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..%TT<,~liiS.KBi(G~,LX I!: I&WA. 

Game,.Fish and Oyster Commission 

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 Governor IV 

any other public official before such permit is effective? 

“2. C&n an outright sale of materials be ma&e by the .bommisdon, with the approval of the Governor under Article 4053d? 

"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 mentioned in said article of 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 purchaser have 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 clarify our holding in Opinion No. o-2209, 

the enswers to each of your questions will suggest themselves. In that opinion, we traced the'legislative history~of Articles 4053 and 4053a and found 

that they were originally part and parcel of the same bill. They muSt,be construed together. 
Game, Fish and Oyster Commission, Page 2 (0-2209-A) 

Article 4053 (as originally enacted, Section 5 of Chapter 68, Acts 

1911) provides that "Anyone desiring to purchase . . . mudshell" is directed 

to make written application to the Gams, Fish, and Oyster Conunission. If the 

Costnlssion finds in exercising its admlnistrative judgment that the operation 

will not injuriously affect the location and the marine life therein, a permit 

may be granted to operate in the territory described in the application. 

Article 4053, then, from the time of its original enactment until 

the present time has contemplated the purchase of mudshell and other materials, 

and as a condition precedent to the sale provided for 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 thereof or 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 change or otherwise Injuriously affect any current that would affect navigation". 

With respect to these flr@ngs, the Governor of the State has no 

concern. Instead, the Legislature has provided a specialized, highly trained 

Instrumentality, the Game, Fish and Oyster Commission, to cope with the technical problems Involved. Up until this point the exercise of administrative 

discretion for the purpose of safeguarding fish and other marine life and their 

places of habitation is a matter wholly within the exclusive province of the 

Game, Fish and Oyster Commission. 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 officer of the State, the Governor, should have a voice. HiB 

authority is limited to determining these matters of public policy. 

Underlying the whole transaction, however, is the policy manifested 

by the Legislature, that, 

"No special privilege or exc&dve right shall be granted to 

any person, association of persons, corporate or otherwise, to 

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

otherwise operate in 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 answered in Opinion No. O-2209, but for the purpose 

of clarity we add that no valid sale of all of any material in 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 intent of 

the Legislature was to protect the public from the monopoly of any operator 

In any given territory. 
Game, Fish and Oyster Commissiou, Page 3 (0-2209-A) 

In auswer to Question 5, 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 concern Itself, 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 

Walter R. Koch 

Assistant 

By /s/ James D. Smullen 

James D. Smullen 

JDs:Rs:ul 

APPROVED 

OPIWIOR 

CoMMlTpE 

BY /s/ BWR 

CHAIRMAN