. 

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 

An Equal Opportunity/ 

Afll”“atlve AcMon EmplOyOr 

The Attorney General of Texas 

March 5, 1985 

Eonorable Fred J. Agnich 

Chairman 

Opinion No. 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 !?arks and Wildlife Code, which sets fees for a 

commercial fisherman's license. It establishes different fees for 

Texae residents and nonresidents. 

Your letter provides the folloving information: 

The state of Arkansas restricts the sale of its 

commercial fishing licenses to 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 other hand, Texas allovs the 

sale of licenses to Arkansas residents to commercially fish 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 restriction on 

the sale of commercial liceaaee to the state of 

Arkanecw? 

Section 47.002 of the Parks and Wildlife Code provides an answer 

to your first qumition: 

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

(a) No person may engage la business as a 

cossaercial fishermn unless he has obtained a 

general commercial fisherman's license. 

(b) The licenoe fee for a general commercial 

fisherman's license is $15. Fifty cents of the 

fee may be retaine~i by the issuing agent, except 

an employee of the department. 

(c) The liceam fee for a nonresident general 

commercial fishermu's license is the amount that 

a Texas resident :ls charged in the state in which 

the nonresident 1s 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 remainder of that license 

year. Fifty cent,3 of the fee may be retained by 

the issuing agent, except an employee of the 

department. 

A "commercial fisherman" 183 defined as "a person who catches fish. 

oysters, or other edible aquatic products from 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 

commercial fisherman's liceoaea for the fee described in subsection 

Cc). It does aot authorize the Parka aad Wildlife Department to 

refuse a commercial fishermen's license to nonresidents for the reason 

that their state diacrimi~rates against Texans in the issuance of 

c-rcial fishing licenses, 

Your second question tsiaea an issue of federal constitutional 

law. Nonresidents are 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 

Privileges and Imnities of Citizens in the several States." In any 

state. aonreaidenta are to have the same privileges and immunities as 

residents of that state. Baldwin v. Fish and Game CocmPissioa of 

Hontaaa, 436 U.S. 371 (1978'); Hague v. CIO. 307 U.S. 496 (1939). This 

clause has been interpreted 'LO praveat a state from imposing unreasonable burdens on citizens oE other states in their pursuit of common 

callings within the state. Baldwin v. Fish and Game Commission of 

Montana, supra. 

Discrimination between residents and aonresidents is permissible 

where there is a substantial reason for the difference of treatment. 

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

United Building and Construction Trades Council of Camden County and 

Vicinity v. Mayor and Com;i:il of the City of Camden, 104 S.Ct. 1020 

(1984). The substantial &son must. however, show "that noncitizena 

constitute a peculiar source of the evil at which the q tatute is 

aimed." Toomer v. Witaell, 334 U.S. 385 (1948). Retaliation against 

another state's discriminatory legialatioa 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 Privileges aad 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 Toomer v. Uitsell, 

the United States Supreme Court declared unconstitutional a South 

Carolina statute which vir,:ually excluded nonreaidenta from commercial 

shrimp fishing in South Ca:rolina waters. Toomer v. Witsell, supra, at 

396-97. For each ahrimpb~,at owned by a nonresident. South Carolina 

required a license fee one-hundred times that paid by residents. Id. 

at 389. The court found no reasonable relationship between rhe 

state's alleged purpose of conservation and this discriminatory 

statute. There was no "reasonable relationship between the danger 

represented by non-citizens, as a class, and the severe discrimination 

practiced upon them." Id. et 399. Nor did a state's interest in its 

wildlife justify its unroaaonable interference with a nonresident's 

right to pursue a livelihood in a state other than his own. Toomer v. 

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 fishing licenses unless such discrimination is supported by 

a "substantial reason" as rtequired by the United States Supreme Court. 

Retaliation against Arkanass for apparent diacriminatioa against Texas 

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 

commercial fisherman's licenses for the fees set 

out in subaec!::lon (c). The Privileges and 

Immuaitiea Clauoe, 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. 1342 
Ronorable Fred J. Agnich - I?age 4 (JM-298) 

discrimination a@nst Texas residents does not 

constitute the required substantial reason. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RICX GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrhon & 

Jack Carter 

Assistant Attorneys General. 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin.-Chairman 

Jon Bible 

Susan Garrison 

Tony Guillory 

Jim Moelliager 

Jennifer Riggs 

Nancy Sutton 

p. 1343