AUSTIN. TJICXAS 78711 

March 19, 1975 

The Honorable Clayton T. Garrison 

Executive Director 

Opinion No. H- 558 

Texas Parks & Wildlife Department 

John H. Reagan Bldg. 

Austin, Texas 78701 

Re: Factors to be considered 

by Parks and Wildlife Department in adopting regulations 

to protect wildlife. 

Dear Mr. Garrison: 

You have asked three questions concerning the duties of the 

Parks & Wildlife Commission. You first ask: 

Is it the duty of the Parks and Wildlife Commission to consider each of the following factors 

prior to the adoption of wildlife regulations in 

accord with the Uniform Wildlife Regulatory Act: 

(a) Studies of the supply, (b) Economic value, (c) 

Environment, (d) Breeding habits and, (e) factors 

affecting the increase or decrease of the wildlife 

species? 

Section 2 of the Unifqrm Wildlife Regulatory Act, article 978j-1, 

Penal ~Auxiliary Laws, pr.ovides in pertinent part: 

In order to better conserve an ample supply of the 

wildlife :resources in the counties to which this Act 

applies to the end that the most reasonable and 

equitable privileges may be enjoyed by the people 

of said counties and their posterity in their ownership 

and in the taking of such resources, it is deemed for 

the public welfare that this Legislature should provide 

a law adaptable to changing conditions and emergencies 

p. 2508 
The Honorable Clayton T. Garrison page 2 (H- 558) 

which threaten depletion or wa s t e of the wildlife resources in said counties. The Parks and 

Wildlife Commission &therefore granted the 

authority, power and duty’ to provide by proclamation, rule or regulation, from time to time, periods 

of time when it shall be lawful to take a portion of the 

wildlife resources in said counties or in any portion 

of any of said counties when its investigations and 

findings of fact disclose that there is an ample supply 

of such wildlife resources that a portion thereof may 

be taken which will not threaten depletion or waste 

of such supply. 

Under section 2 of the Act, the Commission has the duty to promulgate regulations providing for periods of time during which wildlife 

may be taken. However, the statute also contemplates that such “open 

season” times are to be declared when the investigations of theCommission disclose that the taking of wildlife at that particular time will not 

threaten depletion or waste of the supply of the wildlife resources. 

Section 4 of the Act discusses the investigations the Department 

must make prior to declaring an open season: 

It shall be the duty of the Parks and Wildlife 

Department to conduct, from time to time, or 

continuously, scientific research investigations and 

studies of the supply, economic value, environment, 

breeding habits and, so far as possible, the sex ratio 

of the different species of wildlife resources as well 

as the factors affecting their increase or decrease, 

particularly with reference to hunting, trapping, 

fishing, disease, infestation, predation, agricultural 

pressure, over-population, and any and all other 

factors that enter into a reduction or an increase in 

the supply of such wildlife resources of this state. 

Pursuant to and based upon such studies, said 

Commission shall enter its findings of fact with 

pm 2509 
The Honorable Clayton T. Garrison page 3 (H-558) 

respect thereto, and if, in the opinion of the 

Commission, an open season or period of time 

may be safely provided for any of the wildlife 

resources of said county, said Commission is 

authorized and directed from time to time to 

provide an open season or period of time when 

such wildlife resources may be taken. 

In our opinion, section 4 clearly requires the Department to 

consider each of the factors listed in your question to determine whether 

an open season may “safely be provided” for any wildlife resources. 

You next ask: 

Is it the duty of the Parks and Wildlife Department 

to consider each of the following factors prior to 

the issuance of a permit for the taking of marl, 

gravel, sand, shell or mudshell: 

a. Whether operation under the permit would 

damage or injuriously affect any oysters, oyster 

beds or fish inhabiting waters thereof or adjacent 

thereto. 

b. Whether such operation would damage or 

injuriously affect any island, reef, bar,channel, 

river, creek or bayou used for frequent or occasional navigation or injuriously affect any current 

that would affect navigation. 

c. The requirements of industry for such 

sedimentary materials and the relative value 

thereof to the State of Texas for commercial 

value? 

Article 4053, V. T. C. S., provides the procedure whereby the 

Parks and Wildlife Commission may issue permits to persons who seek 

p. 2510 
The Honorable Clayton T. Garrison page 4 (H-558) 

to purchase or remove marl, sand, gravel, shells or mudshell from 

waters within the Commission’s jurisdiction. Under section 1 of that 

article, such persons must first make a written application to the 

Commission for the permit. The section then states that: 

If the Parks and Wildlife Commission finds that 

the taking, carrying away or disturbing of the 

marl, gravel, sand, shells or mudshell in the 

designated territory would not damage or injuriously affect any oysters, oyster beds, fish 

inhabiting waters thereof or adjacent thereto or 

that such operation would not damage or injuriously 

affect any island, reef, bar, channel, river, creek 

or bayou used for frequent or occasional navigation, 

or change or otherwise injuriously affect any 

current that would affect navigation, it may issue a 

permit to such person after such applicant shall have 

compli.ed with all requirements prescribed by said 

Parks and Wildlife Commission. 

