Game, Fish and Oyster Commission

Austin, Texas Attention: Mr. H.~D. Dodgen

Dear Sir: Opinion No. O-5372 Re: Mayany person legally use a net or seine for the purpose of taking mullet ,within, a distance of less than one mile from a pass leading from the in- ,land bays or tide waters of this State to the Gulf of Mexico other than a cast net used in taking bait, provided such person holds a permit issued to himby the requisite authorities of the Game, Fish and Oyster Commission authorizing himto do so? Andother related questions. Wehave received your letter of recent date requesting our opinion upon the above stated question and other related matters. Your letter r,eads as follows:

“Because of present demands forkincrease in food production, an added number of requests are being madefor permits to be issued under the terms of House Bill 820 Acts of the Regular Session, Forty-sevenths Legjslature. The concern of the Game, Fish and Oyster Commission regards the,issuance of such permits authorizing the taking of mullet from certain of the ,tidal waters, of this State where the ;I; of nets and seines is otherwise prohibited by Competent authorities of the Game Fish ,and Oyster Commission have classified mulled as a nongamefish in accordance with the provisions of the above mentioned H. B. 820.

“This Department respectfully requests your opinion on the follow+g questions;

“1. ‘,!i Mayany Orson ,‘legally ,,usea net or seine for the’purpose’of taking mullet within a distance of less than one mile from a pass leading from the inland bays or tide waters of this State to the GulfGame,Fish and Oyster Commission, page 2 (O-5372)

of Mexico other than a cast net used in taking bait, provided such person holds a permit issued to ‘him by the requisite authorities of the Game,Fish and Oyster Commission authorizing him to do so?’

“2. Mayany person legally use a net or seine for the purpose of taking mullet or other non-game fish from any of the tidal waters of ~thisstate not mentioned in Article 941, 1925 P.C. as emended?

“3. Maya permit be legally issued by the Game, Fish and Oyster Commission to any person or persons authorizing the taking of mullet or other inan-game fish by use of nets or seines from any of the tidal waters of this State in which a trammel net,, set net, or gill net is nowprohibited by law? Maythe holder of such permit legally proceed, whenholding such permit to operate in such restricted areas by taking m&et and/or other non-game fish by use of nets and seines?

“4. Maythe Game, Fish and Oyster Commission issue permits for the use of nets and seines having smaller meshor of greater length than is otherwise permitted by law?” House Bill 820, referred to in your letter, is the sameas Article 952L-11, Vernon’s Annotated Penal Code. we are primarily interested in Section 3 thereof, part of which provides as follows:

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“In order to control such nongamemarine species and to permit their utilization andwhenit has been found that the taking of such nongame’species will not adversely affect the conservation ,of game species, it shall be the duty of the GameiFish and Oyster Commission to issue permits for ,the use of any net or device for the taking of sudh nongame species under the terms, herein provided. conditions, and stipulations

‘I.

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“(b) It shall be ~unlawful for the holder of a permit issued hereunder to operate any~net or device that is not nowlegal in any of the tidal waters of this state in which a trammel net, set net, or gill.

Game,Fish and Oyster Commission, p.ag,e3,~ (Q-,5372)

net is nowprohibited by law. Andit shall be unlawful, to

.‘operate ajdevice permitted under the terms of this Act until ‘such deviicehas been inspecte.d, approved, ,and’~ tagged, and while: in, dperation bearsa ‘metal~tag~identifying said de~vicg issued by said, Com&s~Sion.~; “
~’ :’

“(c) It shall be unlawful to use a device otherwise prohibi,ted by the.laws of this State but permitted under the ter:ms~ofthi’s Act for the taking and posse,ssion of ‘any gamefish or any other, species of salt-water fish exc’epting those specfically namedin the permiC authorizing the use, off said devices or to operate or permit ,the operation of such a device.,in a manner that will or does needlessly or carelessly injure marine products other than those’permitted to be taken inthe especially authorized net; ~. . .‘I Wequote as follows from 41 Words andPhrases 624, as to the waters which comewithin the’~category of “tidel waters:”

“Tide. waters are waters~ whether salt or ” fresh, wherever the ebb andkow of the tide of the sea is felt’

. Mass. 441, 447.” Commonwealthv. Vincent, 108

Article 941,~VernonrsAnnotated Penal Code, makesit use nordrag any seine, and shrimp other than orel. artificial bait, trot line, set line,,‘or cast-net or minnow’~seine of ’not more than twenty feet in length, for catchin,g bait within certain tidal waters therein named,‘including waters within one mile of any pass, stream or canal leading from done‘body of, Texas or coastal waters into another body of such waters, providing that nothing in this article shall prevent the use, of a spear or gig and light for the purpose of taking, flounders.

