May 12, 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 

and Committee 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 amends Article 

4053, Revised Civil Statutes of Texas, 1925, as amended, by 

adding a new Section 2A, which provides that no permits 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 

and Subsections (d) and (e) referred to in Senate Bill 462 are 

those subsections prohibiting the issuance of permits to dredge 

shell and mudshell in certain areas designated therein. You have 

requested our opinion on the validity of those portions of Senate 

Bill 462 and the 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 amend Article 4053 so as to prohibit the issuance of such 

permits in certain waters of the State, and the provisions which 

you Inquire about, if enacted, would revoke permits heretofore 

issued by the Parks and Wildlife Commission rather than merely 

prohibiting the Issuance of any permits from and after the effective date of Senate Bill 462. 

The State may either 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. 

A P. 19ob 

4, 

, error re . n.r.e. . Haden v. Dodgen, 158 Tex. 

308 S .W. 2d 838 (1958)) the Co&-d at page 842: 

I, 

. . .Power to sell mudshell Is conferred by 

statute on the Game and Fish Commission of Texas. 

Article 4052 provides that the Commission ‘shall 

have full charge and discretion 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 he f-it 

3 sell upon such ,terms 

may deem proper. 

There is no statutory-pr%islon governing or 

limiting the manner of sale. So far as the statutes 

are concerned the Commission may sell by contract, 

m’iiiifally binding on the State and the vendee, or 

by permit revocable and amendable at the will of 

the Commission. Its selection of the manner of making 

sales as well as its decision as to whether the manner 

it has followed constitutes a valid contract Is the 

selection and decision of the State; and however incorrect the latter decision may be, 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 and Wildlife 

Department may grant 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 may not 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. The bill 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 and amendable at the will of the State. 

You are therefore advised that the provisions of Senate Bill 462 

and provisions of the Committee Substitute for Senate Bill 462 

are constitutional’, 

S U M M A R Y 

Senate’ Bill 462 of the 60th Legislature and 

the Committee Substitute for Senate Bill 462 providing for cancellation of permits granted by the 

Parks and Wildlife Department pursuant to the provisions of Articles 4051, et seq., Vernon’s Civil 

Statutes, if enacted, are constitutional since 

their provisions do not 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: 

OPINION COMMITTEE 

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 

STAFF LEGAL ASSISTANT 

A. J. Carubbi, Jr. 

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