THE ATTBIZNEY GENERAL 

OF TEXAS 

Auwrmr. TEXAS 78711 

aoBN L axATroRNEY 0 -AZ 

May 22, 1975 

The Honorable Clayton T. Garrison 

Executive Director 

Parks & Wildlife Department 

John H. Reagan Building 

Austin, Texas 78701 

Opinion No. H- 613 

Re: Authority of cities to adopt 

fishing regulations which differ 

from those promulgated by the 

Parks & Wildlife Department. 

Dear Mr. Garrison: 

You have requested our opinion regarding the authority of cities to 

adopt fishing regulations which differ from those promclgated by the Parks 

and Wildlife Department. Specifically, you ask: 

1. Whether an incorporated city or other local governmental entity may adopt and enforce, with respect to 

fish caught in the public waters under its control, 

size and bag limits which differ from those imposed 

by the Parks & Wildlife Commission pursuant to the 

Uniform Wildlife Regulatory Act. 

2. Whether an incorporated city or other local 

governmental entity may adopt and enforce, with 

respect to the public waters under its control, an order 

establishing a minimum age requirement below which 

an individual is prohibited from fishing. 

Article 4026, V. T . C. S., declares that 

All fish and other acquatic animal life contained in the 

fresh water rivers, creeks and streams and in lakes 

or sloughs subject to overflow from rivers or other 

streams within the borders of this State are . . . the 

property of the people of this State. 

The public enjoys a general right to fish in the public streams and waters, 

subject to regulations imposed by the State. Diversion Lake Club v. Heath, 

58 S. W. 2d 566 (Tex. Civ. App. -- Austin 1933), aff’d, 86 S. W. 2d 441 

(Tex. sup. 1935). 

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The Honorable Clayton T. Garrison - Page 2 

The Uniform Wildlife Regulatory Act, article 978j-1, Penal 

Auxiliary Laws, initially adopted in 1967, empowered the Parks and 

Wildlife Commission, in particular counties, to: 

by proclamation, rule or regulation, from 

time to time, provide the means and the method 

and the place and manner in which . . . wildlife 

resources may be lawfully taken. Sec. 2. 

The Act further specifies that: 

All game laws. . . shall be in full force and effect 

until the Parks and Wildlife Commission shall, in 

accordance with this Act, issue a proclamation, 

rule or regulation dealing with the subject matter 

of the county affected by such presently existing 

game law. Sec. 18. 

You state that a number of cities have inquired as to whether they may 

impose size or bag limits which differ from those presently in effect by 

virtue of regulations already promulgated by the Parks and Wildlife 

Commission. We limit our opinion to those waters defined in article 4026 

which are the fresh water rivers, creeks and streams and lakes and 

sloughs subject to, overflow from rivers or other streams. It is well 

established that: 

Municipal ordinances must conform to the limitations 

imposed by the superior statutes, and only where the 

ordinance is consistent with them, and each of them, 

will it be enforced. Bolton v. Sparks, 362 S. W. 2d 

946, 950 (Tex. Sup. 1962). 

Although a city is at liberty to act: 

[A] s long as the state does not, in its Constitution 

or by general statute, cover any field of the activity 

of the cities of this state any given city is at liberty 

to act for itself. But when the state itself steps in 

and makes a general law and applies such law to all 

cities of a certain class. . . no city of the sane class 

is authorized. . . to enact contrary legislation. 

of Beaumont v. Fall, 291 S. W. 202, 205-06 (Tex. %mm. 

App. 1927). 

p. 2715 
The Honorable Clayton T. Garrison - Page 3 

Since the Legislature has conferred upon the Parks and Wildlife 

Commission the authority to prescribe the “manner in which wildlife 

resources may be lawfully taken, ” since the Commission has imposed 

size and bag limits upon certain categories of fish in certain geographical 

areas, and since the right of the State to control the public waters is 

paramount, it is our opinion that an incorporated city or other local 

governmental entity may not adopt and enforce, with respect to fish 

caught in the public waters under its control, size and bag limits which 

differ from those imposed by the Parks and Wildlife Commission pursuant 

to the Uniform Wildlife Regulatory Act. 

In response to your second question, we believe that a city is also 

prohibited from adopting an order which establishes a minimum age requirement for the privilege of fishing. Article 4032b-1, V. T. C. S., requires a 

fishing license of all persons at least 17 and under 65 years of age. No age 

restrictions are imposed therein on the privilege of fishing. Furthermore, 

article 4032~ grants to: 

All residents of this State who are 65 years of age or 

over and all persons who are under 16 years of age 

shall be entitled to all hunting and fishing privileges 

for which a commercial license is not required, 

without obtaining a license for such non-commercial 

privileges and without payment of any fee. 

It is thus apparent that the imposition of a minimum age requirement 

would contravene the clear intent of article 4032~ to extend to persons 

under 16 years of age the privileges of non-commercial fishing. An 

order imposing such a requirement would not be “consistent with statute, ” 

Bolton v. Sparks, m, and a city would thus be precluded from adopting 

and enforcing it. 

SUMMARY 

An incorporated city or other local governmental entity 

may not adopt and enforce, as to the public waters 

under its control, size and bag limits on fish which differ 

from those promulgated by the Parks and Wildlife Commission 

pursuant to the Uniform Wildlife Regulatory Act, nor an order 

establishing a minimum age requirement below which an 

individual is prohibited from fishing. 

Attorney General of Texas 

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The Honorable Clayton T. Garrison - Page 4 

ROBERT HEATH, Chairman 

Opinion Committee 

jwb 

p. 2717