Secti~on la of Arti,cle’ 941 supra, and 945, Vernon’s Ann. penal Code, read respectively aspfoilows:

“Provided that

-‘it,,shall be’unlawful fork any person to drag any‘seine, or use any drag seine, or shrimp trawl for catching fish’or shrimp;‘or to take or catch fish or, shrimp with any de,vice other than with the ordinary pole and line, casting rod, rod and reel, artificial, bait, trot line, set line, or cast net, or minnowseine,~,ofnot more than twentyGame, Fish and,Oyster Commission, page 4 (O-5372)

feet in length for catching bait or to use a set net, trammel net or strike net, che meshes of which shall not be less than one and one-half inches fr,om knot to knot, in any of the tidal bays, streams, bayous, lakes, lagoons or inlets, or parts of such tidal waters of this &ate ‘not mentioned in Section 1 hereof .I’

“The meshof all seines andnets used for taking fish in salt waters of this State, not including the bag, shall not be less than one and one-half inch square mesh. The mesh of the bags andfor fifty feet on each side of the bags, shall not be larger than a one inch square mesh. No seine or net of any kind of over two thousand. feet shall be dragged or pulled in the salt water of this State,, and any person dragging such seine, or dragging two or more seines which are connected or’ tied together with a combined length of more than two thousand feet, shall be upon first conviction thereof fined not less than twenty nor more than one hundred dollars; upon second conviction thereof shall be fined not less than fifty nor more than two hundred dollars and shall have his license revoked for a period not iess than thirty nor more than ninety days; and upon third conviction thereof shall be confined in jail for not less~ than thirty nor more than ninety days, and shall have his license revoked for a period of not less than one year.” Article 947 of the Penal Code make,sit an offense to catch fish or attempt to catch fish in any of the bays or navigable streams of the State, withinthe limits or within one mile of the limits of any city or town in this State with seines, set nets. trammel nets, or by any of the, other described methods therein named.

Article 952L-10, Vernon’s Ann. Penal~Code, also makes it a penal offense to use strike nets. sill nets. t amm I netg, or shrimp trawls as defined by the statutes for thertakeing of fish and shrimp from certain namedand defined waters during the period beginn&ng August 15 and ending May15 of each year. Safd article makes it unlawful for any person to use in said waters during the closed season any strike net, gill net, trammel net or shrimp trawl contrary to provisions of article 941, supra.

Section 2 of said article provides:

“It shall be unlawful to have in possession any seine, strike net, gill’net, trammel net, or shrimpGame, Fish and Oyster Commission, page 5’ (O-5372)

trawl where in or on any of the tidal waters of this State the use,of ‘said seine strike newt gill net, trammel net,, or shrinp’.traw is prohibited from be1, ing used in taking or catching ‘fish and/or shrimp, unless such’setie,‘strike net, gill~net, trammel net, or shrimp trawl 1s~‘on~board avessel when such vessel is at ports or in,a channel while en route to or from the Gulf of Mexico.” There maybe other statutes specifically inhibiting the use of seines or’any or all of the types of nets above mentioned in certain tidal waters for the purpose of taking or attempting to take fish. Wehave mentioned articles 941, 947 and 952~10 for the ‘purpose of showing the established policy of the State to inhibit the use of trammel nets4 set nets, and gill nets those types of nets specifically menioned in subsection (b) of section 3 of House Bill 820, and seines in certain tidal waters of this State, for the purpose of taking or attempting to take from said waters fish of any and all kitis, whether gameor nongame. Therefore, the Legislature not only madethe use of such nets in certain tidal waters a penal offense, but to makethe purpose of the statutes more effective, madethe possession of any seine, strike net gill net or trammel net in any of the tidal waters of this Siate, where the use of seines or said nets is prohibited, a penal offense, unless the seine or nets is on board a vessel when such vessel is in port or in a channel while en route to or from the Gulf of Mexicoo (Art. 952L-10, Sec. 2)

It is perfectly clear in our minds that the Legislature did not attempt to change the established policy of the State, above set forth, by the passage of House Bill No, ,820, but to the contrary took every,precaution therein to preserve that policy, as evidenced by the plain provisions of subsection (b) and (c) of section 3 thereof,, quoted above*

The purpose of this statute is to permit the taking of nongamefish from the tidalwaters of this State by means and methods not theretofore,permissible under the law. For instance, it is a matter of commonknowledge that somenongame fish are too small to be taken by seines and nets with meshes as large as the minimumsize prescribed by section la of Article 941, supra, hence the law contemplates the Commission maygrant a permit for use of a seine or net with a smaller meshor greater length than those which maybe used for taking gamefish. However, the waters in which such seines or nets maybe legally used ape limited by section (b) to those tidal waters where it is lawful to use a trammel net, set net, or gill net. Therefore, such seines andnets as maybe approved by the commission. .._.

Game, Fish and Oyster Commission, page 6 (O-5372)

for taking nongamefish maynot be lawfully used in any of the waters namedor defined by ,Articles 941 in any other waters not embraced in such 947, 952-10, or sir cicles, if there be such, where the use of such nets are inhibited by statute or by thecommission under authority of law. It is evident that the Commission has no,authority to grant a permit for the use of a net or other device for taking nongamefish in waters where the use of sameby the permittee is madeunlawful.

Wetrust the foregoing satisfactorily answers all your questions. Very truly yours, ATTORNEY

GENERAL

OFTEXAS By /s/ Fred C. Chandler Fred C. Chandler, Assistant By /s/ Robert 0. Koch Robert 0. Koch APPROVED

JUL9, 1943 /s/ Gerald C. Mann ATTORNEY

GENERAL

OFTEXAS APPROVED:

OPINIONCOMMITTEE BY: BWB,CHAIRMAN ROKsff:wb