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May 1, 1970

Honorable Jack McLaughlin Chairman, Parks and Wildlife Committee Representative,District 52 House of,Representatives Austin, Texas Opinion No.M-622

Re: Constitutionality of Article 952L-12;'Sec. 2; of the Penal Code of the State of Texas as amended by Acts, 1967, 60th Leg., p. 1154, Dear RepresentativeMcLaughlin: ch. 511.

you have,requested an-opinion of this office as to the constitutionalityof Article 952L-12, Sec. 2, Texas Penal Code as amended. Rephrased,your questions are as follows:

Does Article 952LA12 **of** the Penal Code violate the-Constitutionof the State of Texas or the United States-by providing that the nets of a person chargedwith an offense under this act canbe confiscated and held pending the trial of,such person?'

Does the,,provision of the~actwhich permits destruction of.~nets upon conviction of an individual-sousing them violate the Constitution of the State of Texas or the United SthtesT
Section 2 **of** Article.952L-12 reads,~inpart, as follows:

"Set,~2; When any peace-office of-this state orany law.-enforcement offfcer~employed by the Parksand.-WildlifeDepartmentsees'any selene,

strike; net;.,gill net,~~~or-

trammel,net, or.any devicesthe'use-of-whfch~~is prohibited under Sectionb.of: thisAct:where the use of such device-.Ps~,prohibfted.-.and-.has reasonto~ bel$eve and does believe that the same is being used or possessed in violation of the

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provisions of this Acts;it shall be.his duty to-arrestthe party.,using-or. possessing-such device and,~withouta'warrant;'&all seize su~ch device..as-evi&nce;-Tt shall be.the drrty-',of

such~-peace-~officeror 'employee,

to deftver such~device-to. a,court of.competent jurisdictionof~the~county in-which~ it.was seized;where it shall"be'held-was evidence until after-

thentrihl;;"I'f~the.'defendant is found'guilty~~of'possessing-or ,using- suoh device unfawfully;~~'the~"court~'shall enter'an order directing the-~immediate-destruction offsuch device byzany-state. game'warden or by'.thesheriff,..br-.constable- of-'the.

county where the;

casevas tried;"and the- game warden or-sheriff^-or constable .of-the'. county.sh~all inmrediate-ly'destrop..-euch.'device anLl make a sworn report,-to.-the-judge 'of'such-

court, showinghow; -when;and .where said device was-destroyed: .When' suoh-device is found bya peace.~officer-offs-this 'state. orany law.enforcement'officer-employed-by. the Parks andC~,,Wildlife Department-without anyonwin possession-where~ its,~useis prohibited, itshall-be.seized by~'such-officerwithoutwarrant and.-deYivered-to-the appropriate'.' court inthe ~county,-in, which-it:

was found. Said peace officer-or employeeshall make affidavitthat-such-device~wasfound'in or onthe tidal,.,waters-of'-this'state at a~ point where itsuse-was-prohibited,~which said affidavitshafl'describe such ~device landthe court shag1 dfrect~,-the.game .wardenor sheriff orany constable,-of"the county to post,a copy of-~said

afffdavit.~in-the

courthouse of the county~

i-n-which'-~safd~'device was seized;land said, officershall~-make,~-hisreturnto~-thecourt showing-wh~en~-and,where .saidnotice was posted.~,,.Thirty-,~(30)~,~.ddys .aftersuch~notice is, posted;-the..coart;:-either. intermetime or.fn vacation;~

shallenter an orderdirect+ ing the'immediate-..destraction-of,.'such device by any game-warden'or-.the,.sheriff;.,or--any constable,-in-the,-,county; Andy--said'officer executing-said.order;.-shall,;~under-oath; m&e his-return-to-saidcourt-showing how, when, an&where;.-such'.device~was'destroyed. It shall be the duty of the Parks and Wildlife Department to enforce thisAct."

