c 

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 Representative McLaughlin: ch. 511. 

you have,requested an-opinion of this office as to 

the constitutionality of 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-Constitution of the State of Texas or the 

United States-by providing that the nets of a 

person charged with 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-so using them violate the Constitution of the State of Texas or the United 

SthtesT 

Section 2 of Article.952L-12 reads,~in part, 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 devices the'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 

-2973- 
Honorable Jack McLaughlin, Page 2 (M-622 ) 

provisions of this Acts; it shall be.his duty 

to-arrestthe party.,using-or. possessing-such 

device and, ~without a'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 

jurisdiction of~the~ county in-which~ it.was 

seized; where it shall"be'held-was evidence 

until after- then trihl;;"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 by zany -state. game'warden or 

by'.the sheriff,..br-.constable- of-'the. county 

where the; case vas 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, 

showing how; -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,~use is 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 land the 

court shag1 dfrect~,-the.game .warden or 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,~-his returnto~-thecourt showing-wh~en~-and,where .said notice was 

posted. ~,,.Thirty-,~(30)~,~.ddys .after such~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 this Act." 

-2974- 
Honorable Jack McLaughlin, Page 3, (M- 622 ) 

” ” 

. . . . 

We assume your questions refer to Article 1, Sections 17 and 

19 of the-Constitution of 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-being made, 

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.be deprived 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 5th Amendment, 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~privileges orimmunities 

of citizens of the United States; nor shall 

any State deprive any person'ofm'life, liberty, 

or property without due process .of law; nor 

deny to any person within its jurisdiction 

the equal protection of the laws." 

-2975 
Honorable Jack McLaughlin, Page 4, (M-622 ) 

The. United States.Supreme Court has upheld Agnew York 

statute.allowing~the seizure and~destruction.~of~-ftsh nets 

being used 'illegally, which. did~not.~provide for any notice 

or hearing,; -pointing outthatthe'~,.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.constitutionality Of~Article-952L-12, 

we eliminate from,our-discussion the- constitutionality'of,- ~ 

seising~prohibited devices found where there is no individualin possession; ~since~an-opinion--of~this~offide,~#o.-~$~679~~~~1939) 

determined that'strikingly similar~provisfons inArticle.952&10, 

53, we're 'appropriate and~constitutional; ,What.remains for.dfscussion is~the-language.,of-Section 2~of~ Article 952L-10 as it applies to-.an individual found with prohibited devices in his 

possession orinusing,those.,devices; "' 

Also, similar to,Article,952L-12 and Article 952L-10~is 

Article~,941, of-the Texas Penal-Code. The pertinent-portion 

of Article 941 provided that where persons are charged with 

violation of the provisionsof.-the-Act*(Article 941) 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~~after the 

trial of the defendant and no suit shall be 

maintained.against~him-thereforr" 

The same questions of constitutionality were raised in 

construing Article 941, in.the case,of Tuttle v. Wood;35 

S.W.?d 1061 (1930, error ref.).~ The-Court inthat.case 

recognized that the State-owns'the'game~and,the tidewaters 

and the fish within the state and-has,the sovereign and. 

inherent power, exercisable'through the-Legislature, to 

regulate the taking of fish-and shrimp'from public 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,that the 

citizen has no vested right in,~ the game and. fish of the 

State. Consequently, the Legislature..has',the power ,to 

declare that which 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 

-2976- 
Honorable Jack McLaughlin, Page 5, (M- 622 ) 

State.,. Sterrett-v. Gibson, supra. We 

there~wkfl be"a,,reasonable-exercise-of 

willpresume that, 

the police powerandheld to be a "taking" . . 

consequentlyysuch exercise will not be 

or "damaging" of property for which compensation must be 

paid. 

In::.determining the constitutionality of Article 941, 

the cdurt in Tuttle vi Wood.said the following: 

."It is contended ~. . . that the act is 

violative of the due process and equal protection clausesof the Federal and State 

Constitutions and fin contravention of~the 

provision of the State Constitutionvesting 

the Legislature with the ~exclusive powerto' 

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-and does-not-violate 

the due--processclause-of either-the'Texas or the~,United 

States~ Constitution; nor would;,it necessarily~be held to 

deprive 'a~person of'property-.without~'compensation-upon 

judicial review thereof: ,.We~are reinforced-in our-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 consideration by 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 exhaustive methods of taking 

the same, by the use of instruments that 

will destroy them at improper times and 

laces. In the exercise of this wise and 

eneficient police 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 

-2977- 
Honorable Jack McLaughlin, Page 6, (M-622 ) 

alLmeasure necessary to prevent a reoetition of such offenses; Suchinstrumsnts 

of-destruction of fish may be declared 

nuisances ,by the ,Legislature and its 

officers authorized to destroy them." 

-(Emphasis added.) 

Itappears settled law that the federal and state governments can seize without compensation property 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 answers both 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 transporting narcotics 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 issued by the State constitute 

mere personal privileges which may be summarily revoked for 

a violation of any of the terms and conditions imposed by 

the Legislature. The courts have no concern with 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 individual possessing or using 

such devices, and destruction of such devices 

upon conviction of the individual possessing or 

using them is 

General of Texas 

-2978- 
Honorable Jack McLaughlin, Page 7, (M-622 ) 

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 

-2979-