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Srptember11,1972

Bon. Clayton T. Garrison Executive Director OpinionNo. M- 1210
Texas Parks &Wildlife Dept. Re: Public's right to fish John H. Reagan Bldg. in newly createdwaterAustin,,

Texas 78701 ways along the Texas Coast, and related Dear Mr. Garrison: questions?
In your request for an opinion concerning the above matter, your letter states the following;

"Article 4026,Texas Civil Statutes reads: All aquatic animal life contained in public rivers',

lagoons,bayous, lakes, creeks,bays and inlets in this state and all thatpart of the Gulf of Mexico within the jurisdictionof this state are considered to be the property of the State of Texas.
. . "The rapid growth of private developmentsadjacent to the Texas coast has raised a number of questions as to the Department's jurisdictionand responsibilities in these areas. One hazy area involves the dredgingof canals from our bays into private propertywhere summerhomes are built on the improved elevated lots. These canals are affected by the ebb and flow of the tides once constructed. During severe cold spells trout and redfish seek deeperwarm water offered by the canals and boat basins. Many of theprivate developments join bays closed to seines and nets by state law. If the canals are not subject to game and fish regulations, large numbers of fish that are the property of the State of Texas and utilize these areas could be harvestedby seines or nets, and these actions would appear to circumvent the intent **of** the statutes. With these facts in mind, please consider the followingquestions.

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QuestionNo. 1

-- "Under the situationas stated above, should the fish in these canalsbe considered stateproperty as definedby Article 4026, Texas Civil Statutes and under the jurisdictionof the Parks and Wildlife Department? QuestionNo. 2

-- "Do the state fishingand water safety laws apply in thewaters of these canals? QuestionNo. 3 "Ifyou find that the fish in these canals are publicproperty,would a member of the public be in violationof Article 1377b,Texas Penal Code (TrespassLaw), by fishingor boating therein? The Legislaturehas declaredby statute that thewaters of every Texas flowing river or natural stream and of all lakes bays or arms of the Gulf of Mexico are theproperty of the State. Section 5.021(a),Texas Water Code. The Legislature, in enactingArticle 4026,Vernon's Civil Statutes,has provided that all the fish and other aquatic animal life contained in the freshwater, rivers, creeks, etc. of the State are the property of the people of the state: that all of the public rivers,bayous, lakes, etc. in the state, togetherwith their beds and all the products thereof, shall continue and remain the.propertyof the State of Texas, and that, insofar as the use of suchwater and beds shall relate to the taking or conservationof~fish, oyster, etc., they shall be under the control of the Game, Fish and Oyster Commission,now representedby the Parks and Wildlife Department. (SeeArt. 978f 3a,V.P.C.) DiversionLake Club v. Heath, 86 S.W.Zd 441 (Tex.Sup.1935). So long as not reduced to possession, the ownership of water and fish are held to be in trust for the people of the state. Dodgen v. Depuglio, 146 Tex. 538, 209 S.W. 2d 588 (1948);Goldsmith Powell v. State, 159 S.W.Zd 534 (Tex. CiV.App. 1942, error ref.); 36A C.J.S. 499, Fish, Sec. 2.

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Honorable Clayton T. Garrison,Page 3, (M-1210)

Therefore, the state has thewidest and handling of fishwithin its borders. powers over the taking Gulf Fisheries Co. v. Darrouset, 17 F.2d 374 (S.D.Tex. 1926), and the power of the state to regulate and control the taking of fish has been said to be absolute. Sterret v. Gibson, 168 S.W. 16 (Tex.Civ.App. 1914,no writ); Poon v. Miller, 234 S.W. 573 (Tex.Civ.App.1921, no writ); 36AC.J.S. 535, Fish, Sec. 26a. However, generally speaking,privatewaters are not subject to the regulatorypowers of the state. The term "private" is not self-explanatoryand the question of what are "private"and "public"waters for the purpose of applicationof the Fish and Game regulatory statutes may present questions for decision from time to time. The Courts generally recognize that a body of water is not private so as to be exempted from regulationmerely because the soil underneath thewater is privately owned or because it is surroundedby landprivately owned. The main test appears to be whether the body of water involved is connected either continuously or at intervalswith other bodies of water so as to permit the fish to move to and from the two places, or whether the body of water is entirely isolated. Thus, if connectedwith other waters at all times or at intervals, the courts have maintained in most cases that the public has an interest in the fish therein and therefore the state statutes regulating the time and manner of fishing inwaters within the statewill apply to those bodies of water. Article 4026,V.C.S.; Taylor Fishing Club v. Hammett, 88 S.W.Zd 127 (Tex.Civ.App.1935 error dism.); 15 A.L.R. d 154,Fish and Fisheries, S9 (1949).
In view of the fact situation stated in your letter, that once constructed,the newly created canals or waterways are effected by the ebb and flow of the tides, and that they are continuouslyconnectedwith the tidalwaters on the Coast of Texas, so as to permit fish to move to and from thesewaters, it is our opinion that the water and fish in these canals or waterways are property of the state as defined by Section 5.021 (a),Texas Water Code, and Article 4026, and thereforeare under the jurisdiction,regulation,and control of the Parks and Wildlife Department. Article 978f-3a,V.P.C. This authority also extends to the regulation of water safety provided for in Article 1722(a),Vernon's Penal Code,

