.

**JIM MATTOX** 

**Attorney** General

Suprsms OoutI BulldIng P. 0. Box 12548 At&In. TX. 78711-2548 51211752501 Telex Slcm7C1307 Tslscoplsr 51214759255

714 Jackson. Suite 700 Dallas. TX. 75202-4508 214i74228944

4624 Alberta Ave.. SW4 160 El Paso, TX. 79805-2793 SlY533.3484

“391 Texas. Suite 700 .ouston. TX. 77002.3111 71312295aa6

i95 Broadway, Sulle 312 Lubbock, TX. 79401.3479 0Wl47-5238

4309 N. Tenth. SuIta S McAllm. TX. ml-1685 512m2.4547

290 MaIn Plaza, SUIW 4w San Antonio. TX. 782052797 512/2254191

AnEqual Opportunity/ Afll”“atlve AcMon EmplOyOr 

# The Attorney General of Texas

March 5, 1985

Eonorable

Fred J. Agnich Chairman OpinionNo. JM-298 Committee

**on** Enviwnmeatal Affairs Re: Whether the state of Texas Texas Eouse of Relmesentatives must sell commercial fishing P. 0. Box 2910 licenses to a person residing Austin,Texas 711769 in a state **which** does not offer equivalent licenses to Texts residents
Dear Representattire Agnich:
You request an **Attorney** General's Opinion concerning sectioo 47.002 of the !?arksand Wildlife Code, which sets fees for a commercial fisherman'slicense. It establishesdifferent fees for Texae residents

and nonresidents.
Your letterprovidesthe folloving information: The state of Arkansasrestricts the sale of its commercial

fishing licensesto an area **in** the Red River **here** its south bank 1s the boundary line between **Arkaasas** aad Texas. In DO other area of the stnte are Texas residents alloved to fish commercially.On the otherhand, Texas allovs the sale of licenses to Arkansas residents to commerciallyfish ia any waters in our aFate. You ask two q,uestions:

1. 1,s the state of Texas required to sell reciprclcal

licenses to a state that restricts our Texas residents? 2. Could Texas put a similar restrictionon the sale of commercialliceaaee to the state of **Arkanecw?** Section 47.002 of the Parks and WildlifeCode provides **an** answer to your first qumition:

p. 1340EonorablcFred J. Agnich - P.tlp 2 (JM-298)

(a) No person may engage la business as a cossaercial

fishermn unless he has obtained a generalcommercial fisherman's

license. (b) The licenoe fee for a general commercial fisherman'slicense is $15. Fifty cents of the fee may be retaine~i by the issuing agent, except an employeeof the department. (c) The liceam fee for a nonresident general commercialfishermu's license is the amount that a Texas resident :ls charged in the state in which **the** nonresident1s residing for a similar license or $25, whichever amouat is the larger. The department shall publish a list of nonresident **fees** according to the fees of each state and way alter the fee amomts in the list before September 1 of each year for the remainderof that license year. Fifty cent,3 of the fee may be retainedby the issuing agent, except an employee of the department.
**A** "commercialfisherman"183 defined as "a person who catches fish. oysters,or other edible aquaticproductsfrom the water of this state for pay or for the purpose of sale. barter, or exchange." Parka and Wild. Code 547.001(l). Sectioa 47.002 provides for the sale of nonresident general commercialfisherman'sliceoaea for the fee described in subsection Cc). It does aot authorize the Parka aad Wildlife Department to refuse a commercial fishermen's

licenseto nonresidents for the reason that their state diacrimi~rates against Texans in the issuance of c-rcial fishinglicenses,
Your second question tsiaea an issue of federal constitutional law. Nonresidentsare protected by the Privileges and Immunities Clause,article IV, section :! of the United States Conatitutionr which guarantees "the Citixena #J:E each State shall be entitled to all Privilegesand Imnities of Citizens in the several States." In any state.aonreaidenta are to have the same privilegesand immunities as residents of that state. Baldwin v. Fish and Game CocmPissioa of Hontaaa,436 U.S. 371 (1978'); Haguev. CIO. 307 U.S. 496 (1939). This clausehas been interpreted'LO praveata state from imposingunreasonable burdens on citizens oE other states in their pursuit of common callingswithin the state. Baldwin v. Fish and Game Commissionof Montana,supra. Discrimination

between residentsand aonresidents is permissible where there is a substantial reason for the differenceof treatment.