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” ”

. . . . We assume your questions refer to Article 1, Sections 17 and 19 of the-Constitutionof Texas. Article 1, Section 17, reads as folkows:

,* No person's property,shall'be taken, dame~ged

or;,destroyed

~for~ orappliedto, public usewithout. adequate~ compensation-beingmade, unless by-the,consent-of-such.person,and when taken, except for,the~ use of.the State, such compensationshall be,firstmade, or-secured by-a.depositof-money;~and no irrevocable or uncontrol.%able

grant.of special,privileges orimmunities, shall be made;~but all,privileges and-franchises-granted'by.~the Legislature, or-created under its authority shall be subject to,the control--thereof." The-corollary of Section 17 in the Constitution of the United States is the 5th Amendment, which reads, in part, as follows: .'

"No person shall O D

.be deprived of life, liberty;or-property,,~without~ due process of--law;

norshall private property be,taken for public use without just compensation;"
Article 1, Section 19 of the Constitution of Texas reads as follows:

"No citizen of-this~.State-sha%l.bedeprived of life, liberty; property,-'privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."
The corollary of Section 19,,in,the Constitution-of the United States is both the 5thAmendment, quoted above in part, and the 14th Amendment,~which, reads; fn,part; as follows:

"No state shall make or enforce,any~~law' which shall abridge the~privilegesorimmunities of citizens of the United States; nor shall any State deprive any person'ofm'life, liberty, or property without due process .oflaw; nor deny to any person within its jurisdiction the equal protection of the laws."

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The. United States.SupremeCourt has upheld Agnew York statute.allowing~theseizure and~destruction.~of~-ftsh nets being used 'illegally, which.did~not.~provide for any notice
**or** hearing,;

-pointingoutthatthe'~,.owner 'wou'ld -have.his'day in court~'at-a'lhter--date'fn a.,suft'~,brought

for,the destruch tion of'-then-property.' .Lawtonv. Steele; 152 U.S. 133 (1894). See alsa-Yakus v. United States, 321 U.S. 414, 442-443 (1944) confinblng thisview. Inconsidering the.constitutionalityOf~Article-952L-12, we eliminate from,our-discussionthe-constitutionality'of,- ~ seising~prohibiteddevices foundwhere there is no individualin possession;~since~an-opinion--of~this~offide,~#o.-~$~679~~~~1939) determined that'strikingly similar~provisfonsinArticle.952&10, 53, we're'appropriateand~constitutional; ,What.remainsfor.dfscussion is~the-language.,of-Section 2~of~ Article 952L-10 as it applies to-.anindividual foundwith prohibited devices in his possession orinusing,those.,devices; "' Also,similar to,Article,952L-12and Article 952L-10~is Article~,941,

of-the Texas Penal-Code. The pertinent-portion **of** Article 941 provided that where persons are chargedwith violation of the provisionsof.-the-Act*(Article941) then:

'*'The,Game

Fish and'CysterCommissioner of-Texas or-his deputy,

shall have-the 'powerand right to,seize,.,.and^hold nets;-"seines~

or.'other-tackle in-his possessionas-evidence-until~~afterthe trial **of** the defendant and no suit shall be maintained.against~him-thereforr"
The same questions of constitutionalitywere raised in construingArticle 941, in.the case,of Tuttle v. Wood;35 S.W.?d 1061 (1930,error ref.).~ The-Court inthat.case recognized that theState-owns'the'game~and,the tidewaters and the fishwithin the state and-has,the sovereign and. inherent power, exercisable'through the-Legislature,to regulate the taking of fish-and shrimp'frompublic waters and to prohibit such taking;.citfng-.Sterrett v;,~Gibson, 168 S.W. 16, (Tex.CiviAnn;, .~1914, no,writ)1~'

that the, necessity and reasonableness.of~-the fish regulations-are, left to the discretion of~the'legislature,'and,thatthe citizen has no vested right in,~ the game and.fish of the State. Consequently, the Legislature..has',the power ,to declare thatwhich is not a constitutional right,to be unlawful, thereby revoking or modifying that~which is a mere privilege and which the state, in its sovereignty, may or may not choose to bestcw upon the citizens of the

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State.,.

