--, .

E ENE

WILL WILSON AlTORNEYGENERAL March 8, 1962

HonorableHoward D. Dodgen Opinion No. WW-1275 ExecutiveSecretary Game and Fish Commission Re: Whether the Game & Austin, Texas Fish Commissionhas the authorityto 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 requestedthe opinion of the Attorney Generalby 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 applicablestatutes:

1. Does the Game and Fish Commission have ,authority

to regulate the size of oysters to be taken from private oyster leases in Galvestonand 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 Galvestonand Chambers Countiesby proclaiminga smaller size limit for any and all public reefs in that area, or must such proclamation be issued separatelyfor each distinct reef?
The first Article 4042, V.C.

8ues;;i.;

involvesthis langua e from l'...oysters

taken ! deposited in the p&c waters of this state as iz:eoig provided shall become the personalproperty of the person or corporationso taking or depositingthem."

It is contendedthat this language operates so as to deprive the Game and Fish Commissionof the power of control over oysters taken and deposited in accordanceHon. 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 ownerzhipof 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 contendedthat the Game and Fish Commission has lost the power to enforce size limit regulationsunder Articles 971, V.P.C.'1925and 4042, V.C.S. 1925.

Such a contentionis the equivalentof a statementthat private property is not subject to regulationby 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 inclinationsshould dictate.

The language quoted above does~ not expressly remove any statutory power given the Game and Fish Commissionto regulate the oyster industry, It merely transferstitle to the oysters from the,State to the oysterman.

Under proper Constitutional and Legislative authority,the State has the power to regulateprivate property in the interestof conservation of natural resources,Constitution1876, 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 Legislatureexercisedthis power as to oysters placed in accordance with Article 4042 on $ rivate oyster leases in Galvestonand Chambers ounties?
The statutesgoverningthe operationof the Texas oyster industryare numerous,and to preserve continuityin 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 artificialoyster beds, Article 4028,

. . ., 1925, 3.) Artificialleased 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 applicationis 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 indicatesany legislative intent to exempt any cate,oryof private lease from its operation. Unless there fs some other statute dealingwith the questionwhich would take private leases out from the operationof Article 97l,,wemust hold that it governsprivate leases.

It is necessaryto construe statutespassed at the same Legislaturetogether to ascertainthe Legislative intent.
All Acts of the Legislature are presumedvalid and conflicts in the Statutesmust be harmonized if at all possible.

Article 961, V.P.C., 1925, indicatesthat it is a completedefense to a prosecutionfor,a violationof oyster conservationlaws that the oysters in questionwere produced on a riparian artificialbed. Thereforewe hold that the State has relinquished all right of control over oystersproduced from riparian artificial beds. Article 968, V.P.C., 1925, is cited as indicating a Legislativeintent that the State has similarlyrelinquishedthe right of control over the lease type private oyster beds. Article 968 denouncesas a crime the shipping or receivingfor shipmentof 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 privatebed located under the laws of this State."Hon. Howsrd D. Dodgen page 4 (w-1275)

It IS apparent from this languagethat no violation of the harvest season law (Article966 V.P.C., 1925, closed from April 1st to September 1st) is contemplatedby the Legislaturein the case of private oyster beds. We think,however, that any release of State authoritypursuant to the shipment law is limited to seasonal criteriaand does not affect the general supervisionand control of the State, praticularly since Article 968 has referenceto seasons and Article 971 refers to sizes.

We are aware of no other statutewhich makes inroads on the general authorityto regulate oyster sizes conferredby Article 971.

In connection

with general authority.over oystering in Chambersand GslvestonCounties, it is necessaryto 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.11Ws take this to be a referenceto Articles 971 and l&.$2.We~expresano opinion as to the effect of Chapter 217 on riparian artificialbeds, but we note that it purportsto ap ly generallyto oysters in Galvestonand ChambersEounties,therefore it must apply to privatenon-riparianoyster locations.

It is the opinion of the Attorney General that since Article 971, V.P.C., 1925, confers on the Game and Fish Commissionpower to regulateoyster sizes and there appears to be no statutewhich serves to deprive the Commissionof 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 Galvestonand Chambers Counties.

As to the second question,the power to reduce sizes on any reef includesthe power to reduce sizes on all reefs and a valid reductionmay 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 designatedprivate 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 oystersmay be found thereinwithin twenty-five hundred square feet of any position of said reef or bed; and any lauds covered by water containingless oysters than the above amount shall be subject to location at the discretionof the Commissioner,

but this shall not apply to a reef or bed that has been exhaustedwithin a period of eight years. Article 4028

Whenever any creek, bayou, lake or cove shall be includedwithin the metes and bounds of any originalgrant or location of laud iu this State, the lawful occupantof such grant or location shall have the exclusiveright 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 affidavitthat such oysterswere produced on such lauds. If said creek,bayou, lake or cove is not so included,then the exclusiveright 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

reservationshall not be exclusive. Article 4035

Any person who is a citizen of the United States or any domestic corporationshall 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 applicationto the Commissioner describingthe locationdesired. such application. A fee of ,twenty dollars cash must accompanyHon. Howard D. Dodgen page 6 (w-1275)

Article 4036

When the applicationand fee provided for in the precedingarticlehave been receivedby the Commissioner he shall examine thoroughlythe locationdesired,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 locationby any article of this chapter, he shall have the location surveyedby a competentsurveyor. 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 directionof the Commissioner a buoy at each corner of his oyster claim farthest from the land. No person shall locate water or ground coveredwith water for planting oysters along any bay shore in this State, nearer than one hundred yards from the shore. Article 4037

