--, . 

E ENE 

WILL WILSON 

AlTORNEYGENERAL 

March 8, 1962 

Honorable Howard D. Dodgen Opinion No. WW-1275 

Executive Secretary 

Game and Fish Commission Re: Whether the Game & 

Austin, Texas Fish Commission has 

the authority to 

regulate the size of 

oysters to be taken 

from private oyster 

leases in Galveston 

and Chambers Counties 

Dear Mr. Dodgen: and related question. 

You have requested the opinion of the Attorney 

General by your letter of January 16, 1962, as to the 

following: 

Based on Article 4042, V.C.S., 1925; Article 968, 

V.P.C. 1925, Article 971, V.R.C., 1925, Acts 1957, 55th 

Leg. R.S. ch. 217, and other applicable statutes: 

1. Does the Game and Fish Commission have 

,authority to regulate the size of oysters 

to be taken from private oyster leases in 

Galveston and Chambers Counties? 

2. Does the Game and Fish Commission have 

authority to fix a size of less than three 

and one-half inches on oysters taken from 

public reefs in Galveston and Chambers 

Counties by proclaiming a smaller size 

limit for any and all public reefs in that 

area, or must such proclamation be issued 

separately for each distinct reef? 

The first 

Article 4042, V.C. 8 

ues;;i.; involves this langua e from 

l'...oysters taken ! 

deposited in the p&c waters of this state as iz:eoig 

provided shall become the personal property of the 

person or corporation so taking or depositing them." 

It is contended that this language operates so 

as to deprive the Game and Fish Commission of the power 

of control over oysters taken and deposited in accordance 
Hon. Howard D. Dodgen page 2 (W-1275) 

with Article 4042. The theory of this contention 

is that State power of regulation is based upon 

State ownerzhip of wildlife resources in the public 

waters, Article 4026, V.C.S., 1925. By the transfer of title in Article 4042, it is said that the 

State (Game and Fish Commission) has lost all 

if 

;oC;ftiregulation, Jones v:State, 45 SW2d 612, 

., 1932). Therefore, it is contended that 

the Game and Fish Commission has lost the power to 

enforce size limit regulations under Articles 971, 

V.P.C.'1925 and 4042, V.C.S. 1925. 

Such a contention is the equivalent of a 

statement that private property is not subject to 

regulation by the State, and this is true to a 

limited extent. The Jones case, sunra, held that 

the game and fish law'saT-exas did not apply to 

game fish in a tank on private lands, since the 

waters of such,a tank were not public waters and the 

fish therein were not at large to swim wherever 

their natural inclinations should dictate. 

The language quoted above does~ not expressly 

remove any statutory power given the Game and 

Fish Commission to regulate the oyster industry, It 

merely transfers title to the oysters from the,State 

to the oysterman. 

Under proper Constitutional and Legislative 

authority, the State has the power to regulate private property in the interest of conservation of 

natural resources, Constitution 1876, Article 16, 

Section 59, Marrs-v. Railroad Commission, 142 Tex. 

293, 177 SW2d 941, Brown v. Humble Oil and Refining 

L&., 126 Tex. 296, 83 SW2d 935. 

Has the Legislature exercised this power as 

to oysters placed in accordance with Article 4042 on 

$ 

rivate oyster leases in Galveston and Chambers 

ounties? 

The statutes governing the operation of the 

Texas oyster industry are numerous, and to preserve 

continuity in this opinion, they are set out in the 

Appendix at the end of this opinion. 
. ’ 

Hon. Howard D. Dodgen pa@;e 3 (m-1275) 

It will be noted that four classifications 

of oyster beds are contemplated by the statutes. These 

are: 

1,) F;l;c or natural oyster beds. Article 4027, 

. . ., 1925, 

2.) ;iEiau artificial oyster beds, Article 4028, 

. . ., 1925, 

3.) Artificial leased oyster beds, grown from seed, 

Articles 4035 through 4041, inclusive, V.C.S., -^^- 

4.) ~%.cial leased oyster beds used to prepare 

oysters for market, Article 4042, V.C.S., 1925. 

