THE ATITORNEY GENERAL 

OP %-EXAS 

Hon. J. R. Singleton 

Executive Director 

Texas Parks & Wildlife Dept. 

Austin,. Texas 

--1 / 

Opinion wb. M-8 r 

- 

Re: Authority of the Parks 

and Wildlife Department 

to regulate the taking 

Dear 

flee 

ment 

or disturbance of marl, 

sand shells and other 

materials within the waters of the State of 

Mr. Singleton: Texas. 

You have recently requested the opinion of this ofregarding the authority of the Parks + Wildlife Departto restrict disturbances in the bay and estuarine areas _ - __ . . lying along the coast of Texas. Your request reaas, In 

ab iollowe: 

part, 

“We desire the opinion of your office regarding 

the authority of the Parks and Wildlife Department to regulate the private development of 

State-owned water bottome. 

. . 

“The destruction of bay nursery areas used by 

fish and shellfish due to increased private 

channel dredging, dredge fill operations and 

spoil disposition are rendering useless these 

former productive sites in Texas estuarine 

areas. In addition, waterfowl feeding and 

resting grounds are being destroyed by these 

operatlone. 

"Artlclcs 4051, R.C.S. 

;,4052 R.C.S. 

and 4053, a8 

74, 36th Legislature, 

74, 36th Legislature, 

amended (Ch. 248, 

th Legislature, R.S. 1963) authorize the Parks 

and Wlldllfti Department to issue permlts.for the 

sale, the taking away and dleturblng of ~a11 marl, 

sand or gravel. ..c 

“Article 976, Texas Penal Code, provides a 

penalty for persons taking or carrying away 

any marl, sand, sRcll.s:.or~ mudatiall~.~?? gl?aVel 

under the Department's management, or disturbing 
Hon. J. R. Singleton, Page 2 (M-84) 

any of the marl, sand, shells or mudshell 

or gravel or oyster beds or fishing waters 

or operate in or upon any of the shell places, 

other than la necessary or lncldent to navlgatlon, or dredging under Federal or State 

authority without a permit from the Parks and 

Wildlife Department. 

“The Parks and Wildlife Department has only 

exercised its authority under these statutes 

to issue permits for the sale of sand, shell 

and gravel. 

“Article 5415-e, V.C.S., provides for procedures by which the School Land Board may lease 

State-owned aubmerged lands~to individuals. The 

Parks and Wildlife Department has representation 

on the Submerged Lands Advisory Committee. 

“In sununary of an Attorney General’s Opinion 

issued July 3, 1957, No. WW-150 the followin@ 

la quoted: 

‘A permit from the Game and Fish Commission to dredge shell on lands heretofore patented to the Nueces County 

Navigation District 1s not a prerequisite to the removal of shell commercially from said lands eo long a8 such 

removal 1s incidental to authorized 

navlgatlonal purposes.’ 

“We have interpreted this as applicable 

navigation districts in the State.‘. 

You then state: 

to other 

“In view of the above-referenced’statutes and 

the limitations we have placed on our authority 

by administrative interpretations and by agreement of a majority of the Parks and Wildlife 

Commissioners, it la deemed proper to request 

the Attorney Qeneral of ,the State of Texas for 

advice 04 these questions: 

“(1) Does the Parks. and Wildlife Department have authority to regulate or l@lt .dleturbances of fish producing areas ln natural 

bottoms of bay and Gulf areas when the sale of 

1 

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Ron. J. R. Singleton, Page 3 (M-a4) 

Band, shell or gravel la not involved, nor 

where petroleum development by the ffeneral 

Land Office la concerned? 

“(2) Does the Parka and Wildlife Department have authority to regulate or limit disturbancee,ln submerged land areas leased by 

the School Land Board to, lndlvlduals? 

“(3) Does the Parks and Wlldllfe Department have authority to limit the disturbances 

of submerged State-owned land leased by the 

General Land Office for 011 Development? 

“(4) What course of action la open to the 

Parks and Wildlife Department to control the 

u&z and disturbance of State-owned submerged 

landa?” 

By Act8 36th Leg., 2nd Called Session 1919, Chapter 

74, Page 215 (codified as Article 4051, V.C.S.), the Leglslature placed all sand of commercial value and all of the 

shells, mudshelle or gravel of whatsoever kind that may be 

in-or upon any Island, reef or bar, and In or upon the bottome OS any lake, bay, shallow water, rlvers, creeks and 

bayous and fish hatcheries and oyster beds within the terrltopy therein defined, under the contrjl, management and protection of the Game and Fish Commission. The territory 

defined included all the islands, reef8, bars, lakes and bays 

within tidewater limits from the most interior point seaward 

coextenalve with the jurisdiction of this State. 

