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Srptember 11, 1972 

Bon. Clayton T. Garrison 

Executive Director 

Opinion No. M- 1210 

Texas Parks & Wildlife Dept. Re: Public's right to fish 

John H. Reagan Bldg. in newly created waterAustin,, 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 that part of the Gulf of Mexico 

within the jurisdiction of this state 

are considered to be the property of 

the State of Texas. . . 

"The rapid growth of private developments adjacent 

to the Texas coast has raised a number of questions 

as to the Department's jurisdiction and responsibilities in these areas. One hazy area involves 

the dredging of canals from our bays into private 

property where summer homes 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 

deeper warm water offered by the canals and boat 

basins. Many of the private 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 harvested by seines or nets, and these actions 

would appear to circumvent the intent of the statutes. With these facts in mind, please consider 

the following questions. 

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Honorable Clayton T. Garrison, Page 2, (M-1210) 

Question No. 1 -- 

"Under the situation as stated above, should the 

fish in these canals be considered state property 

as defined by Article 4026, Texas Civil Statutes 

and under the jurisdiction of the Parks and Wildlife Department? 

Question No. 2 -- 

"Do the state fishing and water safety laws apply 

in the waters of these canals? 

Question No. 3 

"If you find that the fish in these canals are 

public property, would a member of the public be 

in violation of Article 1377b, Texas Penal Code 

(Trespass Law), by fishing or boating therein? 

The Legislature has declared by statute that the waters 

of every Texas flowing river or natural stream and of all lakes 

bays or arms of the Gulf of Mexico are the property of the 

State. Section 5.021(a), Texas Water Code. 

The Legislature, in enacting Article 4026, Vernon's Civil 

Statutes, has provided that all the fish and other aquatic 

animal life contained in the fresh water, 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, together with their beds and all the products thereof, shall continue and remain the.property of the State of Texas, and that, 

insofar as the use of such water and beds shall relate to the 

taking or conservation of~fish, oyster, etc., they shall be 

under the control of the Game, Fish and Oyster Commission, now 

represented by the Parks and Wildlife Department. (See Art. 

978f 3a, V.P.C.) Diversion Lake 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 the widest 

and handling of fish within 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); 36A C.J.S. 535, Fish, Sec. 26a. 

However, generally speaking, private waters are not subject 

to the regulatory powers of the state. The term "private" is 

not self-explanatory and the question of what are "private" and 

"public" waters for the purpose of application of 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 regulation merely because the 

soil underneath the water is privately owned or because it is 

surrounded by land privately owned. The main test appears to 

be whether the body of water involved is connected either continuously or at intervals with 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 connected with 

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 in waters within the state will 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 

continuously connected with the tidal waters on the Coast of 

Texas, so as to permit fish to move to and from these waters, 

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 therefore are 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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Honorable Clayton T. Garrison, Page 4, (M-1210) 

in that the act clearly authorizes the Parks and Wildlife Department to control water safety on all public waters within the 

territorial limits of the state. 

Your third question, whether a member of the public would 

be in violation of the trespass law of the state, Article 1377 

(b,), Texas Penal Code, by fishing and 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 navigable waters 

in Texas does not permit a trespass on the lands of another. 

Diversion.Lake Club 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~in waters thereon. Smith v. Godart, 

295 S.W.Zd 211 (Tex.Civ.App. 1927, no writ). The public has no 

right to enter on the private property of another for the purpose 

of catching fish, although the fish until caught may belong to 

the public and be subject to regulation by 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 is whether the owner of the fee in 

the soil not covered by public waters at the time of its original 

grant but which subsequently becomes submerged and subject to 

the ebb and flow of the tides making 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 the waters covering his land. 

In Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 

441 (193%. 47 A.L.R.2d 399 , the Suoreme Court held that the 

right of fishery follows ownership of the bed of streams, and 

since the stream there in question was 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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1. 

Honorable Clayton T. Garrison, Page 5, (M-1210) 

57 A.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 these newly created canals and waterways and the aquatic life contained therein originates 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 tide water 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 the public has access to these 

canals and waterways without trespassing on adjoining lands, 

it is our opinion that the public's right of fishing and boating extends to these newly created canals or navigable waterways and in exercising the right the public will commit no 

trespass. 

However, the provisions of Article 1377b, Texas Penal Code, 

are applicable regarding the privately owned banks. See the 

Diversion Lake case, p. 447. 

SUMMARY 

The water and fish in the newly created 

canals or waterways, created by dredging from 

state.bays into and over private property, are 

property of the State as defined by 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 safety provided for in Article 1722 

(a), Vernon's Penal Code, in that the act 

authorizes the Parks and Wildlife Department 

to control water safety on all public waters 

within the territorial limits of the state. 

Assuming that the public has access to 

these newly created canals and waterways 

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Honorable Clayton T. Garrison, Page 6, (M-1210) 

without trespassing on adjoining lands, 

the public right of fishing and boating 

extends to the newly created canals or 

navigable waterways and in exercising the 

right the public will no trespass. 

very tr/uly, 

Prepared by Guy C. Fisher 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Vince Taylor 

Houghton Brownlee 

Bill Campbell' 

Jay Floyd 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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