R-770 

# 177
OF'FICE OF 

# THEAIYTORNEY 

# GENERAL

PRICE DANIEL ~~RNxzY GENERAL

Hon. **James** C. **Martin** CountyAttorney **NU8C88 county**  Corpus Christi,Texas Nov. 15, 1947
Opinion No. V-431 R8: Constitutionalityof H.B. 380, Acts 50th Legisla**tUr8,** R-S., 1947, partaining to taking and sale of shrimp.
Dear Sir:
You request a ruling relativeto the constitutionalityOf ROUS8 Bill 380, being Chapter 107,Acts Of th8 50th Legislature, 1947, Regular Session, page 149, **clm8LldiQ3 v.**  **P. c.,**  Art. 952 L-11, pertainingto the taking and sale of shrimp. You state:

"It is COnt8nd8d by some partics that HOWE Bill No. 380 iS **UILoOnstitUtiOna1** in vi8W of tha provisionsof said lawwh1ch.permit.s to b8 legally Used inGalveston CoUIity, Texas, a board not more than 20" wide, and not more than 60" long, and In other counties of the State, a board notmore than 12"wide and not mor8 than l8? long. Those contending the law to bye unconstitutionalmaintain it violatss the,Texas Constitution In that It Is discriminatory,and is a local or special law." The particularparagraphwhich you refer to Is found inVernon's Annotated Penal Code,Article 952 L-11, as amended, and readsas follows:

"Sec. 1:.

. . . "It shall b8 UUlaWfUl f~Orany person t0 take or assist In the taking of shrimp from the inlandwaters of this State by the use and operation of a bait trawl towed by a powerboat, which said bait trawl shall be more than ten (10)feet at the mouth, as measured along thewebbing attaahed to the .corkline, or twenty-five (25) feet in length, or by the us8 and anploymentof, 178 Hon. James C.Martin, page 2, V-431

doors or Other boards to spread and open said bait trawlwhich are of greater size or dimension than twelve (12)by eighteen (18) Inches, or to tow or assist in the towing of more than one such bait net or trawl from a power boat, or to tow other boats engaged in taking bait shrimp; and it shall be unlawful for any person operating a bait trawl to have on board any boat any amount of bait shrimp during the closed saason in inlandwaters as above provided in excessor one hundred and fifty (150.) pounds of shrimp In their natural state with hea.ds

attached. Provided that during such closed season in Galveston County it shall be lawful to take shrimp for bait by the use and amploymentof doors or boards' of not greater dimension than twenty (20) by sixty (60) inch8Sand to possess not more than two hundredand fiftg~(250) pounds Of shrimpwith heads attached,

. .~." The State Is th8 owner of the fish, shrimp and other products of the tidalwaters of the Gulf of Mexico within the jurisdictionof this State. Arti&le 4026,V. c. s.; Raymond v. Kibbe, 95 S.W. 727, 729, 730;.Stephenson v. Wood,.34 s. w; (26.) 246, 119,Tex. 964; Tuttle v. Wood. 35 S. W. (2d) 1061.writ refused:Mccreadv v:Virgini;, 94U. S.:391, 24 L. Ed. 248; Geer v. Conhectlout, 161U. S. 519.

Article III,Section 56 of the T8Xas Constitution, aft8rprohibiting the Legislature from passing "any local or special law n in certain enumeratad instances, oontains th8 followingprovision:

"

. . . .provided,,thatnothing herein containedshallbe construed to prohibit the' Legislature from passing speaial laws for the preservationof the game and fish of this State in certain localities."
In Stephensonv. Wood, CivilAppeals, 35 S.W. (2d) 794, the Galveston Court in construing this provision of the statute said:

"It occurs to us that by the 'paragraph last quoted the~~framers of the Constitution meant to declarethat nothing in the Constitution should prohibit the Legislature fromHon. Jam8S C.Martin, page 3, V-431

passing laws, 'specialor local,( for the preservationof the game and fish of this state,whether made to apply to theWho18 state or to certain localitieswithout notic8 required in the passage Of laws relative to the subjectsmentioned in sections 56 and 57 of article 3 of the Constitution."
It is immaterial that a game law applies to some counties and not to others or that different laws apply to different counties. The counties,as such, have no right to complain that the game laws applicable to it are different from the game laws applicable to certain other counties. For instance, there are very few counties that have the same squirrel laws. Whatever the law is in a particular county, it applies equally andwithout diScriminStion to all persons in the county. The State owns the fish and game,which are ferae naturae, and through its Legislature itmay prohibit their taking altogether, or place such restrictionson their taking, as itmay se8

## fit, either as to the place or th8 means of taking, or both. See authorities cited above.

In Tuttle v, Wood, San Antonio Court of Civil Appeals, 1930, 35 S. W. (2d) 1061, the court said:

'1.

. , . It must be conc8d8d that the state has the inherentpower, to be exercised through the Legislature,to regulatethe taking of fish and shrimp from its public waters,-andto prohibit from time to time such taking, in order to conserve those natural resources for the ultimate benefit of all the people. So long as that power is reasonablyexercised by the legislativeauthority,no other branch of the governmentmay interferetherewith. Ordinarily, the necessity or reasonableness of regulationor prohibition in specific cases, for the time being, are left to the discretion of the Legislature,whose determination thereof, in the exercise of a sound discretion, is conclusiveupon the courts.
. . .v The Legislature of T8XaS is authorized to enact special laws for the preservationof game and fish without notice required for the passage of "special or looal laws", and it is immaterial that such laws apply to certain localitiesand not to others,Hon. James~C.Martin, page 4$ V-431

SUMMARY
House Bill No, 380 (Acts 50th Leg, 19klo 'Ch.l&I?,

p0 149) amending Art, 952,L-11, V, ?. co, pertaining to the taking end sale ef shrimp, and provfdfng that theremay be uaed fn Galveston County,Texas fn a bait trawl for the takfng of shrimp, a board not more than 20"wide and not more than 60" long, and in tihsr oountirs l

f the State a board not mor8 than 12"wide nor more than 18" longs, is conatitutional.
Yours very truly

. XITOIU'IEYGENSML **OF** TXM

-1 David Wuntch .Assirta&

ATTORNEYGXhXRAL '