Oyster size limits are set forth in Articles.4042, 

V.C.S., 1925 and 971, V.P.C., 1925. In Article 4042, the 

application is to the taking of oysters from public beds for 

transplanting to one of the private categories. Article 971 

of the Penal Code is of general application, It will be 

noted that no part of Article 971 indicates any legislative 

intent to exempt any cate,ory of private lease from its 

operation. Unless there f s some other statute dealing with 

the question which would take private leases out from the 

operation of Article 97l,,we must hold that it governs private leases. 

It is necessary to construe statutes passed at 

the same Legislature together to ascertain the Legislative 

intent. 

All Acts of the Legislature are presumed valid 

and conflicts in the Statutes must be harmonized if at all 

possible. 

Article 961, V.P.C., 1925, indicates that it is a 

complete defense to a prosecution for,a violation of oyster 

conservation laws that the oysters in question were produced on a riparian artificial bed. Therefore we hold that 

the State has relinquished all right of control over 

oysters produced from riparian artificial beds. 

Article 968, V.P.C., 1925, is cited as indicating 

a Legislative intent that the State has similarly relinquished the right of control over the lease type private oyster beds. Article 968 denounces as a crime the 

shipping or receiving for shipment of oysters from public beds during the period from May 1st to September 1st of 

any year. It further says that such shipment is not a 

crime when the oysters are "taken from a private bed 

located under the laws of this State." 
Hon. Howsrd D. Dodgen page 4 (w-1275) 

It IS apparent from this language that no violation of the harvest season law (Article 966 V.P.C., 

1925, closed from April 1st to September 1st) is contemplated by the Legislature in the case of private 

oyster beds. We think,however, that any release of 

State authority pursuant to the shipment law is limited 

to seasonal criteria and does not affect the general 

supervision and control of the State, praticularly 

since Article 968 has reference to seasons and Article 

971 refers to sizes. 

We are aware of no other statute which makes 

inroads on the general authority to regulate oyster 

sizes conferred by Article 971. 

In connection with general authority.over 

oystering in Chambers and Gslveston Counties, it is 

necessary to take notice of Chapter 217, Acts of the 

55th Legislature, 1957. This law, set forth in the 

Appendix,sets up penal laws setting the season, equipment, hours and daily maximum harvest. The only requirement in Chapter 217 as to size is that the oysters 

be "of legal size.11 Ws take this to be a reference to 

Articles 971 and l&.$2. We~expresa no opinion as to 

the effect of Chapter 217 on riparian artificial beds, 

but we note that it purports to ap ly generally to 

oysters in Galveston and Chambers E ounties, therefore 

it must apply to private non-riparian oyster locations. 

It is the opinion of the Attorney General that 

since Article 971, V.P.C., 1925, confers on the Game and 

Fish Commission power to regulate oyster sizes and there 

appears to be no statute which serves to deprive the 

Commission of such power as to private, non-riparian, 

leases, the Cqtiission has-authority to regulate the size 

of oysters taken from private, non-riparian, oyster 

leases in Galveston and Chambers Counties. 

As to the second question, the power to reduce 

sizes on any reef includes the power to reduce sizes 

on all reefs and a valid reduction may be accomplished 

in an omnibus proclamation without naming specific 

reefs. 
Hon. Howard D. Dodgen page 5 (w-1275) 

APPENDIX 

a) Revised Civil Statutes, 1925 

Article 402Z 

public. 

All oyster beds not designated private shall be 

All natural oyster beds and reefs of this State 

shall be public, A natural oyster bed shall be declared 

to exist when az many.as five barrels of oysters may 

be found therein within twenty-five hundred square feet 

of any position of said reef or bed; and any lauds covered 

by water containing less oysters than the above amount 

shall be subject to location at the discretion of the 

Commissioner, but this shall not apply to a reef or bed 

that has been exhausted within a period of eight years. 