Sterrett-v. Gibson, supra. We there~wkflbe"a,,reasonable-exercise-of willpresume that, the police powerandheld to be a "taking"

. . consequentlyysuchexercise will not be or "damaging" **of** property for which compensationmust be paid.In::.determining the constitutionalityof Article 941, the cdurt in Tuttle vi Wood.said the following:

."Itis contended~. . . that the act is violative of the due process and equal protection clausesof the Federal and State Constitutions andfincontravention of~the provision of the State Constitutionvesting the Legislaturewith the~exclusivepowerto' make laws. We are of~the opinion that the acts are not subject to these objections.fl (Emphasis.Added:)
It'is therefore-the opinion~of this office.that-Sections 2 of Article,952L-12 is constitutional-anddoes-not-violate the due--processclause-ofeither-the'Texasor the~,United States~

Constitution;nor would;,it necessarily~beheld to deprive 'a~personof'property-.without~'compensation-upon judicial **review** thereof: ,.We~are reinforced-inour-opinion by the ,following'language,~from.,Sterrettv. Gibson;~supra, which indicatesthat the.state grants no property right or immunity to an individual in the fish or apparatus used within its waters.

"The state.has the power and authority make laws deemed necessary and proper for the preservation of its game and fish, and such power has been exercised so long and so beneficially that any attempt to call it in question will meet with scant considerationby any appellate court. Note only has the state the power to preserve its game and fish, but it is its duty to do so by enacting laws prohibiting destructive and exhaustivemethods of taking the same, by the use **of** instruments that will destroy them at improper times and laces. In the exercise of thiswise and eneficientpolice power the state has authority to not only declare that seines and nets shall not be used in its waters but to make such use a crime and to make to

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alLmeasure necessary to prevent a reoetition of such offenses; Suchinstrumsnts of-destruction of fish may be declared nuisances ,bythe ,Legislatureand its officers authorized to destroy them." -(Emphasis

added.) Itappears settled law that the federal and state governments can seize without compensationproperty put to illcit use in violation of statute, and the United States Supreme Court affirmed this rule even where the owner of the legal title to~the oronertv did not warticiwate in such illesal use and had nb knowledge of it: J. W: Goldsmith, Jr. z Grant co. v. U.S., 254 W.S. 505 (1921).

We feel the language quoted above from the Sterrett case correctly answersboth of your questions in the negative. There can be no "taking"or "damaging"of constitutional property rights if no such rights exist. The forfeiture **of** an automobile owned by one not operating it when it was seized and found to be illegally transportingnarcotics has been upheld as within the police power of the state. State v. Richards, 157 Tex. 166, 301 S.W.Zd 597'(1957).'Commercial or Individual fishing licenses issuedby the State constitute mere personal privilegeswhich may be summarily revoked for a violation **of** any of the terms and conditions imposedby the Legislature. The courts have no concernwith the wisdom of such legislative acts and must give effect to the stated purpose or plan of the legislature, although such measure mav seem ill advised or imoracticable to some individuals. State v. Jackson, 376 S.W.id 341.iTex.Sup. 1964).

SUMMARY

Article 952L-12, Section 2, Texas Penal Code, providing both **for** seizure and confiscation of devices prohibited in Espiritu Santo Bay and other bays and lakes until and pending outcome of trial of the individualpossessing or using such devices, and destruction of such devices upon conviction of the individualpossessing or using them is

General of Texas

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Prepared by Bennie W. Bock, II Assistant Attorney General
APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman

R. D. Green Terry Goodman Glenn Brown Austin C. Bray, Jr.

MRADE F. GRIFFIN Staff Legal Assistant

ALFREDWALXER Executive Assistant

NOLA WHITE First Assistant

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