Although the language of the statute is disjunctive, it is our 

opinion that the statute should be construed to require the Commission 

to find prior to issuing a permit that the operati~ons under consideration 

do not injuriously affec,t a3 of the three mentioned areas: l)oysters, 

oyester beds, fish inhabiting water thereof or adjacent to the operation; 

2) any island, reef, bar channel, river, creek or bayou used for frequent 

or occasional navigation and 3) any current that would affect navigation. 

In reaching this conclusion we are guided by the rule of statutory 

construction that unless there is no alternative, a statute will not be 

interpreted so as to lead to an absurd result. McKinney v. Blankenship, 

282 S. W. 2d 691 (Tex. Sup. 1955). To construe the statute as requiring 

that the Commission find the operations under consideration will not 

injuriously affect only one of the three stated areas wouldlead to absurd 

results. For example, if a person wished to remove sand from an area 

in a manner which clearly was not injurious to any currents affecting 

navigation, he would be able to qualify for consideration by the Commission 

pe 2511 
. , 

The Honorable Clayton T. Garrison page 5 (H-558) 

for a permit even though the removal of the sand might injuriously affect 

several reefs and destroy oyster beds. We do not believe the legislature 

intended such a result. 

Our interpretation of the statute as conjunctive rather than disjunctive is further reinforced by Sutherland on Statutory Construction 

section 252 which states: 

The popular use of ‘or’ and ‘and’ is so loose and 

so frequently inaccurate that it has infected statutory 

enactments. While they are not treated as interchangeable, and should be followed when their 

accurate reading does not render the sense dubious, 

their strict meaning is more readily departed from 

than that of other words, and one read in place of 

the other in deference to the meaning of the context. 

~[cited with approval in Witherspoon v. Jernigan, 76 S. W. 445 (Tex. 

Sup. 1903) and Young v. Rudd, 226 S. W. 2d 469 (Tex. Civ. App. 

--Texarkana 1950, writ ref. n. r. e.)]. 

Thus, in our opinion, the Commission must not only consider 

the factors listed in part (a) and part (b) of your second question prior 

to issuing a permit under article 4053, but also the Commission may 

not consider issuing such a permit unless it finds that the operations 

satisfy the requirements listed in section 1 of that article. 

Once the Commission has found that the operations under consideration satisfy the requirements of section 1, the Commission is then 

in a discretionary position. The statute states that the Commission 

“may” issue a permit to the applicant. At this point in the permit procedure, the Commission should be guided by section 2 of article 4053, 

which provides: 

In determining whether or not such permit 

should be issued, the Parks and Wildlife Commissionshall take into consideration any injurious 

p. 2512 
. I 

The Honorable Clayton T. Garrison page 6 (H-558) 

effect which might occur to any oysters, oyster 

beds, fish inhabiting waters thereof or adjacent 

thereto, as well as the requirements of industry 

for such marl, sand, gravel, shells or mudshell 

and the relative value thereof to the State of Texas 

for commercial use. 

Thus, in answer to part (c) of your second question, the Commission must consider prior to the issuance of a permit the requirements of industry for the sedentary materials and the relative value 

thereof to the State of Texas for commercial use. 

Your final question is whether: 

In the exercise of its general authority over the 

various species of wild animals, birds and fish 

within this State, does the Parks and Wildlife 

Commission have the duty to consider both economic 

as well as environmental factors when establishing 

policy guidelines for the Department? 

The Parks and Wildlife Commission when establishing policy 

guidelines for the Department, should, like any other department, 

establish policies which comport with the specific statutes which give 

the Department its jurisdiction over wildlife resources. Absent your 

providing us with a particular set of guidelines promulgated pursuant 

to a particular statute, we are unable to answer your question. 

SUMMARY 

It is the duty of the Parks and Wildlife Commission 

to consider each of the factors listed in section 4 of 

the Uniform Wildlife Regulatory Act prior to the 

adoption of wildlife regulations. Under article 4053, 

the Commission must consider prior to issuing a 

permit for the taking of marl, gravel, sand, shell 

or mudshell, all of the factors cited in section 1 of 

pm 2513 
. . 

The Honorable Clayton T. Garrison page 7 (H-558) 

that article. If the requirements of section 1 are 

met, the Commission in deciding whether to issue 

a permit, must then consider the factors listed in 

section 2 of article 4053. The Commission, when 

establishing policy guidelines for the Parks and 

Wildlife Department, must establish policies which 

comport with the specific statutes which give the 

Department its jurisdiction over wildlife resources. 

APPROVED: 

Very truly yours, 

Attorney General of Texas 

Of 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2514