Article 4028 

Whenever any creek, bayou, lake or cove shall be 

included within the metes and bounds of any original grant 

or location of laud iu this State, the lawful occupant of 

such grant or location shall have the exclusive right to 

use said creek, lake, bayou or cove for gathering, planting 

or sowing oysters. The Commissioner may require the owner 

of oysters claimed to be produced on such lands, when such 

oysters are offered for sale, to make affidavit that such 

oysters were produced on such lauds. If said creek, bayou, 

lake or cove is not so included, then the exclusive right 

of the riparian owner shall, whenever the width of such 

creek, bayou, lake or cove is two hundred yards or less, 

extend to the middle thereof, and wherever the width of 

such waters is more than two~huudred yards, extend one huudred yards from shore. The right of the riparian owner 

for planting oysters along any bay shore in this State 

shall extend one hundred yards into the bay from high 

water mark or where the land survey ceases. The riparian 

owner's right to any natural oyster bed located on such 

one-hundred-yard reservation shall not be exclusive. 

Article 4035 

Any person who is a citizen of the United States 

or any domestic corporation shall have the right of obtaining a location for planting oysters and making private 

oyster beds within the public waters of this State, by making 

written application to the Commissioner describing the 

location desired. 

such application. 

A fee of ,twenty dollars cash must accompany 
Hon. Howard D. Dodgen page 6 (w-1275) 

Article 4036 

When the application and fee provided for in the 

preceding article have been received by the Commissioner 

he shall examine thoroughly the location desired, as soon 

as practicable, with tongs, dredge or any other efficient 

means. If the same be not a natural oyster bed or reef; 

and exempt from location by any article of this chapter, 

he shall have the location surveyed by a competent surveyor. 

In making said location, said surveyor shall plant two 

iron stakes or pipes on the shore line nearest to the proposed location, one at each end of the proposed location, 

which said stakes or pipes shall not be less than two 

inches in diameter, and be set at least three feet in the 

ground. Said stakes or pipes shall be placed with reference 

to bearings of not less than three natural or permanent 

objects or landmarks. And the locator shall place and 

maintain under the direction of the Commissioner a buoy at 

each corner of his oyster claim farthest from the land. No 

person shall locate water or ground covered with water 

for planting oysters along any bay shore in this State, 

nearer than one hundred yards from the shore. 

Article 4037 

The Commissioner shall give the locator a certificate signed and sealed by the Commissioner. Such certificate 

shall show the date of application, date of survey, number, 

description of metes and bounds with reference to the 

points of the compass and natural and artificial objects by 

which said location can be found and verified. The locator 

shall, before such certificate is delivered to him, pay 

the Commissioner surveyor's fees and all other expenses 

connected with establishing such location. If such sums, as 

costs of the location and establishment of the claim, are 

less than twenty dollars paid to the Commissioner, the 

difference in amount shall be returned to such locator by 

the Commissioner. If such expenses amount to more than 

twenty dollars the deficit shall be paid to the Commissioner 

by the locator. 

At any time not exceeding sixty days after the date 

of such certificate of location, the locator must file the 

same with the county clerk of the county in which the location is situated, who shall record the same in a wellbound book kept for that purpose, and the original with a 

certificate of registration shall be returned to the owner 

or locator; the clerk shall receive for the recording of such 

certificate the same fee as for recording deeds; the original 

or certified copies of such certificate shall be admissable 

in evidence under the same rule governing the admission of 

deeds or certified copies thereof. 
Hon. Howard D. Dodgen page 7 (w-1275) 

Article 4038 

Any person who shall be granted a certificate of 

location as provided for in the preceding article shall be 

protected in his possession thereof against trespass 

thereon in like manner as freeholders are protected in 

their possession as long as he maintains all stakes and 

buoys in their original and correct position, and complies 

with all laws, rules and regulations governing the fish 

and oyster industries. 