p. 1341Ronorable Fred J. Agaich - **Pago** 3 (Jn-298)

United Buildingand Construction Trades Council of Camden County and Vicinityv. Mayor and Com;i:il of the City of Camden, 104 S.Ct. 1020 (1984). The substantial &son must. however, show "that noncitizena constitutea peculiar source of the evil at which the q tatute is aimed." Toomerv. Witaell, 334 U.S. 385 (1948). Retaliation against **another** state's discriminatorylegialatioa does aot provide the required justification.Austin v. Raw Eampahire. 420 U.S. 656, 668 (1975). Travis v. Yale uptown Manufacturing. Co., 252 U.S. 60. 82 (1920). Commercial

fishing

has been recognized as an occupation

protected by the Privilegesaad Ixmanitiea Clause. Toomer v. Witaell. supra. Cf. Baldwin v. Fish and **Game** Cosxaiaaioa of Montana, 436 U.S. 371 (1978) (recreational big-iame hunting in Montana is aot a right protected

by Privileges

**and** Immunities

Clause). In Toomerv. Uitsell, the United **States** Supreme Court declared unconstitutional a South Carolinastatute

which vir,:ually

excluded

nonreaidenta

from commercial shrimp fishingin South Ca:rolina waters. Toomerv. Witsell,supra, at 396-97. **For** each ahrimpb~,at owned by a nonresident. South Carolina requireda license fee one-hundred times that paid by residents. Id. **at** 389. The court found no reasonable relationshipbetween rhe state's alleged purpose of conservation and this discriminatory **statute.** There was no "reasonablerelationship between **the** danger represented

by non-citizens,

as a class,and **the** severediscrimination practiced

upon them." Id. et 399. Nor did a state'sinterestin its wildlife justify its unroaaonableinterference with a nonresident's right to pursue a livelihood in a state other than his own. Toomerv. Witsell. 334 U.S. 385 .(19'18)., See also Dobard v. State, 233 S.W.2d 435 (Tex. 1950).
We conclude,in anawcr to your second question.**that Texas**  **may** not discriminate

against**the** residents of other states in the sale of commercial

fishinglicenses

unless such discrimination is supported

by a "substantial

reason"as rtequired by the United StatesSupremeCourt. Retaliation

against

Arkanassfor apparentdiacriminatioa againstTexas residents

does **not** constitute the requisite

reason. SUMMARY Section 47.0(12

of **the** Parka and Wildlife Code provides for the sale of nonresident **general** commercialfisherman's licenses **for** the fees set out in subaec!::lon (c). The Privileges and ImmuaitieaClauoe, article IV. section 2 of **the** United States C~oaatitution prohibits Texas from discriminating

eSainat residents of other states in the sale of ct=rcial fishing licenses unless a substantial

roeaon supports the discrimination. Retaliation agafnat **another** atate~for apparent

p. 1342Ronorable**Fred** J. Agnich - I?age 4 (JM-298)

discrimination

a@nst Texas residents does not constitute

**the** requiredsubstantial reason.

JIM MATTOX Attorney

Generalof Texas
TOM GREEN First Assistant

AttorneyGeneral
DAVID R. RICHARDS Executive

Assistant

AttorneyGeneral RICX GILPIN Chairman,

OpinionCommittee Prepared

by Susan L. Garrhon & Jack Carter Assistant

Attorneys

General.
APPROVED: OPINIONCOMMITTEE Rick Gilpin.-Chairman Jon Bible Susan Garrison Tony Guillory Jim Moelliager Jennifer

Riggs Nancy Sutton

p. 1343