May12, 1967

Honorable Jack Chairman, Qame Texas Senate Austin, Texas Hightower

&Fish Committee Opinion No. M-72 Re: Validity of that portion of Senate Bill 462 of the 60th Legislature providing for cancellation of per-

.. _ _ __ Dear Senator Hightower: mlts to areage shell or mudshell in certain areas. Your request for an opinion reads as follows:

“Attached are copies of Senate Bill 462 andCommittee Substitute for Senate Bill 462, I would appreciate an opin?.on regarding the constitutionality of cancellation of permits which would result from passage of this bill.” Senate Bill 462 of the 60th Legislature amendsArticle 4053, Revised Civil Statutes of Texas, 1925, as amended, by adding a newSection 2A, which provides that nopermits to dredge shell or mudshell in certain areas shall be granted, ~Yfollows: Subsection contained in Committee Substitute for Senate Bill 462 reads

“(b) Every permit issued before the effective date of this section is hereby revoked to the extent that it grants any authority in conflict with the statutory conditions stated in Subsection (a) of this section.” Subsection (f) of Senate Bill 462 reads as follows:

“Every permit issued before the effective date of this section is hereby revoked to the extent that it grants any authority in conflict with the statutory conditions stated In Subsections (d) or (e) of this section.”

-330 -Senator Jack Hlghtower, page 2 (M-72)

Subsection (a) referred to in the Committee Substitute andSubsections (d) and (e) referred to in Senate Bill 462 are those subsections prohibiting the issuance of permits to dredge shell andmudshell in certain areas designated therein. Youhave requested our opinion onthe validity of those portions of Senate Bill 462 andthe Committee Substitute for Senate Bill 462 above quoted~. Article 4051, et seq., Vernon’s Civil Statutes, authorize the issuance of permits to dredge in waters of this State shell or mudshell under certain conditions prescribed by the Legislature. Senate Bill 462 of the 60th Legislature, if enacted, would amendArticle 4053 so as to prohibit the issuance of such permits in certain waters of the State, andthe provisions which you Inquire about, if enacted, would revoke permits heretofore issued by the Parks andWildlife Commission rather than merely prohibiting the Issuance of any permits from andafter the effective date of Senate Bill 462.

TheState mayeither grant or refuse the privilege of exploitation of the resources of Texas bays and other public waters. Texas Oyster Growers Association v. Odem,385 S.W.2d 899 (Tex.Civ. AP. 19ob 4, , error re
. n.r.e.
. Hadenv. Dodgen, 158Tex. 308 S.W.2d 838 (1958)) the Co&-d at page 842: I,

. . .Power to sell mudshell Is conferred by statute on the GameandFish Commission of Texas. Article 4052 provides that the Commission ‘shall have full charge anddiscretion over all matters pertaining to the sale’ of mudshell and other deposits. Art. 4058d provides that with appyoval of the Governor the Commission ma and conditions as hef-it 3 sell upon such,terms maydeemproper. There is no statutory-pr%islon governing or limiting the mannerof sale. Sofar as the statutes are concerned the Commission maysell by contract, m’iiiifally binding on the State andthe vendee, or by permit revocable andamendable at the will of the Commission. Its selection of the mannerof making sales as well as its decision as to whether the manner it has followed constitutes a valid contract Is the selection anddecision of the State; andhowever incorrect the latter decision maybe, a suit to test it by seeking enforcement of contract rights is necessarily a suit against the State which caanot be maintained without legislative permission. (Emphasis added.)

- 331-Senator Jack Hightower, page 3 (M-72)

In view of the foregoing, the Parks andWildlife Department maygrant the privilege of exploitation of the resources of the public waters in the State by permits revocable and amendable at the will of the Department. Thus a person granted a permit does not acquire any rights which maynot be revoked by the State.

Therefore, you are advised that under the provisions of Senate Bill 462 of the 60th Legislature and the Committee Substitute for Senate Bill 462, if enacted, the State is merely exercising its authority to refuse the privilege of exploitation of the resources of the public waters of the State. Thebill does not affect any contract for sale of property of the State by contract mutually binding on the State and a vendee, but only affects permits which are revocable andamendable at the will of the State. You are therefore advised that the provisions of Senate Bill 462 andprovisions of the Committee Substitute for Senate Bill 462 are constitutional’, SUMMARY

Senate’ Bill 462 of the 60th Legislature and the Committee Substitute for Senate Bill 462 providing for cancellation of permits granted by the Parks andWildlife Department pursuant to the provisions of Articles 4051, et seq., Vernon’s Civil Statutes, if enacted, are constitutional since their provisions donot apply to any contract of sale, but only affect permits revocable and amendable at the will of the State. Vefi truly yours,

Prepared by John Reeves Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman W.V. Geppert, Co-Chairman

-332-Senator Jack Hightower, page 4 (M-72)

Pat Bailey William J. Craig Neal Williams Houghton Eirownlee STAFFLEGAL

ASSISTANT A. J. Carubbi, Jr.

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