By Acts 36th Leg., 2nd Called Session 1919, Chapter 

74, Page 215 (codified a8 Article 4052, V.C.S.), the Leglslatwe invested the Game and Flsh Commission with all power 

and authority necessary to carry into effect the provisions 

of the chapter and likewise gave it full charge and discretion 

over all matters pertaining to the sale, taklng,~ carrying away 

or disturbing of sand or gravel of commercial value, and all 

gravel, shells, mudshell and oyster beda. 

BY the aforementioned Act, Section 5 thereof (codified 

as Article 4053, V.C.S.), anyone desiring to purchase gravel, 

shells, or mudshell included in this chapter, or operate in 

or upon any island, reef, bar, lake, river, creek or bayou 

must apply for a permit to do so from the Game and Fish Cammission. 

It should first be noted that the protection of the 

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Hon. J. A.. Singleton, Page 4 (M-84) 

natural resources of State-owned submerged lands has been 

placed under the jurlsdlctlon of the Parks and Wlldllfe 

Dspartment. Title 67, Vernon’s Civil Statutes; Moreover, 

the tidal areas of Texas, to whicti jlour aplnlon request,10 

directed, -are placed under the “management, control and 

rotectlon” 

t 

of your department by virtue OS Articles 4051 and 

052, supra, with explicit leglslatlve injunction to protect 

the natural rcaourcea’thereln. 

However, there are conflicting interests involved ln 

the tidewater areas since these lands are valuable to the 

State of Texas, not only because they contain fish, shell and 

other marine resources, but they are valuable also for navlgatlonal purposes, for 011 and gas production, and for commerclal and industrial uses. 

For example, Article 4051, Vernon’s Civil Statutes, 

provides not only for the protection of marine life but 

empowers your department to sell commercially valuable marl, 

sand, gravel, shells and mudshells located in the tidal areas 

of the state if such sale will not endanger the breeding 

grounds of fish and shellfish. See Attorney Qeneral’s Opinions 

WW-1487 (1962) and C-90 (1963). Moreover, these statutes 

place the protection of marine life in your hands regardless 

of whether the sales of commercially valuable materials are. 

involved and give your department the right to control all 

disturbances in the tidal lands except where some use 1s made 

of these tidal lands as may be provided for by other statutes. 

Attorney General’s Opinion WW-151. 

In ,some areas, the value of the commercial and lndustrial use overrldea the protection of marlne life. As you 

note in your ~letter to us o a navigation district 1s authorized 

by the State to remove marl , shell, gravel and other materials 

and thereby disturb oyster beds and fish hatcheries wlthout 

the. pexmlsalon of your department, ii such removal and dleturbance 1s incidental to an authorized navlgatlovl purpose. 

Attorney Qeneral’a Oplnlon WW-150. 

The School Land Board, by virtue of the provisions of 

Article 5415-e, Vernon’s Civil Statutes, la authorized to lease 

the surface estate in State-owned islands and submerged lands 

for industrial purposea, including exploration and development 

of oil and gas under prior existing laws, subject to certain 

Umltatlons and conditions. This Article also provides for 

the School Land Board to make comprehensive studles.of submerged land management, and in a measure 1s supplemental to 

the power of the Parks and Wildlife Department to conserve 

and protect the natural resources of such lands. However8 

* 381 - 
Hon. J. R. Singleton, Page 5 (M-84) 

this Act, specifically provides that: 

II‘ It is expressly provided, however, 

that ii is-not intended that this Act shall 

repeal or modify the provisions of Chapter 3, 

Title 67, Revised Clvll Statutes of Texas, as 

amended, a8 it relates to the powers and duties 

of the Game and Fish Commission with respect 

to all matters pertaining to the sale, taking, 

carrying away, or disturbing of marl, sand or 

gravel of commercial value, and all gravel, 

shells, mudshell, and oyster beds and their 

protection from free use and unlawful dlsturblng or appropriation as provided in said Chapter 

3; nor 10 it intended that this Act should create or eatabllsh any additional or supplemental 

requlrementa or procedures to those set forth 

in the said Chapter 3, Title 67, insofar a8 the 

matters therein involved are concerned. . .” 