Article 4039 

No person, firm or corporation shall ever own- lease 

or otherwise control more than one hundred acres of land 

covered by water, the same being oyster locations under this 

chapter, and within the public waters of this State; and 

any person, firm or corporation that now holds more than one 

hundred acres of oyster locations, shall not be permitted 

hereafter to acquire, lease or otherwise control more; provided that no corporation shall lease or control any such 

lands covered by water unless such corporation shall be duly 

incorporated under the laws of this State. 

Article 4040 

Any person, firm or corporation who has secured, or 

may hereafter secure a location fora private oyster bed in 

this State, shall keep the two iron stakes or pipes and buoys 

as provided for by law, in place, and shall preserve the marks 

so long as he is the lessee of said location, and this shall 

apply also to any person, firm or corporation acquiring any 

location by purchase or transfer of any nature, and said locator or the assignee of any locator shall have the right to 

fence said location or any part thereof; provided that said 

fence does not obstruct navigation through or into a regular 

channel or cut leading to other public waters. 

Article 4041 

The owner or locator of private oyster beds under the 

foregoing provisionsehall not be required to pay any rentals 

on such locations for a period of five years, or till such 

time as he shall begin to market or sell oysters from such 

location or bed. When such locator shall begin to sell or 

market oysters from such location, he shall pay the State one 

dollar and fifty cents per acre per annum and two cents a 

barrel on oyster sales. Failure to pay such rentals by the 

first day of March each year shall annul and be a forfeiture 

of his lease. And if oysters are not marketed or sold from 

such location within five years from the date of location, such 

location shall become void. 
Hon. Howard D. Dodgen page 8 (w-1275) 

Article 4042 

Any person who is a citizen of the State of Texas, 

or any corporation chartered by the State to engage Fn the 

culture of oysters or transact business in the purchase andsale of oysters and fish, and composed of American citizens, 

wishing to plant oysters on their own oyster locations or 

take oysters from oyster reefs and public waters of the State 

for the purpose of preparing them for market, shall make 

application to the Commissioner for permission to do the same. 

In such application the applicant shall set out distinctly 

the purpose for which he desires such oysters and also the 

number or amount that he desires to take from the beds and 

waters mentioned. The Commiaaioner may grant such permit or 

he may refuse to do 80. If he should grant such permit, he 

shall require the applicant to take the oysters he is authorized to take from beds or reefs designated by such Commissioner 

and name them in the permit, and it shall be unlawful for 

any person to take oysters of less size than three and onehalf inches from hinge to mouth from any such designated beds 

or reefs unless authorized to do so by the Commissioner; he 

shall mark off the exact area of such beds or reefs from 

which such oysters shall be taken; he shall designate the 

bottoms on which such oysters shall be deposited, if'they 

are taken to be prepared for market; he shall require the 

applicant to cull the oyatera on the gro.unds where they are to 

be located; he shall state what implements such as tongs 

and dredges shall be used in taking such oysters, and he shall 

make and enforce all other regulations he may think necessary 

to protect and conserve the oysters on such public reefs or 

beds. All oysters taken from or deposited in the public 

waters of this State as herein provided shall become the 

personal property of the person or corporation so taking or 

depositing them. Such~person or corporation shall, by buoys 

or stakes or by fences, clearly and distinctly mark the 

boundaries of the private bed planted, or the boundaries of 

the deposit of oysters made for preparation for market; and 

no prosecution of anyone shall be permitted for taking such 

oysters unless the boundaries of such beds and deposits are 

established and maintained, 

b) Penal Code, 1925 

Article 961 

When any creek, bayou, lake or cove shall be included within the metes and bounds of any original grant 

or location of land in this State, the lawful occupant of 
Hon. Howard D. Dodgen page 9 (W-1275) 

