### 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 byParks and Wildlife Department inadopting regulations to protect wildlife. Dear Mr. Garrison:

You have asked three questions concerning the duties ofthe Parks &Wildlife Commission. You first ask: Is it the duty ofthe Parks and Wildlife Commission to consider each ofthe following factors prior to the adoption ofwildlife regulations in accord with the Uniform Wildlife Regulatory Act: (a) Studies ofthe supply, (b) Economic value, (c) Environment, (d) Breeding habits and, (e)factors affecting the increase or decrease ofthe wildlife species? Section 2ofthe Unifqrm Wildlife Regulatory Act, article 978j-1, Penal ~Auxiliary Laws, pr.ovides inpertinent part: Inorder tobetter conserve an ample supply ofthe wildlife :resources in the counties towhich 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 intheir ownership and in the taking of such resources, it is deemed for the public welfare that this Legislature should provide alaw adaptable to changing conditions and emergencies

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

which threaten depletion or wa ste ofthe 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 oftime when it shall be lawful totake aportion ofthe wildlife resources in said counties or in any portion ofany of said counties when its investigations and findings offact disclose that there is an ample supply of such wildlife resources that aportion thereof may be taken which will not threaten depletion or waste of such supply. Under section 2ofthe Act, the Commission has the duty topromulgate regulations providing for periods oftime during which wildlife may be taken. However, the **statute** also contemplates that such “open season” times are to be declared when the investigations oftheCommission disclose that the taking ofwildlife at that particular time will not threaten depletion or waste ofthe supply ofthe wildlife resources.

Section 4ofthe Act discusses the investigations the Department must make prior to declaring an open season: Itshall be the duty ofthe Parks and Wildlife Department to conduct, from time totime, or continuously, scientific research investigations and studies ofthe supply, economic **value,** environment, breeding habits and, so far as possible, the sex ratio ofthe different species ofwildlife **resources** as well as the factors affecting their increase or decrease, particularly with reference tohunting, 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** ofthis state. Pursuant toand based upon such studies, said Commission shall enter its findings offact with

pm2509The Honorable Clayton T. Garrison page 3 (H-558)

respect thereto, and if, in the opinion ofthe Commission, an open season or period oftime may be safely provided for any ofthe wildlife **resources** of said county, said Commission is authorized and directed from time to time to provide an open season or period oftime when such wildlife resources may be taken. Inour opinion, section 4clearly requires the Department to consider each ofthe factors listed inyour question to determine whether an open season may “safely be provided” for any wildlife **resources.**

You next ask:

Is it the duty ofthe Parks and Wildlife Department to consider each ofthe following factors prior to the issuance ofapermit for the taking ofmarl, 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 ofindustry 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 topersons who seek

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

topurchase or remove marl, sand, gravel, shells or mudshell from waters within the Commission’s jurisdiction. Under section 1ofthat article, such persons must first make awritten application to the Commission for the permit. The section then states that: Ifthe Parks and Wildlife Commission finds that the taking, carrying away or disturbing ofthe 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 ofthe statute is disjunctive, it is our opinion that the statute should be construed to require the Commission tofind prior toissuing apermit that the operati~ons under consideration donot injuriously affec,t a3 ofthe three mentioned areas: l)oysters, oyester beds, fish inhabiting water thereof or adjacent tothe 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.

Inreaching 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 tolead 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 ofthe three stated areas wouldlead toabsurd results. For example, ifaperson wished to remove sand from an area ina manner which clearly was not injurious toany currents affecting navigation, he would be able toqualify for consideration by the Commission

pe 2511. ,

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

for apermit even though the removal ofthe sand might injuriously affect several reefs and destroy oyster beds. We do not believe the legislature intended such a result.

Our interpretation ofthe 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 inplace of the other in deference tothe meaning ofthe 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 inpart (a) and part (b) ofyour second question prior toissuing apermit under article 4053, but also the Commission may not consider issuing such apermit unless it finds that the operations satisfy the requirements listed in section 1ofthat article.

Once the Commission has found that the operations under consideration satisfy the requirements ofsection 1, the Commission is then inadiscretionary position. The statute states that the Commission “may” issue apermit to the applicant. At this point in the permit procedure, the Commission should be guided by section 2ofarticle 4053, which provides: Indetermining 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** toany oysters, oyster beds, fish inhabiting waters thereof or adjacent thereto, as well as the requirements ofindustry for such marl, sand, gravel, shells or mudshell and the relative value thereof tothe State ofTexas for commercial use. Thus, in answer topart (c) ofyour second question, the Commission must consider prior to the issuance ofapermit the requirements ofindustry for the sedentary materials and the relative value thereof to the State of Texas for commercial use.

Your final question is whether:

Inthe exercise ofits general authority over the various species ofwild 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 aparticular set ofguidelines promulgated pursuant to aparticular statute, we are unable to answer your question. SUMMARY Itis the duty ofthe Parks and Wildlife Commission to consider each ofthe factors listed in section 4of the Uniform Wildlife Regulatory Act prior to the adoption ofwildlife regulations. Under article 4053, the Commission must consider prior toissuing a permit for the taking ofmarl, gravel, sand, shell or mudshell, all ofthe factors cited in section 1of

pm2513. .

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

that article. Ifthe requirements of section 1are met, the Commission in deciding whether to issue apermit, must then consider the factors listed in section 2ofarticle 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 ofTexas 

# Of DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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