Where tidal lands are set aside for navigational purposes or are leased for 311 and gas production or other lndus- 

.’ trial purposes, the use of the glands by the navigation dlatrSct or by the lessee must be consistent with the purpose 

,: y for which such areas are set aalde or leased. If the dls- L turbancea of the State-owned water bottoms are not incidental 

to and necessary for the carrying out of navigation, or for 

the production of oil and gas, or for industrial purposes, 

then disturbances of oyster and fish producing areas would be 

within the authority of the Parka and Wildlife Department to 

control See the reasonfng of Attorney General’s Opinion WW150. It was stated ln Attorney General’s Opinion C-90, supra, 

that: 

“However, insofar as sand, gravel, marl, 

shell and mudahell might be removed and sold irom 

State owned tidal or submerged lands under lease 

for oil and gas without disturbing or interfering 

with the development of the:leased lands for 011 

and gas, the Game and Fish Commlsslon la authorized 

to issue permits for the sale thereof.” 

In view of the foregoing and the hplding and reasoning 

in the cited Attorney General’s Opinions, which we reaffirm, 

it la our opinion that your first three questions should be 

answered in the affirmative, subject to quallflcatlons. We 

will not answer these questions categorically, but will make 

one answer which will fully set out your authority in protecting and conserving the natural resources ln the bottom of the 

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.: 
Hon. J. R.. Singleton, Page 6 (M-84) 

submerged lslands and waters. 

The Parka and Wlldl1f.e Department has the authority 

and duty to manage, control and protect all the marl and sand 

of commercial value, and .a11 the shells, mud&hell, gravel, 

fish hritcherlea and oyster beds within the territory defined 

in Article 4051, Vernon’s Civil Statutes, as well as the additional powers and duties provided in Chapter 3 of Title 67, 

Vernon’s Civil Statutes, except the marl, sand, shells, mudshell, gravel, fish hatcheries and oyster beds that are dlsturbed for an authorized navigational purpose, and such dlsturbance la incidental to and reasonsbly necessary in carrying 

. 

out such navigation, or being dleturbed by a lessee of the 

School Land Board ln carrying out the purpose of the lease 

(whether for 011 or gas production or other commercial or lnduatrlal use) and which disturbance of the marl, etc. 1s lncldental to such purposes and reasonably necessary in carrying 

out such purposes. 

In answer to your fourth question (what courses of 

action are open to you to control the use and disturbance 

of submerged lands when you have authority to protect the 

marine life in such areas), you have the duty and prerogative 

of investigating disturbances and their affect on fish and 

shell fish breeding grounds. If the party responsible will 

not cease such disturbance, upon your request, you may then 

report the facts to the Attorney General who will decide if 

court action la warranted to limit the disturbance involved. 

In conjunction with this action, or as an alternative to it, 

you may wish to bring the actlvltlea caualng the disturbance 

to the attention of the proper county or district attorney if 

a criminal offense seems to be involved. 

SUMMARY 

/ 

, 

. . The Parks and Wildlife Department has 

the authority ‘.and duty to manage, control 

and proteot all the marl and sand of commercial value, and all the shells, mudshell, 

gravel, fish hatcheries and oyster beds 

within the territory defined in Article 4051, 

Vernon's Civil Statutes, as well as additional 

powers land duties provided in Chapter 3, of 

Title 67, Vernon’s Civil Statutes, except the 

marl, sand, shells, mud&hell, gravel, fish 

hatcheries and oyster beds that are disturbed 

for an authorized navigational purpose, and 

such disturbance la incidental to and reasonably necessary in carrying out such nqylgatlon, 

-*so ,; 

2 
.- . 

Hon. J. R. Singleton, Page 7 (M-84) 

or being disturbed by a lessee of the 

School Land Board ln~carrylng out the 

purpose OS the lease (whether for 011 

or gas production oc other commercial 

or.lndustrlal use) and which disturbance 

of the marl, etc. la incidental to such 

purposes and reasonably necessary In 

carrying out such purposes. 

Prepared by Lenny F. Zwlener 

Asalstant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phllllp~r, Chalman 

W. V. Oeppert, Co+d.rman 

Houghton Brownlee 

Kerns Taylor 

Malcolm Quick 

Nlel Williams 

STAFF LEOAL ASSISTANT 

A:J. Carubbl, Jr. 

i 

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