such grant or location shall have the exclusive wright to 

use said cr,eek, lake, bayou or cove for gathering, plantin 

er sowing oysters within the metes and bounds of the offic f al ' 

grant or patent. The C.ommissioner may require the owner of 

oysters produced in said waters when offered for sale, to 

make an affidavit that such oysters were so produaed. The 

failure of the person claiming that such oysters were produced on his ~private oyster bed or bottoms, to have and to 

show such affidavit to the Commissioner or one of his 

deputies, or to whoever he offers such oyeters for sale, 

shall be presumptive that such oysters were taken from a 

public bed, and on prosecution for the same it shall devo~lve.on the defendant to show that such Oysters were taken 

from his private bed, or bottom of oysters. 

Article 966 

Whoever shall take or cat&oysters from any public 

beds or reefs for sale or for market from the first day of 

April to the first day of S.eptember, shall be fined not less 

than ten nor more than two hundred dollars. Each day ia a 

separate offense. That part of'the Laguna Madre which is 

South and West of Baff.in s Bay is exempt from the operation of 

this article. 

Article 971 

Any person offering for sale, or who shall sell, any 

cargo of oysters which shall contain more than five per cent 

young oysters shall be fined not less than ten nor more than 

two hundred dollars. Any oyster that measures less than three 

and one-half inches from hinge to mouth shall be deemed a 

young oyster for the purpose of this chapter. The Commissioner 

is authorized to permit the taking of oysters of less size 

than three and one-half inches from any reef he may designate 

but it shall be unlawful to take any oysters from reefs other 

than those designated by such Commissioner, and any one taking 

such oysters smaller in measurement than three and one-half 

inches from hinge to mouth from other than such reefs as designated by such Commissioner shall be fined not less than 

twenty-five nor more than two hundred dollars. 

c) Session Laws 

Chapter 217, Acta 1957. 55th Legislature 

Section 1. It shall be unlawful to take or catch oysters 

from the public; waters of Chambers and Galveston Counties for 

the market from the first day of April to the first day of 

November. 
Hon. Howard D. Dodgen page 10 (w-1275) 

Section 2. In the public waters of Chambers and Galveston 

Counties no person shall operate or have in use from any 

one (1) boat more than one (1) oyster dredge which shall 

not exceed thirty-six (36) inches in width across the 

mouth and shall not have a capacity in excess of two bushels. 

Section 3. During the open season herein provided, it 

shall only be lawful to take or catch oysters from the public 

waters of Chambers and Galveston Counties from sunrise to sunset. 

Section 4. No person, firm or corporation shall~have on 

board any commercial fishing boat, barge, float, or other 

vessel while in the public waters of Chambers and Galveston 

Counties more than fifty (50) barrels of oysters which shall 

be culled oysters of legal size. If a boat is pulling or 

towing another boat or boats, then such towing and towed 

boats combined shall not have aboard more than fifty (50) 

barrels of oysters, culled and of equal size. As used herein, a barrel is equivalent to three (3) bushels. 

Section 5. Any person violating any of the provisions of this 

Act shall be fined not less than Twenty-five Dollars ($25) 

nor more than Five Hundred Dollars ($500). 

SUMMARY 

The Game and Fish Commission has no regulatory 

power over private cultivated oyster leases 

operated by the riparisn owner located within 

an original grant of land from the sovereign 

of Texas, other than that the Commission may 

require an affidavit at the time of sale that 

the oysters were produced from such a reef. 

2 

The Game and Fish Commission hasauthority to 

regulate the size of oysters taken from other 

private oyster leases in Galvestonad Chambers 

Counties. 

3 

The Game and Fish Commission may lower the 

size of oysters taken from public reefs in 
Hon. Howard D. Dodgen page 11 (w-1275) 

Galveston and Chambers Counties by a general 

proclamation or by a specific proclamation. 

JEL:bjh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

Gordon Zuber 

Virgil Pulliam 

Yours very truly, 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.