August 28, 1952

Hou. Robert Galloway OpinionNo. Q-1516 Diatrlot Attorney 84th JudlolalDistrict 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:

“Aresident of Hutahlnson County, Texas, hereinafter called owner, Is the bvoner of lands within this County. A few years a@,. the owner started sellinggravel off of his landsand, In the process of removing the gravel, excavated a deep pit, whereupon undergroqidvatere oommenoed to flow Into the pit and form a large body of water. When the sale of gravelhad been ooneluded, the owner h&d, within theboundaries of his own land, a body of water about thirty (30)
acres in area, which body of water is in no~wag connectedwith 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 subterraneanand, as a matter of fact, the ownerbanked 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 intohis lake, and noi? has the lake supplied and stockedwith about 400,000 rainbow trout. "Duringthe year 1951, the owner permitted fishing upon his premises and inhis lake, charging an admission fee and placing a limit of five trout for each admisslon.

"Thisyear, 1952, the owner has proposed to change the charge for fishing upon hi8 landbyHon. Robert Galloway, page 2 (Q-1516)

charging the fishermenby 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 fishby throwingback smaller catches and keeping the fivebiggest fish they could catch."

Based upon this fact situationyou aek whether the taking of fish from this private lake is subject to the laws of the State of Texas, partloularlyArticles 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.:

"Fromand after the expiration of the olosed season on rainbow trout as In Section 1 of thisAct 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~themonths of January, February,March,April and Ray of each year, vhich months shall constitutea closed
season on rainbow trout."
Article 933&b,Q.P.C.:

"It ishereby made unlawful for any person to take or have inhis 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 inhis
or her possessionmore th$n five rainbow trout during any one day.

Article 933$, V.P.C.:

"It Ishereby 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 shallbe 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 inhis or their pos~sesslon for sale, or to carry, transportor ship for the purpose of sale,barter or exchange, any fresh water crappie or bass within the State of Texas.
"Anyperson violatingany of the grovisions of this section shallbe deeyd guilty of a misdemeanor,and upon conviction shall be punishedby 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.:

"Sectlou1. It shallbe unlawful for any resident of this State to fish in any of the fresh waters of this State, outside of the county of his residenceand adjacent counties thereto,without firsthaving procured from the Game, Fish and Oyster Commission, or one (1) of itsbona fide employees, or a county clerk or an authorized agent, a resident flshing,llcense,the fee for which shallbe One Dollar and sixty-fivecents ($1.65). Of this amount, the offiaer issuingaame shall retain fifteen cents (15$)as his fee for collecting
SalIB. No fee or license of any kind shallbe required of a person for the right to fish in the county of his residenceand counties adjacent thereto except as provided in Sec. 3 of thisAct.

"Set(I 2o It shallbe 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 firsthaving procured from the Game, Fish and Oyster Commission,
or one of itsbona fide employees, or a county clerk or an authorixed agent, a non-resident fishing license, the fee for which shallbe Five Dollars and twenty-fivecents ($5.25). Of this amount, the issuing officer shall retain tventyfive cents (25#)as hla fee for collecting same. Provided that such non-residentmay fish in said waters under a five-day license, the fee for which shallbe One Dollar and sixty-fivecents ($1065),and which shallbe valid for only five.

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

(5) consecutivedays, includingday of Issuance, the date of vhlch shallbe 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 thisAct. iyoresident fishing license shallbe 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 shallhold a resident fishing licensewhen using artlficlalbait or lure. Provided further that all residents of this State over the age of seventeen (17)years shallhold a resident fishing licensewhen 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 interferewith 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

"InCorpus Juris, vol. 26, p. 624, citing many authorities and precedents, the following is stated: *Butthe legislaturecannot lnterfere with the fishing privileges of the ovners of private pondshaving no communication through which fish are accustomed to pass to other vaters. 1
"Apparentlythe game laws of this state
are so framed as to recognize the 1lmFtation

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

'Itshallbe unlawful for any person to citch any fish In the freshwaters of this State, with any seine or net other thanmlnnov seine, not exceeding twenty feet in length, or to drag any seine, except such specifiedminnov seine, or to set any net, in the fresh waters of this State during themonths of March and April, or to fishwith any artificialbait of any kind in the fresh waters of this State. . Hon. Robert Galloway, page 5 (v-1516)

during themonths~of Merch and April. Any person violating any of the provisions of thisArticle shallbe deemedguilty of a misdemeanor and shallbe 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.’
"Articles931 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, italiclsedabove, apparentlywould operate to. protect the appellant against a conviction in the present instance.Article,951 apparently legallses the catching of fish of all klnds in privatewaters. The appellant, having le@Uly caught the fish described in the evidence In privatevaters In which the statehad no Interest,oould not be guilty of an offenseby having the fish inhis possesalon. ”

case In an opinion on motion for rehearing in the same (45S.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 Itbe expressed that Itwas not the legislative intent to place restriction on the owners' control over fishing in privately owned ponds, as distinguished from freshwater streams and lakes
as defined in article 926 of the Penal Code."

.Therefore?in view of thebasis for the Court of
- . _. . _ CriminalAppeals' interpretationof tne f18n an6 ame laws of the State, we feel that Articles 933$a and 933 b, t Vernon's Penal Code, and sections 1, 2 and 3 ofArticle 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'sprice-per-poundsystem of charge is not necessarily In conflictwith 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 inhis private lake, and as seld above, the game and fish lawswhen construed together indicate the leglslatlve Intent to, exempt the ovner's control **over** fishing in private lakes or ponds which do not communicatewith public waters from the scope of these laws.

The taking from **a** privately owned artificial lake of rainbow troutwhich
were stocked in the lake from sources outside the State Is not subject to the provisions ofArticles 93&a., 93,3&b and 933&z, Vernon's Penal Code, or Sections 1, 2 and 3 ofArticle 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 lakebased on the number of pounds of fish caught Is not a purchase, sale, barter or exchange,within themeaning of Articles 933&c and 9338, Vernon's Penal Code, of the types of fish named therein.

APPROVED: Yours very truly,

Red McDaniel PRICEDANIEL State Affairs DFvls%on Attorney General

E. Jacobson Revl4wingAssistant
Chap$es D. Mathews Firrat;Assistant Milton Richardson Assistant