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 inspectiontax liability of shrimp imported to Brownsville from a Mexican port on a boat temporarilyregisteredunder the PanamanianFlag but actually having Brownsvilleas its home port,

Dear Sir:

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

"This Department is uncertain as to the application,ofHouse Bill 379, Section 10, Paragraph B, as it applies to a boat owned and operatedunder 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 processingplants, County, one at.San Carlos, in Hidalgo

and one inMission, Hidalgo County, Texas.,Mr. Miller purchased this boat from the Maritime Commissionof the United States, and has a temporaryregistrationunder the PanamanianFlag, 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 temporaryhome registeredport 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 exportnumber assigned to it, M.rIr,

Miller desires to use this cargo boat for the purpose of exporting shrimp from Mexico, These shrimpwill 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 overwater to Brownsvilleand there transported to their food processingplants for handlinggand after the shrimp have been processed,will be sold throughoutTexas and the United Statesgenerally6

'We shall appreciateyour opinion on the following questions:
"1, Is inspectiontax due on a cargo of shrimp or other ediblemarine productswhen brought into this State aboard the boat above described when said productswere brought in from outside of the jurisdictionallimits of this State?

"2* May a boat as above describedbe licensedwith a fish boat license and thereby be eligible for the above described operations without payment of inspectiontax?"
The pertinentprovisions of,House Bill 379, being Chapter 59, of the Acts of the GeneralLaws 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-ninthLegislature,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 endangersthe supplywithin the State; and whereas the State of Texas has no adequatemeans of supervisionand inspection of the sanitary conditions,and of sanitary control and inspectionof the personnel of . . .. .
Hon. H. D. Dodgen, page 3 (V-463)

unlicensedboats or vessels operating outside of the territorialwaters of this State and engaged in commercial fishing; and whereas suchboats and vesselsmay discharge their cargo and sell theirmarine 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~lfishGiz, which saidboat 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 inspectedat a port of entry as hereinafterprovided and found to be in a sanitary conditionunder the rules and regulationsas hereinafterprovided and shallhave paid or securedthe payment of the inspection fee or tax as hereinafterprovided for the inspectionthereof.
"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 othermarine 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 securitybond 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 provisionsof this Act and the jurisdiction of the State of Texas,within territorial limits as providedby law.
"l(d). The Game, Fish and Oyster Department shall provide a suitablenumber 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~ofentry,and then only after'notice and application to the officialand agent of the Departmentat such port of entry and after inspection, And the Department is hereby authorized,acting in conjunctionwith the State Health Department of Texas.to provide for rules and regulationsgoverning such ,inspection including suchbacteriological,chemical, and toxic tests asmay be required,and for blood tests and personal examinations of.the personnel and members of the crew of such unlicensed boats or vessels- and basedupon such rules and regulationsto determinewhether or not the unloading, discharge,processing, or sale of such cargo shallbeedetrimentalto the teJ;land welfare of the cltlzens of the State

; and no suit shall ever be filed or
d 'udgmentgranted 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 supersededand repealed in 1933 by Acts 43rd Legislature, ,lstC, S,, p0 85, which Act, as subsequentlyamended, is now ArticleW+a, V.P.C, The provisions thereofwith which we are here concerned respectivelyread:

"Section 1, The followingwords, terms and phrases used in this Act are hereby defined as follows:
"(a) A 'commercialfishermanP is any person who takes fish or oysters or shrimp
or other edible aquaticproducts 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 operatea 0 0 0boat D o 0 for the purpose of catching
or taking any edibleaquatic life from the waters of this state for pay, barter, sale orHon. H. D. Dodgen, page 5 

### (V-463)

exchange, the proper license provided for in thisAct privileging them so to do shall first be procuredby suchperson 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'sLicense, fee Three Dollars (#3.00).

n

. . . 

### "(7). Fish Boat License, for boats equippedwith a motor of any kind orwith sails, feeThree 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. 

### 76Ad again imended in 1947 (Acts H. B. 379, Ch. 59, p. 86). The first two sections thi;eof respectivelyread:

"Section 1. *Anon-resident commercial fisherman' for the purposes of thisAct is hereby defined as follows:
"Any personwho is a citizen of any other state, or any personwho 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 associationsand corporations who have no4 continuallyhad 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 saltwaters of this State for pay or for the purpose of sale,barter or exchange.'
"Section 2. A 'non-residentcommercial fishingboat' for the purposes of thisAct is hereby defined as follows:
"Any boat or vessel,which is registered in any other state, orwhich has not continuallyHon, 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, associationof 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 edibleaquatic 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 $1200~00from 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 saltwaters of this State,

Section

### 4 likewise requires a non-resident commercial fishingboat to obtain a license to be known as "Non-residentCommercial 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 tidalwaters of this State,

We think it is apparent that a boat license fssued under the provisionsof Article 93i+a may properly be termed "a residential commercialfishing boat license," Set, &a, Art, 934b-1, V,P,C, A boat license issuedunder the provisions of Sections 2 and 4 of Article 93l+b-1is a "Non-residentCommercialFishing Boat License." A boat
or vessel licensedunder either of theseArticles is granted the privilege of taking, or assisting in taking
or catching fish, shrimp, oysters or any,other edible aquatic life from the tidal saltwaters 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 fishingboat or vessel"pwfthin 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 commercialfishing",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 othermarine products, or to sell or process the samewithin this State until the
same has been inspectedat 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 othermarine 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 submittedby Lulu is not "engaged in commercial fishing"and 1ou, 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 inspectiontax, does not apply.

SUMMARY

A boat registered in the Republic of Panama and used exclusivelyas a cargoboat for exporting shrimp fromMexico 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 subjectto the payment of :hc &poction fee or tax imposedby Section 10 of Art-l:le934b-1,V. P. C., on cargoes of boats or vessels engaged in commercial fisning,when the shrimp are "purchased at
a NiexicanPort, and are packaged and exported under a Mexican Export License and Bill of Lading."

Yours very truly,

ATTORNEY GENERAL OF TEXAS

BY&~ DavidWuntch

. Assistant