August 28, 1952 

Hou. Robert Galloway Opinion No. Q-1516 

Diatrlot Attorney 

84th Judlolal District Re: Applicability of various 

Borger, Texas laws regulating fishing 

to the taking of rainbow 

Dee Mr. Galloway: trout from a private lake. 

In your request for an opinion of this office 

you state the following faot situation: 

“A resident of Hutahlnson County, Texas, 

hereinafter called owner, Is the bvoner of lands 

within this County. A few years a@,. the owner 

started selling gravel off of his lands and, In 

the process of removing the gravel, excavated a 

deep pit, whereupon undergroqid vatere oommenoed 

to flow Into the pit and form a large body of 

water. When the sale of gravel had been ooneluded, the owner h&d, within the boundaries of 

his own land, a body of water about thirty (30) 

acres in area, which body of water is in no~wag 

connected with any uatural creek, river or stream, 

and is in no way subject to overflow from any 

creek, river, or natural strew. The water supply for the lake Is wholly subterranean and, as 

a matter of fact, the owner banked rain waters 

away from the lake. 

“Sometime ago the owner began experimenting 

with rainbow trout and found wat they live very 

well in his lake. Later he bought fish eggs from 

out of the State, hatched thk eggs himself at 

hatcheries erected upon his premises, turned them 

into his lake, and noi? has the lake supplied and 

stocked with about 400,000 rainbow trout. 

"During the year 1951, the owner permitted 

fishing upon his premises and in his lake, charging an admission fee and placing a limit of five 

trout for each admisslon. 

"This year, 1952, the owner has proposed to 

change the charge for fishing upon hi8 land by 
Hon. Robert Galloway, page 2 (Q-1516) 

charging the fishermen by the pound of fish 

caught and removed. His reason for changing 

the fishing privilege to the sale-by-pound 

method was that during the year 1951 fishermen killed numerous fish by throwing back 

smaller catches and keeping the five biggest 

fish they could catch." 

Based upon this fact situation you aek whether 

the taking of fish from this private lake is subject to 

the laws of the State of Texas, partloularly Articles 93&a, 

933&b, 933&z and 933a, Vernon's Penal Code, and Sections 

1, 2 and 3 of Article 4032b, Vernon's Civil Statutes. 

The articles in question are as follows: 

Article 933*a, Q.P.C.: 

"From and after the expiration of the 

olosed season on rainbow trout as 

In Section 1 of this Act Brt. 933 ~EEall 

be unlawful for any person to take, possess, 

sell or barter any rainbow trout from any of 

the fresh waters of Texas during~the months of 

January, February, March, April and Ray of each 

year, vhich months shall constitute a closed 

season on rainbow trout." 

Article 933&b, Q.P.C.: 

"It is hereby made unlawful for any 

person to take or have in his or her possession any rainbow trout from any of the 

fresh waters of Texas, of a less length than 

fourteen inches, or to take and have in his 

or her possession more th$n five rainbow 

trout during any one day. 

Article 933$, V.P.C.: 

"It Is hereby made unlawful for any 

person to sell, barter, or offer for sale 

or barter any rainbow trout ttken from any 

of the fresh waters of Texas. 

Artlale 933a, V.P.C.: 

"It shall be unlawful for any person, 

firm or corporation, or their agents, to 
. , 

Hon. Robert Galloway, page 3 (v-1516) 

buy or sell, or offer for sale, or offer to 

buy, or have in his or their pos~sesslon for 

sale, or to carry, transport or ship for the 

purpose of sale, barter or exchange, any 

fresh water crappie or bass within the State 

of Texas. 

"Any person violating any of the grovisions of this section shall be deeyd guilty 

of a misdemeanor, and upon conviction shall 

be punished by a fine in any sum not exceeding one hundred dollars, and each sale or 

shipment or act In violatioff hereof shall constitute a separate offense. 

Article 4032b, V.C.S.: 

"Sectlou 1. It shall be unlawful for any 

resident of this State to fish in any of the 

fresh waters of this State, outside of the 

county of his residence and adjacent counties 

thereto, without first having procured from 

the Game, Fish and Oyster Commission, or one 

(1) of its bona fide employees, or a county 

clerk or an authorized agent, a resident flshing,llcense, the fee for which shall be One 

Dollar and sixty-five cents ($1.65). Of this 

amount, the offiaer issuing aame shall retain 

fifteen cents (15$) as his fee for collecting 

SalIB. No fee or license of any kind shall be 

required of a person for the right to fish in 

the county of his residence and counties adjacent thereto except as provided in Sec. 3 of 

this Act. 

"Set (I 2 o It shall be unlawful for any 

person who is a non-resident of this State, or 

any person who is an alien, to fish in the fresh 

waters of this State without first having procured from the Game, Fish and Oyster Commission, 

or one of its bona fide employees, or a county 

clerk or an authorixed agent, a non-resident 

fishing license, the fee for which shall be Five 

Dollars and twenty-five cents ($5.25). Of this 

amount, the issuing officer shall retain tventyfive cents (25#) as hla fee for collecting same. 

Provided that such non-resident may fish in said 

waters under a five-day license, the fee for 

which shall be One Dollar and sixty-five cents 

($1065), and which shall be valid for only five 
. 

