June 14, 1951. 

Hon. Ramle H. Griff’la 

Crlmlnal Dlstrlct Attorney 

Jefferson County 

Beaumont, Texas Oplnlon Ro. v-1191 

Dear Sir; 

Be; Legality of fishing with 

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., prohibiting the use o? certain 1arSe 

seines, net@, and other devices for catching fish Itor 

on Sablne Pass or the waters within one mile thereof, 

applies to the waters within one mile from’any polnt on 

the Sablne Jetty. Your question arises from the fact 

that applloatlon of Artlole 941 to the jetties at San 

Lulo Pass commonly known a8 Galveston Pass, has been 

question&, and, the oondltloas’there being similar to 

those at Sabine Pas8, you desire a clarliioatiod an to 

applioation of 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 situation at Sablne Pas80 

(2) Xi not, Is the prohlblted area under Artlole 441, V.P.C., to be measured from any point on 

Sablne ‘Jetty7 

Raoh question depends on certain faotual matter which has been furnlohed by you and by personnel o? 

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 catching fish d h 

other than the ordinary Dole and IEe?&% 

lng rod and reel, artlflklal bait, 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 possession any seine, 

net or trawl without a permit Issued 

Game, Plsh and Oyster Conrmlssloners 

misslog OP by his authorized deputy . . . 

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, connecting th 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 coastal waters Into another 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 

floating devioe, or to place any post, plllng, obstruction, wire, rope, cable, net 
Hon. Ramie I?. Griffin, Page 3, (V-1191) 

As to your first question, obviously the application of House Bill 952 to any situation depends 

on whether the Game, Fish and Oyster Commission has 

functioned or Is functioning In Improving the 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 question depends 

on the extent to which Sablne Jetty and the waters 

adjacent thereto constitute a part of Sablne Pass and 

the correct determination of the points from which to 

measure the prohibited area. 

As we understand the factual situation, the 

Sablne Jetty was formed by the erection of two parallel 

walls or breakwaters extending some three miles out lnto the Gulf from each side of the natural mouth 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 congregate in one or more spots on the outer 

side of the jetty where they become peculiarly vulnerable to netting and seining at the location of such 

"traps." 

If "Sablne Pass.," referred to In Artidle.941, 

does not Include the artlflclally extended channel, the 

jetty may be Ignored in determining the prohibited area. 

If It includes the extension, the question arises as to 

what area in addition to the new channel is included In 

the prohibition. 

These questions may be determined by 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 restricted area 

lylng'lmmedlately between the islands forming the strait 

entering Corpus Christ1 Ray. However, the Court said: 

"The evidence shows clearly that the 

water from and to the Gulf flows through 

a defined channel extending from the strait 

between the Islands to Corpus Christ1 Ray; 
420 

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

and It Is therefore as much a part of the 

pass leading from such coast water to the 

Gulf as the strait Itself. The construction of the word 'pass' insisted on by appellant would defeat the evident purpose 

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 

intercepted in or near the channel aforesaid th purpose would be defeated. In 

arrivlni at the sense of the Legislature 

In the use of the term 'all passes', the 

purpose It. had in view must be consulted." 

Similarly, the Court In the Gavlna case said: 

" the pass intended by the legislative'act'was certainly the entire length 

of the channel from the bay to the gulf. 

About this I think there can be no question. 

This question was recently passed on adversely to appellant's contention in the 

case gf Gibson v. Sterrett, 144 S.W. 1189 

. . . 

These cases clearly Indicate that the Leglslature Intended to protect the free passage of the fish In 

or'near the channel. It recognized the natural prbpensltles of the fish and endeavored to 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;;ld appear to be within the area Intended to be proSince the jetty Is designed to function as a 

part oi the pass, and since it appears to definitely lnfluence 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 prohibited by Article 941. 

SUMMARY 

R . S. tit;;" :;" f$';, . SE;;;ia:~;;il::k% ' * 

the water: of any natural'or artificial pass 
Hon. Ramle 33. Griffin, Page 5, (V-1191) 

maintained by the Game, Fish and Oyster 

Commission as a fish pass, and Is not, 

therefore, presently applicable to Sablne 

Pass or Sabine Jetty. Sy the provlslons 

of Article 941, V.P.C., it Is Illegal to 

seine with the equipment thereln 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. 

Reviewing Assistant 

Yours very truly, 

PRICE DARIRL 

Attoruey General 

Charles D. Mathews 

First Assistant 

VPT:jmc