R-962 

THEA ORNEXGENERAI. 

December 23, 1947 

Hon. H. D, Dodgen 

Executive Secretary 

Game, Fish & Oyster 

Austin, Texas 

Commission 

Opinion No. V-463 

Re: The inspection tax 

liability of shrimp 

imported to Brownsville from a Mexican port on a boat 

temporarily registered under the 

Panamanian Flag but 

actually having 

Brownsville as its 

home port, 

Dear Sir: 

Your letter of November 24, 1947, is as follows: 

"This Department is uncertain as to the 

application,of House Bill 379, Section 10, 

Paragraph B, as it applies to a boat owned 

and operated under the following conditions: 

"The boat in question, The Lulu, is owned by Robert P. Miller, of McAllen, Hidalgo 

County, Texas, a native Texan. Mr. Miller 

has lived in Hidalgo County for many years, 

Mr. Miller and~his brother own two food processing plants, 

County, 

one at. San Carlos, in Hidalgo 

and one in Mission, Hidalgo County, 

Texas ., Mr. Miller purchased this boat from 

the Maritime Commission of the United States, 

and has a temporary registration under the 

Panamanian Flag, inasmuch as the vessel has 

been used by Miller in South American fruit 

trade. The boat has never been used in any 

type of fishing operations. This boat, while 

its temporary home registered port under the 

admiralty laws is the City of Panama, actually 

operates out of Brownsville, Cameron County, 
Hon. He I), Dodgen, page 2 (V-463) 

T~xw, as its home port. This boat has a 

United States customs export number assigned 

to it, M.rIr, Miller desires to use this cargo 

boat for the purpose of exporting shrimp from 

Mexico, These shrimp will not be taken from 

boats at sea, but will be purchased at a Mexican port, packaged and exported under a Mexican export license and bill of lading, and 

brought over water to Brownsville and there 

transported to their food processing plants 

for handlingg and after the shrimp have been 

processed, will be sold throughout Texas and 

the United States generally6 

'We shall appreciate your opinion on the 

following questions: 

"1, Is inspection tax due on a cargo of 

shrimp or other edible marine products when 

brought into this State aboard the boat above 

described when said products were brought in 

from outside of the jurisdictional limits of 

this State? 

"2* May a boat as above described be licensed with a fish boat license and thereby be 

eligible for the above described operations 

without payment of inspection tax?" 

The pertinent provisions of,House Bill 379, being Chapter 59, of the Acts of the General Laws of the 

50th Legislature, Regular Session, p0 86 is an amendment 

of Vernon's Annotated Penal Code, Art, 9$&-l, and is as 

follows: 

T3eco 2, That Section 10 of Article 

93413-1, Penal Code of Texas, the same being 

Acts 1945, Forty-ninth Legislature, page 

78i chapter 55, Section 1, be amended so as 

to be and hereafter read as follows: 

"QSection 10, Whereas, the taking of 

fish and marine life outside of the territorial waters of the State of Texas affects 

and endangers the supply within the State; 

and whereas the State of Texas has no adequate means of supervision and inspection 

of the sanitary conditions, and of sanitary 

control and inspection of the personnel of 

. . . 
. . 

Hon. H. D. Dodgen, page 3 (V-463) 

unlicensed boats or vessels operating outside of the territorial waters of this 

State and engaged in commercial fishing; 

and whereas such boats and vessels may discharge their cargo and sell their marine 

products in Texas ports without license or 

supervision; and whereas such practice endangers the life and health of the citizens 

of the State of Texas; and the supply of 

game and fish within the State; therefore: 

"'(a). It shall be unlawful for any 

boat or vessel engaged in commerci~a~l fishGiz, which said boat or vessel is 

under Article 9311. of the Penal Code of Texas 

: not licensed 

as amended, to~discharge or unload any commercial cargo of fish; shrimp, oysters or 

other marine products, or to sell or process 

the same within the State of Texas unless and 

until the same has been duly inspected at a 

port of entry as hereinafter provided and 

found to be in a sanitary condition under the 

rules and regulations as hereinafter provided 

and shall have paid or secured the payment of 

the inspection fee or tax as hereinafter provided for the inspection thereof. 