Hon. Robert Galloway, page 4 (V-1516) 

(5) consecutive days, including day of 

Issuance, the date of vhlch shall be 

stated thereon. The Issuing officer shall 

retain fifteen cents (15#) of said amount 

as, his collecting fee. 

"Set . 3. No person under seventeen 

(17) years of age shall be required to 

possess any of the licenses provided for 

In this Act. iyo resident fishing license 

shall be required of a resident citisen of 

this State who holds a commercial fishing 

license issued in this State. Provided 

that all residents of this State over the 

age of seventeen (17) years shall hold a 

resident fishing license when using artlficlal bait or lure. Provided further 

that all residents of this State over the 

age of seventeen (17) years shall hold a 

resident fishing license when using live 

bait outside of the county of his residence." 

In Jones v. State, 45 S.W.2d 612 (Tex. Grim. App. 

1931 .), It was determined that the game and fish laws of 

this State are not Intended to interfere with an owner's 

control over fishing In privately owned ponds of the cbaracter which ou describe. 

at page 61%: 

In respect thereto, the court said 

"In Corpus Juris, vol. 26, p. 624, citing 

many authorities and precedents, the following 

is stated: *But the legislature cannot lnterfere with the fishing privileges of the ovners 

of private ponds having no communication through 

which fish are accustomed to pass to other 

vaters. 1 

"Apparently the game laws of this state 

are so framed as to recognize the 1lmFtation 

E: 

mentioned. Article 951, P.C.1925, reads 

'It shall be unlawful for any person 

to citch any fish In the fresh waters of this 

State, with any seine or net other than mlnnov 

seine, not exceeding twenty feet in length, or 

to drag any seine, except such specified minnov 

seine, or to set any net, in the fresh waters 

of this State during the months of March and 

April, or to fish with any artificial bait of 

any kind in the fresh waters of this State 
. . 

Hon. Robert Galloway, page 5 (v-1516) 

during the months~ of Merch and April. Any 

person violating any of the provisions of 

this Article shall be deemed guilty of a 

misdemeanor and shall be upon convlctfon 

fined a sum of not less than &went ($20 .oo) 

dollar% nor more than one hundred, f $100.00) 

dollars. This article shall not amly to 

any artificial lake. oond or pool. owned bp: 

any nerson, firm, cornoratlon. city or town, 

that does not have as its source of water 

su~uly a river or creek or Is not subject 

to overflow from a river or creek.’ 

"Articles 931 and 933, upon which the 

prosecution Is founded, and article 951, just 

quoted, are all parts of the Game Law, and 

must be construed together. When so construed, 

the exception in article 951, italiclsed above, 

apparently would operate to. protect the appellant against a conviction in the present instance. Article, 951 apparently legallses the 

catching of fish of all klnds in private waters. 

The appellant, having le@Uly caught the fish 

described in the evidence In private vaters In 

which the state had no Interest, oould not be 

guilty of an offense by having the fish in his 

possesalon. ” 

case 

In an opinion on motion for rehearing in the same 

(45 S.W.2d 614) the court stated: 

"It seems to the writer that In no clearer 

language than that found in articles 925 and 951 

could It be expressed that It was not the legislative intent to place restriction on the owners' 

control over fishing in privately owned ponds, as 

distinguished from fresh water streams and lakes 

as defined in article 926 of the Penal Code." 

.Therefore? in view of the basis for the Court of - . _. . _ Criminal Appeals' interpretation of tne f18n an6 ame laws 

of the State, we feel that Articles 933$a and 933 t b, Vernon's 

Penal Code, and sections 1, 2 and 3 of Article 4032b, Vernon's 

Civil Statutes, do not apply to the taking of fish from the 

lake which you have described in your request, and speclflcallg that the owner's price-per-pound system of charge is 

not necessarily In conflict with Articles 333& and 9338, Qernon's Penal Code. This system of charge If applicable solely 

to the privilege of fishing is no more than a method by which 
. . 

Hon. Robert Galloway, page 6 (v-1516) 

the owuer~controls fishing in his private lake, and as 

seld above, the game and fish laws when construed together indicate the leglslatlve Intent to, exempt the 

ovner's control over fishing in private lakes or ponds 

which do not communicate with public waters from the 

scope of these laws. 

The taking from a privately owned 

artificial lake of rainbow trout which 

were stocked in the lake from sources 

outside the State Is not subject to the 

provisions of Articles 93&a., 93,3&b and 

933&z, Vernon's Penal Code, or Sections 

1, 2 and 3 of Article 4032b, Vernon18 

Civil Statutes, whare the lake does not 

have as its sour04 of water supply a 

river or creek and la not subject to 

overflov from a river or creek. A fee 

charged for the privilege of fishing in 

such lake based on the number of pounds 

of fish caught Is not a purchase, sale, 

barter or exchange, within the meaning of 

Articles 933&c and 9338, Vernon's Penal 

Code, of the types of fish named therein. 

APPROVED: Yours very truly, 

Red McDaniel PRICE DANIEL 

State Affairs DFvls%on Attorney General 

E. Jacobson 

Revl4wing Assistant 

Chap$es D. Mathews 

Firrat; Assistant 

Milton Richardson 

Assistant