June 14, 1951.

Hon. Ramle H. Griff’la CrlmlnalDlstrlctAttorney Jefferson County Beaumont,Texas Oplnlon Ro. v-1191

Dear Sir; Be; Legality of fishingwith seines or nets wlthla dne mile of the jetty at Sablae Pass, Texas.
Your recent request for an opi~idn ask8 whether Article 941, V.P.C., prohibitingthe use o? certain 1arSe seines,net@, and other devices **for** catchingfish Itor on Sablne Pass or the waters within one mile thereof, applies to the waters within one mile from’anypolnt on the Sablne Jetty. Your question arises from the fact that applloatlonof Artlole 941 to the jettiesat San Lulo Pass commonlyknown a8 GalvestonPass, has been question&, and, the oondltloas’there being similar to those at Sabine Pas8, you desire a clarliioatiod an to applioationof the statutes.

Spe~lfloallg

you ask two questions,whloh are: (1) Does House Bill 952, Speolal Laws, 

### 46th Leg.,R.S. 1939, oh. 

### 84, p. 

### 839,modify Artlole 

### 941, V.P.C. * and govern the situationat Sablne Pas80 (2) Xi not, Is the prohlbltedarea under Artlole 

### 441,V.P.C., to be measured from any point on Sablne ‘Jetty7

Raoh questiondepends on certain faotualmatter which has been furnlohedby you and by personnelo? the (tame,

Fl8h and Oyster Coana~ssion, the oWreOtneE8 of which wB shall assume for purposes of this OplnlOn.

Artlole 941, V.P.C., provides:P

. .

Hon. Raw&e H. Griffin,Page 2, (V-1191)

“It shall be unlawful for, any person to place, aet. use or drag any seine, net or other device for catchingfish d h other than the ordinaryDole and IEe?&% lng rod and reel, artlflklalbait, trot line, set line, 0~ cast net or minnow aelne of not more **than** twenty feet la length for catching bait, or have in his possessionany seine, net or trawl without a permit Issued Game, Plsh and Oyster Conrmlssloners misslog OP by his authorizeddeputy

. . . within or on the waters of

. . . Sablne Pass, ;ggy from Sablne Lake to the Gulf of Mexan Luls Pass, leading from Galveston We& Say to the Gulf **of** Mexico:

. . . or in or on the w&&s within one mlie **of** the p&es herein mentioned,connectingth b d tidal waters of this State wltheth?&? of tdexloo or in qr on or within a mile of any other such pa&ses, or within the waters of any pass, stream or canal leading from one body of Texas bay or coastalwaters Into an**other** body of such waters; q . .” added throughout.

) (Emphasis

House ~111 952, Special Laws, 46th Leg., R.S. 1939, ch. 84, P. 839, provides:

“Section I. -It~shall-beunlawful for any person to use, operate, sail, anchor, tie, **or** moor to the bank any boat, sailboat, motorboat, skiff,barge, raft, or other floatingdevioe, or to place any post, plllng, obstruction,

wire, rope, cable, netHon. Ramie I?. Griffin,Page 

### 3, (V-1191)

As to your first question,obviously the applicationof House Bill 952 to any situationdepends on whether the Game, Fish and Oyster Commission has functionedor Is functioningIn Improvingthe pass concerned. You have advised that the Commission does not so function at Sablne Pass or Sablne Jetty. Such being true, Rouse Bill 952 has no application.

The anawer to your second questiondepends on the extent to which Sablne Jetty and the waters adjacent thereto constitutea part of Sablne Pass and the correctdeterminationof the points from which to measure the prohibitedarea.

As we understandthe factual situation,the Sablne Jetty was formed by the erection of two parallel walls or breakwatersextending some three miles out lnto the Gulf from each side of the naturalmouth of Sablne Pass. It, In effect, extends the pass the length of the jetty Into the Gulf.

We are further advised that fish tend to approach the pass for entrance therein from the sides of the jetty, and, upon meeting the obstruction,tend to turn and congregatein one or more spots on the outer side of the jetty where they become peculiarlyvulnerable to netting and seiningat the location of such "traps." If "SablnePass.," referred to In Artidle.941, does not Include the artlflclallyextended channel, the jetty may be Ignored in determiningthe prohibitedarea. If It includes the extension,the questionarises as to what area in addition to the new channel is included In the prohibition.

These questionsmay be determinedby reference to Gibson v. Sterrett, 144 S.W. 1189 (Tex. Clv. App.

d Gavlna v. State, 

### 65 Tex. Grim. 572, 

### 145 S.W. $$!i$g).? case It was urged that a

as used in Am 941, was a restrictedarea lylng'lmmedlately

between the islands forming the strait entering Corpus Christ1Ray. However, the Court said:

"The evidence shows clearly that the water from and to the Gulf **flows** through a defined channel extendingfrom the strait between the Islands to Corpus Christ1Ray;

### 420

Hon. Rsmle H. Griffin, Page 4, (V-1191)

and It Is thereforeas much a part of the pass leading from such coastwater to the Gulf as the strait Itself. The construction of the word 'pass' insistedon by appellantwould defeat the evidentpurpose of the statute. The purpose the Legislature had In view was to enable fish to have free access to and from the coast waters, and if they are allowed to be interceptedin or near the channelaforesaid th purposewould be defeated. In arrivlni at the sense of the Legislature In the use of the term 'allpasses', the purpose It.

had in view must be consulted." Similarly,the Court In the Gavlna case said:

" the pass intendedby the legislative'act'was

certainlythe entire length of the channel from the bay to the gulf. About this I think there can be no question. This questionwas recentlypassed on adversely to appellant'scontentionin the case gf Gibson v. Sterrett, 144 S.W. 

### 1189

. . . These cases clearly Indicatethat the Leglslature Intended to protect the free passage of the fish In or'near the channel. It recognizedthe naturalprbpensltles of the fish and endeavoredto protect theme at points at which they might be Intercepted when seeking entrance to the pass.

The natural approach to the pass Is apparently the concentration

point to which the fish go for entrance. ;icY;;ldappear to be within the area Intendedto be proSince the jetty Is designed to functionas a part oi the pass, and since it appears to definitelylnfluence the movement of the fish and to create conditions which gave rise to Article 941, we conclude that an area Ut+&-h 'UIP,

db Qt-

Snsg w+, **Qf** tJIp-

Qts QW%X 4c ti jetty Is within the area prohibitedby Article 941.
SUMMARY

R
. S. tit;;"

:;" f$';,

.

SE;;;ia:~;;il::k% '* the water: of any natural'orartificialpassHon. Ramle 33. Griffin,Page 

### 5, (V-1191)

maintainedby the Game, Fish and Oyster Commissionas a fish pass, and Is not, therefore,presentlyapplicableto Sablne Pass or Sabine Jetty. Sy the provlslons of Article 

### 941,V.P.C., it Is Illegal to seine with the equipmentthereln forbidden within one mile of any point on the original Sabine Pass or the Sablne Jetty.

APPROVED: Red McDaniel State Affairs Division
Jesse P. Luton, Jr. ReviewingAssistant Yours very truly, PRICE DARIRL AttorueyGeneral

CharlesD. Mathews First Assistant
VPT:jmc