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

-3552-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.

-3553-

### HonorableWardenTerry, Page 3, (M-732)

"Section 6. Baas and crappiepropagated under the terms of thisAct may be sold only for stockingpurposes and shallnot be sold for resale except to another licensedFish Farm. Bass and crappiemay not be sold for consumptionby individuals,cafes and restaurants, or saleby Retail Fish Dealers, and Wholesale Dealers. All other fishpropagated on 'FishFarms'may be sold for any purpose. "Section 7. Chapter 630, 59thLegislature, Regular Session, 1965, is hereby repealed, all other laws andparts of laws in conflictherewith are repealedto the extent of conflictonly. "Section 8. Any person, firm or corporation who fails to obtain the required licenseherein or who violates any provisions of thisAct is guilty of a misdemeanor and upon conviction is punishable **by** 

### a fineof nor less than $50nor nmre than $200." Similar in both language and requirements to the above quoted statute isArticle 934a of 

### Vernon's Penal Code,which prescribes certain licenses for commercial fishermanandwholesale dealers in fish,oysters or shrimpor other edible aquatic products. Article 934aon numerous occasionshas been held constitutionalby the courts of Texas and the United States Supreme Court as avaiid inspection fee. 

### Gulf Fisheries Co. v. Darrouzet, (D.C.1927) 17 F.2d 374,affirmed 48 S.Ct. 227, 276U.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'sOpinionNo. 1473 (1939), "Licensingmeasures quite generallyprovide for thepayment of a sumby the licensee to defray the expense of issuing the license and examining the applicantor supervisingthe 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 aprivilege. It is leviedunder the police and not the taxingpower, and therefore

**-3554-**

### 'HonorableWarden Terry, Page 4, (M-722)

differsessentially fromboth a propert&and an occupation tax.,As a rule,payment of ,the. license fee 

### ismade .a,.prerequisite to ,the,~right to exercise theprivilege sought, and inmany casespursuit of 

### the activitywithoutprevious payment of 

### the requirementsfee ismade a criminaloffense. (Andcases cited) (Underscoringours) cf. 27 Tex.Jur.,p. 892."
We are cognizantof the growingcommercial fish raising industry in the State of Texas. Article 978f-5bpatently has as its object the regulationof commercial fish raising and marketingwith impositionof a license fee to support the regulation costs. In our opinion, the fee imposedneitherviolatesArticle VIII, Sections 1 and 2, Texas Constitution,nor the FourteenthAmendment. 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 primarypurpose appears tobe that of regulation,then the fees 

### leviedare license fees andnot taxes." It is therefore,our opinion thatArticle 978f-5bprescribing license fees for "FishFarms" is constitutionalas a lawful exerciseof the state'spolice power. The law in this respect is stated inAntieau'sModern Constitutional Law, Vol. 1, Sec. 3.2,p. 296:

"The federalgovernment,under the Fifth Amendment, and the states,under the Fourteenth, can regulate theuse of 

### private propertywhenever such regulation is reasonable and reasonablyrelated to thepublic health, safety,morality,or generalwelfare. It is only unreasonable,arbitraryor capricious interferencewith the use of privateproperty that is unconstitutional. See Goldbattv. Hempstead, (19621,369U.S. 590;Nectow v. c@&(%,l~~ZioZ iit] ii2r3:,'ZJ&es

. Our opinion,whenwe aonsiderArticle 978f-5b as awhole and in the context of the relevant facts and circumstances

-3555-.- .

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(atpage 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,

-3556-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

-3557-