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in that the act clearly authorizes the Parks and Wildlife Department to controlwater safety on all public waters within the territorial limitsof the state.
Your third question,whether a member of thepublic would be in violationof the trespass law of the state,Article 1377 (b,), Texas Penal Code, by fishingand boating therein,will now be considered.
As noted above, the public has the general right to fish in public streams and waters subject to regulations imposed by the state. 25 Tex.Jur. Zd 374, Fish and Fisheries, Sec. 1. However, the right of fishing in public or in navigablewaters in Texas doesnot permit a trespasson the lands of another. Diversion.LakeClub v. Heath, supra; Reed v. State, 175 S.W.2d m3 (Tex.Civ.App.1943, no writ). Furthermore, the Legislature is without power to confer on anyone the right to go on the lands of another to catch fish~inwaters thereon. Smith v. Godart, 295 S.W.Zd 211 (Tex.Civ.App.1927, no writ). The public has no right to enter on the privateproperty of another for thepurpose of catching fish, although the fish until caughtmay belong to the public and be subject to regulationby the state. Taylor Fishing Club v. Hammett, supra. We will assume from the fact situation in your letter that the public, in asserting a right to fish, has access to these canals or waterways without trespass on adjoining lands, and that the issue to be decided iswhether the owner of the fee in the soil not covered by public waters at the time of its original grant but which subsequentlybecomes submerged and subject to the ebb and flow of the tidesmaking it part of the navigable waters of the state, is entitled to the exclusive enjoyment of all the rights incident to ownership, including the exclusive right of fishing in thewaters coveringhis land.
In Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441 (193%. 47A.L.R.2d 399, the Suoreme Court held that the right of fishery followsownership of the bed of streams, and since the stream there in questionwas owned by the state, the public had the right of fishery therein. This case establishes the proposition that the public has the legal right to fish in public waters over private lands. The courts of a number of other states have reached similar holdings. See Annotation in

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57A.L.R.Zd 573, et seq. In our view, the law is now settled on this point, and the Court of Civil Appeals holding in Fisher V. Barber, 21 S.W.2d 569 (Tex.Civ.App.1329, no writ), to the extent thatit may conflict, is no longer the law. The water that fills thesenewly created canals andwaterways and the aquatic life contained thereinoriginates from the public waters of the bays, inlets, and arms, of the Gulf of Mexico, and the lands and bottoms underlying the bays and other areas along the Gulf of Mexico within the tidewater lands are property of the State of Texas. Article 4026; Butler v. Sadler, 399 S.W.2d 411 (Tex.Civ.App.1966, error ref., n.r.e.) Therefore, assuming that thepublic has access to these canals andwaterways without trespassingon adjoining lands, it is our opinion that thepublic's right of fishing and boating extends to these newly created canals or navigablewaterways and in exercising the right thepublic will commit no trespass. However, theprovisionsof Article 1377b, Texas Penal Code, are applicableregarding the privately owned banks. See the DiversionLake case,p. 447.
SUMMARY The water and fish in the newly created canals or waterways, createdby dredging from state.bays into and over privateproperty, are property of the State as definedby Section 5.021(a),Texas Water Code, and Article 4026, Vernon's Civil Statutes, and therefore are under the jurisdiction,regulation,and control of the Parks and Wildlife Department. Article 978f-3a,Vernon's Penal Code. This authority extends to the regulation of water safetyprovided for in Article 1722 (a),Vernon's Penal Code, in that the act authorizes the Parks and Wildlife Department to controlwater safetyon all publicwaters within the territorial limits of the state. Assuming that the public has access to thesenewly created canals andwaterways

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without trespassingon adjoining lands, the public right of fishing and boating extends to the newly created canals or navigablewaterways and in exercising the right thepublic will no trespass.
very tr/uly,

Prepared by Guy C. Fisher AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Vince Taylor Houghton Brownlee Bill Campbell' Jay Floyd
SAMUEL D. MCDANIEL Staff LegalAssistant
ALFRED WALKER ExecutiveAssistant
NOLA WHITE FirstAssistant

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