"P(b). There is hereby levied an inspection fee or tax of Ten Dollars ($10) for 

each one hundred (100) pounds or fraction 

thereof of any cargo of fish, shrimp, oysters or other marine products sought to be 

discharged or unloaded from any unlicensed 

commercial fishing boat or vessel within the 

territorial limits of Texas. And the same 

shall be paid or secured to be paid by a cash 

or security bond made payable to the Game, 

Fish and Oyster Commission of Texas, as a 

prerequisite for inspection and the unloading 

and discharge thereof. 

"'(c)a The Game, Fish and Oyster Commission is hereby authorized to employ such 

necessary personnel and patrol boats in order 

to enforce the provisions of this Act and the 

jurisdiction of the State of Texas, within 

territorial limits as provided by law. 

"l(d). The Game, Fish and Oyster Department shall provide a suitable number of ports 
. . 

Hon. H, D0 Dodgen, Page 4 (V-463) 

of entry for such unlicensed commercial fishinp vessel, and no such cargo as above provided mav be unloaded or discharned extent in 

such ports ~of entry, and then only after'notice and application to the official and agent 

of the Department at such port of entry and 

after inspection, And the Department is hereby authorized, acting in conjunction with the 

State Health Department of Texas.to provide for 

rules and regulations governing such ,inspection including such bacteriological, chemical, 

and toxic tests as may be required, and for 

blood tests and personal examinations of.the 

personnel and members of the crew of such unlicensed boats or vessels- and based upon such 

rules and regulations to determine whether or 

not the unloading, discharge, processing, or 

sale of such cargo shall beedetrimental to the 

teJ;land welfare of the cltlzens of the State 

; and no suit shall ever be filed or 

d 

'udgment granted against the Game, Fish and 

yster Commission, its officials or agents by 

reason of any delay resulting in the damage to 

any cargo or by reason of the failure to grant 

any permit for the unloading, discharge, processing or sale of such cargoQPw 

Article 934, Penal Code of 1925, mentioned in 

subsection (a] of Section 10 was superseded and repealed 

in 1933 by Acts 43rd Legislature, ,lst C, S,, p0 85, which 

Act, as subsequently amended, is now Article W+a, V.P.C, 

The provisions thereof with which we are here concerned 

respectively read: 

"Section 1, The following words, terms 

and phrases used in this Act are hereby defined as follows: 

"(a) A 'commercial fishermanP is any 

person who takes fish or oysters or shrimp 

or other edible aquatic products from the 

waters of this State, for pay,, or for the 

purpose of sale, barter or exchange. 

"Section 2, Before any person in this 

State shall engage in the business of a ?commercial fisherman" D o 0 or use or operate a 

0 0 0 boat D o 0 for the purpose of catching 

or taking any edible aquatic life from the 

waters of this state for pay, barter, sale or 
Hon. H. D. Dodgen, page 5 (V-463) 

exchange, the proper license provided for in 

this Act privileging them so to do shall first 

be procured by such person from the Game, Fish 

and Oyster Commission of Texas or from one of 

its authorized agents." 

USectlon 3. The license and the fees to 

be paid for same are hereby provided for in 

this Act and are as follows: 

"(1) Commercial Fishermen's License, 

fee Three Dollars (#3.00). 

n . . . 

"(7). Fish Boat License, for boats equipped with a motor of any kind or with sails, 

fee Three Dollars ($3.00)." 

Article 934b-1 V.P.C. 

(Acts 46th Leg. H. B. 683 p. 234) 

was enacted In 1939 

amended in 1945 (Acts 

Ch. $5, p. 76 Ad again imended in 1947 (Acts 

H. B. 379, Ch. 59, p. 86). The first two sections thi;eof respectively read: 

"Section 1. *A non-resident commercial 

fisherman' for the purposes of this Act is 

hereby defined as follows: 

"Any person who is a citizen of any 

other state, or any person who has not continually been a bona fide inhabitant of this 

State for a period of time more than twelve 

(12) months; the word 'person' shall include 

partnership associations and corporations 

who have no4 continually had a bona fide 

place of business in this State for a period 

of time more than twelve (12) months, and 

who takes, assists in taking or catching, 

fish or shrimp or oysters, or any other edible aquatic life from the tidal salt waters 

of this State for pay or for the purpose of 

sale, barter or exchange.' 