The Commissionershall give the locator a certificate signed and sealed by the Commissioner. Such certificate shall show the date of application,date of survey,number, descriptionof metes and bounds with referenceto the points of the compassand natural and artificialobjectsby which said location can be found and verified. The locator shall, before such certificateis deliveredto him, pay the Commissionersurveyor'sfees and all other expenses connected

with establishingsuch location. If such sums, as costs of the locationand establishment of the claim, are less than twenty dollars paid to the Commissioner, the differencein amount shall be returned to such locatorby the Commissioner. If such expensesamount 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 certificateof location,the locatormust 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 originalwith a certificateof registrationshall be returned to the owner or locator; the clerk shall receive for the recordingof such certificatethe same fee as for recordingdeeds; the original or certifiedcopies of such certificateshall be admissable in evidenceunder the same rule governingthe admissionof deeds or certifiedcopies thereof.Hon. Howard D. Dodgen page 7 (w-1275)

Article 4038

Any person who shall be granted a certificateof location as provided for in the precedingarticle shall be protected in his possessionthereof against trespass thereon in like manner as freeholdersare protected in their possessionas long as he maintainsall stakes and buoys in their originaland correctposition,and complies with all laws, rules and regulationsgoverningthe fish and oyster industries. Article 4039

No person, firm or corporationshall ever own- lease or otherwise controlmore than one hundred acres of land coveredby water, the same being oyster locationsunder this chapter,and within the public waters of this State; and any person, firm or corporationthat now holds more than one hundred acres of oyster locations,shall not be permitted hereafterto acquire, lease or otherwisecontrolmore; provided that no corporationshall lease or control any such lands coveredby water unless such corporationshall 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 acquiringany locationby 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 obstructnavigationthrough or into a regular channel or cut leading to other public waters. Article 4041

The owner or locator of private oyster beds under the foregoingprovisionsehall not be required to pay any rentals on such locationsfor 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 rentalsby the first day of March each year shall annul and be a forfeiture of his lease. And if oystersare not marketed or sold from such locationwithin 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 corporationcharteredby the State to engage Fn the culture of oysters or transactbusiness in the purchaseandsale of oysters and fish, and composedof American citizens, wishing to plant oysters on their own oyster locationsor take oysters from oyster reefs and public waters of the State for the purpose of preparingthem for market, shall make applicationto the Commissionerfor permissionto do the same. In such applicationthe 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 applicantto take the oystershe is authorized to take from beds or reefs designatedby 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 designatedbeds or reefs unless authorizedto 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 designatethe bottoms on which such oysters shall be deposited,if'they are taken to be prepared for market; he shall require the applicantto cull the oyatera on the gro.unds where they are to be located;he shall state what implementssuch as tongs and dredges shall be used in taking such oysters, and he shall make and enforce all other regulationshe may think necessary to protect and conservethe 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 personalproperty of the person or corporationso taking or depositingthem. Such~personor corporationshall, by buoys or stakes or by fences, clearlyand distinctlymark the boundariesof the private bed planted, or the boundariesof the deposit of oystersmade for preparationfor market; and no prosecutionof anyone shall be permittedfor taking such oysters unless the boundariesof such beds and deposits are establishedand maintained,

b) Penal Code, 1925 Article 961

When any creek,bayou, lake or cove shall be includedwithin the metes and bounds of any originalgrant or location of land in this State, the lawful occupantofHon. Howard D. Dodgen page 9 (W-1275)

such grant or location shall have the exclusivewright to use said cr,eek,

lake, bayou or cove for gathering,plantin er sowing oysterswithin 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 affidavitthat such oysterswere so produaed. The failure of the person claiming that such oysterswere produced on his ~private oyster bed or bottoms, to have and to show such affidavitto the Commissioner or one of his deputies,or to whoeverhe offers such oyeters for sale, shall be presumptivethat such oysterswere taken from a publicbed, and on prosecutionfor 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 LagunaMadre 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 oysterswhich shall containmore 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 authorizedto 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 designatedby such Commissioner, and any one taking such oysters smaller in measurementthan three and one-half inches from hinge to mouth from other than such reefs as designatedby such Commissionershall be fined not less than twenty-fivenor 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 Chambersand GalvestonCounties 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 Chambersand Galveston Countiesno 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 Chambersand GalvestonCounties from sunrise to sunset. Section 4. No person, firm or corporationshall~haveon board any commercialfishing boat, barge, float, or other vessel while in the public waters of Chambersand Galveston Countiesmore than fifty (50)barrels of oysterswhich shall be culled oysters of legal size. If a boat is pulling or towing anotherboat 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 equivalentto three (3) bushels. Section 5. Any person violatingany of the provisionsof this Act shall be fined not less than Twenty-fiveDollars ($25) nor more than Five Hundred Dollars ($500).

SUMMARY

The Game and Fish Commission has no regulatory power over private cultivatedoyster leases operatedby the riparisn owner locatedwithin an originalgrant of land from the sovereign of Texas, other than that the Commission may require an affidavitat the time of sale that the oysterswere produced from such a reef.
2
The Game and Fish Commissionhasauthorityto 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 inHon. Howard D. Dodgen page 11 (w-1275)

Galvestonand ChambersCountiesby a general proclamationor by a specificproclamation.

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.