i~%c:s-r IS ‘ lil. Th:1\;.I\c+

..%TT<,~liiS.KBi

(G~,LX I!:I&WA.

Game,.Fish

and OysterCommission Austin,

Texas Gentlemen: Attention: .Honorable A. E. Wood, C!haiI?W.U. Opinion

No. 0-2209-A- Supplementa& Re: Interpretation of Articles 4053 ma,4053d relative~to 'the sale of'mudshell.
Pursuant

to the request contaiued In your letter of May 3, 1940, this will supplement Opinion

No. O-2209 relatlve:to the authority

of your Commission to contract for the sale of mudshell belonging

to the State of-Texas. Your queatiotis

are as follows: "1. Before a permit can be iss~@d under~Ax%icle

4053, is the Game Department

required

to @ve the approval of the GovernorIV any otherpublic official before such permit is effective?

**“ 2.**  C&n an outrightsale of materials be ma&e by the .bommisdon, with the approval of the Governor

under Article4053d? "3. ~Xn

the event a sale of all of the materials in any given area is tide and whol&y or partially paid for, with the approval of the Governor

under Art. 4053d, then does the Gamy,Fish and Oyster Commission

have authority

to issue a permit to another shell operator

to 'go into the same territary and take therefrom the materials

mentionedin said articleof the statute? "4. Are sales.made under Art. 4053d, with the approval of the Governor;

valid and binding? "5. If such 88186 are valid and,binding, then would the purchaserhave the right to assign the contract or transfer

the materlals so. purch+sed

to some other person or corporation?"
We believe that if we can clarifyour holding in Opinion No. o-2209, the enswersto each of your questions will suggest

themselves. In that opinion, we traced the'legislative history~of

Articles4053 and 4053a and found **that** they **were originally**  part and parcel of the samebill. They muSt,be construedtogether.Game, Fish and OysterCommission, Page 2 (0-2209-A)

Article 4053 (as originally enacted,

Section5 of Chapter68, Acts 1911) provides

that "Anyone

desiring

to purchase
. . . mudshell" is directed to make writtenapplication to the Gams, Fish, and Oyster Conunission. If the Costnlssion

finds in exercising its admlnistrative

judgment

that the operation will not injuriously affectthe location and the marine life therein, a permit may be granted

to operatein the territory described

in the application. Article4053, then, from the time of its original enactment

until the presenttime has contemplated the purchase

of mudshell

and othermaterials, and as a condition

precedent

to the sale providedfor in Article 4053d (as originally

enacted,

Sec. 6 of Chapten, Acts 1911) the purchaser must secure a permit from the Commission which will constitute an administrative

determination that the taking of the material will not "dsmage

or injuriously

affect any oysters,

oyster beds, fish inhabiting waters thereofor adjacent thereto“, or will not "damage or injuriously

affect any island,reef,bar, channel, river, creek or bayou used for frequent or occasional

navigation,

nor changeor otherwise Injuriously

affect any current

that would affectnavigation". With respectto these flr@ngs, the Governor of the State has no concern. Instead,

the Legislature

has provideda specialized, highlytrained Instrumentality,

the Game, Fish and Oyster Commission, to cope with the technical problemsInvolved. Up until this point the exercise of administrative discretion

for the purposeof safeguarding fish and other marine life and their places of habitation is a matterwhollywithin the exclusive province

of the Game, Fish and OysterCommission.The Legislature so provided. But in supplying the terms and conditions of sale, the concomitant of the preliminary

steps of making an application and securing

a permit,the Legislature felt that the chief executive

officerof the State,the Governor, shouldhave a voice. HiB authority

is limited

to determining

these mattersof publicpolicy. Underlying

the whole transaction, however,is the policymanifested by the Legislature, that,
"No special

privilege

or exc&dve right shallbe grantedto any person,association of persons,corporate or otherwise,

to take or carry away any of such products of sny territory

or to otherwise

operatein or upon sny Island,reef,bay, lake, river, creek, or bayou included in this chapter."
We feel that the foregoing discussion

will answer Questions 1, 2, and 4 in your letter.

Question

3 is answeredin Opinion No. O-2209,

but for the purpose of clarity

we add that no valid sale of all of any materialin a given area may be made, if the practical effect of the transaction will be to exclude other operators

from taking or carrying away any of such product from any territory,

reef,bay, lake, river, creek or bayou. The undoubted intentof the Legislature

was to protect

the public from the monopolyof any operator In any given territory.Game, Fish and Oyster Commissiou, Page 3 (0-2209-A)

In auswerto Question5, it is the opinion of this department, and you are respectfully advised

that a contract

of sale, an important ingredient of which Is the administrative determination

of the Commission

of non-in&y to fish and location, evidenced

in a permit, is not assignable. The statute does not concernItself, however,

with the transfer

or sale of material which has been removed

by au operator, Verytrulyyours APPROVED

WAY 21, 1940 /s/ Gerald C. Mann ATl!oRNRY

GENERALOFTKKAS ATl!ORREXGRiERALOFTEiAS

By /s/Walter R. Koch

WalterR. Koch Assistant

By /s/ James D. Smullen

James D. Smullen JDs:Rs:ul APPROVED OPIWIOR CoMMlTpE BY /s/ BWR CHAIRMAN