# 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 inthe public waters under its control, size andbag 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 inthe fresh water rivers, creeks and streams and inlakes or sloughs subject to overflow from rivers or other streams within the borders ofthis State are . . .the property ofthe people ofthis State. The public enjoys a general right to fish inthe public streams andwaters, subject to regulations imposed by the State. Diversion Lake Club v. Heath, 58 S.W. 2d 566 (Tex. Civ. App. -- Austin 1933), aff’d, 86S.W. 2d 441 (Tex. sup. 1935).

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The Uniform Wildlife Regulatory Act, article 978j-1, Penal Auxiliary Laws, initially adopted in 1967, empowered the Parks and Wildlife Commission, inparticular counties, to:

by proclamation, rule or regulation, from time to time, provide the means and the method and the place and manner inwhich

. . . wildlife resources may be lawfully taken. Sec. 2. The Act further specifies that:

All game laws.

. .shall be infull force and effect until the Parks andWildlife Commission shall, in accordance with this Act, issue aproclamation, rule or regulation dealing with the subject matter ofthe county affected by such presently existing game law. Sec. 18. You state that a number of cities have inquired as towhether 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 inarticle 4026 which are the fresh water rivers, creeks and streams andlakes and sloughs subject to,overflow from rivers or other streams. Itis well established that:

Municipal ordinances must conform tothe limitations imposed by the superior statutes, and only where the ordinance is consistent with them, and each ofthem, will itbe enforced. Bolton v. Sparks, 362 S.W. 2d 946, 950 (Tex. Sup. 1962). Although a city is atliberty to act: [A] slong as the state does not, in its Constitution or by general statute, cover any field ofthe activity ofthe cities ofthis state any given city is at liberty to act for itself. But when the state itself steps in and makes ageneral law and applies such law to all cities ofa certain class.

. . no city ofthe sane class is authorized.

. . to enact contrary legislation. %mm. ofBeaumont v. Fall, 291 S.W. 202, 205-06 (Tex. App. 1927).

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Since the Legislature has conferred upon the Parks and Wildlife Commission the authority to prescribe the “manner inwhich wildlife resources may be lawfully taken, ” since the Commission has imposed size andbag limits upon certain categories offish incertain geographical areas, and since the right ofthe 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 tofish caught inthe public waters under its control, size andbag limits which differ from those imposed by the Parks and Wildlife Commission pursuant to the Uniform Wildlife Regulatory Act.

In response toyour second question, we believe that a city is also prohibited from adopting an order which establishes aminimum age requirement for the privilege offishing. Article 4032b-1, V. T. C.S., requires a fishing license ofall persons atleast 17and under 65years ofage. No age restrictions are imposed therein onthe privilege offishing. Furthermore, article 4032~ grants to:

All residents ofthis State who are 65 years ofage or over and all persons who are under 16years of age shall be entitled to all hunting and fishing privileges for which a commercial license is not required, without obtaining alicense for such non-commercial privileges andwithout payment ofany fee. Itis thus apparent that the imposition ofa minimum age requirement would contravene the clear intent ofarticle 4032~ to extend to persons under 16years ofage the privileges ofnon-commercial fishing. An order imposing such a requirement would notbe “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 andbag limits onfish which differ from those promulgated by the Parks andWildlife Commission pursuant to the Uniform Wildlife Regulatory Act, nor an order establishing aminimum age requirement below which an individual is prohibited from fishing.

Attorney General of Texas

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ROBERT HEATH, Chairman Opinion Committee jwb

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