"Section 2. A 'non-resident commercial 

fishing boat' for the purposes of this Act 

is hereby defined as follows: 

"Any boat or vessel, which is registered 

in any other state, or which has not continually 
Hon, H, D. Dodgen, page 6 (V-463) 

been registered in this State for a period 

of time more than twelve (12) months, or 

which is not owned by any person, partnership, association of persons or corporation whic'h has had a bona fide place of 

business in this State for a period of time 

more than twelve (12) months, and which is 

used for the purpose of taking, or assist 

in taking or catching, fish, shrimp - 

ters or any other edible aquatic IiPe"?zom 

the tidal salt waters of this State for pay 

or for the purpose of sale, barter or exchange," 

Section 3 requires a non-re~sident commercial 

fisherman to obtain a license, the fee for which is 

$1200~00 from the Game, Fish and Oyster Commission, or 

one of its authorized agents, before he may legally take 

or assist in taking any fish, shrimp or oysters or any 

other edible aquatic life from the tidal salt waters of 

this State, 

Section 4 likewise requires a non-resident commercial fishing boat to obtain a license to be known as 

"Non-resident Commercial Fishin 

for which is $2500,00 from the 8 

Boat License," the fee 

ame, Fish and Oyster Commission or one of its authorized agents before such boat 

may legally be used for the purpose of taking or assisting in taking any fish, shrimp oysters or any other edible aquatic life from the tidal waters of this State, 

We think it is apparent that a boat license fssued under the provisions of Article 93i+a may properly be 

termed "a residential commercial fishing boat license," 

Set, &a, Art, 934b-1, V,P,C, A boat license issued under 

the provisions of Sections 2 and 4 of Article 93l+b-1 is a 

"Non-resident Commercial Fishing Boat License." A boat 

or vessel licensed under either of these Articles is 

granted the privilege of taking, or assisting in taking 

or catching fish, shrimp, oysters or any,other edible 

aquatic life from the tidal salt waters of this State for 

pay or for the purpose of sale, barter or exchange, A 

boat or vessel so licensed is "engaged in commercial 

fishing" when used for the purpose or business for which 

it was licensed, and is a "commercial fishing boat or 

vessel" p wfthin the meaning of these statutes, 

We construe Subsection (a), Section 10 of Article 93l+b-1, to make it unlawful for any boat or vessel 

wenpaged in commercial fishing", which is - not licensed 
Hon. H. D. Dodgen, page 7 (V-463 1 

under the laws of this: State as a residential commercial 

fishing boat, to discharge or unload any commercial cargo of fish, shrimp, oysters or other marine products, or 

to sell or process the same within this State until the 

same has been inspected at a port of entry; found to be 

in a sanitary condition, and the inspection fee or tax, 

provided for in Subsection (b), paid or secured as therein provided. 

;j,bsection (b) of Section i0 levies an inspection fee or tax of Ten Dollars ($10) for each one hundred 

(100) pounds or fraction thereof of any cargo of fish, 

shrimp, oysters or other marine products sought to be 

discharged or unloaded from any unlicensed commercial 

fishing boat or vessel within the territorial limits of 

Texas. 

However, under the facts submitted by 

Lulu is not "engaged in commercial fishing" and 1 

ou, The 

9 not a 

llcomaercial fishing boat orvessel", within the meaning 

of Articles 934a and 93413-1, Vernon's Penal Code. Therefore, Section 10 of Article 934b-1, Vernon's Penal Code, 

which provides for an inspection tax, does not apply. 

SUMMARY 

A boat registered in the Republic of 

Panama and used exclusively as a cargo boat 

for exporting shrimp from Mexico to Brownsville, Texas is not "a commercial fishing 

boat" and is not "engaged in commercial fish- 

. " within the meaning of those terms as 

i%; in Article 934a and Articie 934b-1, V. 

0 0.I a.-_ is not subject to the payment of 

:hc &poction fee or tax imposed by Section 

10 of Art-l:le 934b-1, V. P. C., on cargoes 

of boats or vessels engaged in commercial 

fisning, when the shrimp are "purchased at 

a Niexican Port, and are packaged and exported 

under a Mexican Export License and Bill of 

Lading." 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

BY&~ 

David Wuntch . 

Assistant