Game, Fish and Oyster Commission 

Austin, Texas 

Attention: Mr. H.~ D. Dodgen 

Dear Sir: 

Opinion No. O-5372 

Re: May any 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 

him by the requisite authorities of the Game, Fish 

and Oyster Commission authorizing him to do so? 

And other related questions. 

We have 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 fork increase in 

food production, an added number of requests are 

being made for 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 nongame fish in accordance with the provisions of the 

above mentioned H. B. 820. 

“This Department respectfully requests your 

opinion on the follow+g quest ions; 

“1. 

‘,! i 

May any Orson ,‘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 

inland bays or tide waters of this State to the Gulf 
Game, 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. May any 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. May a 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 now prohibited by law? May the holder of such permit legally proceed, when holding 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. May the Game, Fish and Oyster Commission issue permits for the use of nets and seines having 

smaller mesh or of greater length than is otherwise 

permitted by law?” 

House Bill 820, referred to in your letter, is the 

same as Article 952L-11, Vernon’s Annotated Penal Code. we 

are primarily interested in Section 3 thereof, part of which 

provides as follows: 

II 

. . . 

“In order to control such nongame marine species and to permit their utilization and when it 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 Gamei Fish 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. . . 

“(b) It shall be ~unlawful for the holder of a 

permit issued hereunder to operate any~net or device 

that is not now legal 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,e 3,~ (Q-,5372) 

net is now prohibited by law. And it shall 

be unlawful, to .‘operate a jdevice 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 ~of thi’s Act for the taking and posse,ssion of ‘any game fish or any other, 

species of salt-water fish exc’epting those specfically named in 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 

We quote as follows from 41 Words and Phrases 624, as 

to the waters which come within the’~category of “tidel waters:” 

“Tide. waters are waters~ whether salt or ” 

fresh, wherever the ebb and kow of the tide of 

the sea is felt’. 

Mass. 441, 447.” 

Commonwealth v. Vincent, 108 

Article 941,~ VernonrsAnnotated Penal Code, makes it 

use nor drag 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 asp fo i lows: 

“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 minnow seine, ~,of not more than twenty 
Game, 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, c he 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 mesh of all seines and nets 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 and for 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,s it 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 named and defined waters during the 

period beginn&ng August 15 and ending May 15 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 shrimp 
Game, 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 1, is prohibited from being used in taking or catching ‘fish and/or shrimp, 

unless such’setie,‘strike net, gill~net, trammel 

net, or shrimp trawl 1s~ ‘on~board a vessel when such 

vessel is at ports or in,a channel while en route to 

or from the Gulf of Mexico.” 

There may be 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. We have mentioned articles 941, 947 

and 952~10 for the ‘purpose of showing the established policy 

of the State to inhibit the use of trammel nets 

4 

set nets, and 

gill nets those types of nets specifically men ioned 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 game or nongame. Therefore, the Legislature not only 

made the use of such nets in certain tidal waters a penal offense, but to make the purpose of the statutes more effective, 

made the 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 

Mexico o (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 nongame fish from the tidalwaters of this State by means 

and methods not theretofore,permissible under the law. For instance, it is a matter of common knowledge that some nongame 

fish are too small to be taken by seines and nets with meshes 

as large as the minimum size prescribed by section la of Article 

941, supra, hence the law contemplates the Commission may grant 

a permit for use of a seine or net with a smaller mesh or greater length than those which may be used for taking game fish. 

However, the waters in which such seines or nets may be 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 and nets as may be approved by the commission 
. .._. 

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

for taking nongame fish may not be lawfully used in any of 

the waters named or defined by ,Articles 941 

in any other waters not embraced in such 

947, 952-10, or 

sir c icles, 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 nongame fish in waters 

where the use of same by the permittee is made unlawful. 

We trust the foregoing satisfactorily answers all 

your questions. 

Very truly yours, 

ATTORNEY GENERAL OF TEXAS 

By /s/ Fred C. Chandler 

Fred C. Chandler, Assistant 

By /s/ Robert 0. Koch 

Robert 0. Koch 

APPROVED JUL 9, 1943 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

ROKsff:wb