial fish raising 

industry in the State of Texas. Article 978f-5b patently has 

as its object the regulation of commercial fish raising and 

marketing with imposition of a license fee to support the regulation costs. In our opinion, the fee imposed neither violates Article VIII, Sections 1 and 2, Texas Constitution, nor 

the Fourteenth Amendment. See H. Rouw Co. v. Texas Citrus 

Commission, 247 S.W.Zd 231, 234 (Tex.Sup. 19521, wherein the 

Court said of such a statute: 

II . . . if its primary purpose appears to be 

that of regulation, then the fees levied are 

license fees and not taxes." 

It is therefore, our opinion that Article 978f-5b prescribing license fees for "Fish Farms" is constitutional as 

a lawful exercise of the state's police power. The law in 

this respect is stated in Antieau's Modern Constitutional 

Law, Vol. 1, Sec. 3.2, p. 296: 

"The federal government, under the Fifth 

Amendment, and the states, under the Fourteenth, can regulate the use of private property whenever such regulation is reasonable 

and reasonably related to the public health, 

safety, morality, or general welfare. It is 

only unreasonable, arbitrary or capricious interference with the use of private property 

that is unconstitutional. See Goldbatt v. 

Hempstead, (19621, 369 U.S. 590; Nectow v. 

c@&(%,l~~ZioZ iit ] ii2 r 3: ,'ZJ&es 

. 

Our opinion, when we aonsider Article 978f-5b as a whole 

and in the context of the relevant facts and circumstances 

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.- . 

Honorable Warden Terry, Page 5 (M- 732 ) 

related, is that the primary purpose of the enactment and 

of the $25.00 fee by it is not the raising of revenue but 

the regulation of the persons and property engaged in the 

occuvation of fish farmina. 

may be upheld. 

This beina so, the license law 

City of Ft. Worth v. G&f kefining Co., 125 

Tex. 512, 83 S.W.2d 610, 617 (1935), in which the Court held 

that: 

"A license law is one which confers upon those 

who comply therewith a right denied all others, and 

it is immaterial whether or not it provides a fee 

therefor. . ." 

The Court there also pointed out that under the general rule 

as to reasonableness of the fee, "the sum levied cannot be 

excessive nor more than reasonably necessary to cover the 

costs of granting the license and of exercising proper public 

regulations. . .II (at page 618). Since we have been presented 

no facts to establish any unreasonable fee, we must presume 

that the statute is constitutional. 

The Act establishes a reasonable classification as to 

the class of persons engaging in the occupation of fish 

farming in private waters. See Texas Co. v. Burkett, 117 

Tex. 16. 296 S.W. 273 (1927), 54a RR 1397. Thus, as held 

in the above case, waters from springs which are neither 

surface waters nor subsurface streams with defined channels, 

nor riparian water in any form, are held to be the exclusive 

property of the land owners. The statute does not operate to 

discriminate against these landowners, since they are the 

only persons who have any ownership in the waters described. 

SUMMARY 

Article 978f-5b, which prescribes license fees 

for "Fish Farms", is constitutional as a lawful 

exercise of the state police power. 

truly yours, 

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Honorable Warden Terry, Page 6 (M- 732 ) 

Prepared by Bennie W. Bock, II 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Glenn Brown 

Ed Esquivel 

Scott Garrison 

Bob Lattimore 

Roger Tyler 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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