### OSNEY GENEHAL
OFTEXAS

Honorable Weldon Cabaniss OpinionNo. 

### WW-384 CountyAttorney Aransas County Re: Does Article 

### 9785 Vernon's Rocknort. Texas Penal Code. reueai the effect

- I ofArticle'952-l-10,Vernon's \ Penal Code as to the waters of Copano Pay, Mission Ray and connectingwaters west of State Highway No. 

### 35 in AranDear Mr. Cabaniss: sas County.

You have requested the opinion of this office as to whether Article 

### 9783, Vernon's Penal Code, prohibiting the use of seines, shrimp trawls and various types of nets in the waters of Copano Bay Mission Ray and connectingwaters west of State Highway No. 

### 35 in Aransas County, has the effect of repealing Article 952 L-10, Vernon's Penal Code, defining the offense of possessing such equipment in thesewaters; and if Article 952 L-10 has not been repealed in this instance,whether the confiscatory provisions of Section 3thereof are mantiatory.

Subsequent to the receipt of your opinion request, you advised the undersigned that the aforementionedwaters are tidal waters.
Article 952 L-10, as amended, pertinently provides:

,, * 0 * It shall be unlawful for any person to use a strikenet, gill net, trammel net, or shrimp trawl, contrary to the provisions of Chapter 

### 119 Page 269, Acts of the Regular Session of the For&-first Legislature [Article

### 941,Vernonss Penal Code].

"Sec. 2. It shall be unlawful to have in possession any seine, strikenet, gill net, trammel net or shrimp wat&s of this trawl in or on any of the tidal

Statewhere theuse of said seine, strike net. gill net. trammelnet. or shrimp trawl is prohibited from being used in taking or catching fish and/or shrimp, o e o 

### "sec.3. When any officer of this State sees any seine, strikenet, g.ill net, trammel net, orI ”

HonorableWeldon Cabaniss, Page 2 

### MI-384)

shrimp trawl in or on any of.the tidalwaters of this State where the use of +,,+,. 'q [iS~mS.3.~.~k::.~~~~~bited from being used for the nur-cose of taking flsn and/or shrimp and has reason to believe and does believe that the same is being used or possessed in violation of the provisions of thisAct, it shall be his duty to arrest the party using or possessing 0

. D [same]and, without a warrant shall seize o 0 D [same]as evidence. It shall be the duty of such officer to deliver. D + [same] to the County Judge or Justice of the Peace of the county inwhich it was seized,where it shallbe held as evidenceuntil after the trial. If the defendant is found guilty of possessingor using such seine, strikenet, gill net, trammelnet, or shrimp trawl unlawfully, the Court shall enter an order directing the immediatede,struction,of 0 a ., [same]by the Sheriff or constable-of the county where the casewas tried stable of the county sha 1 immediatelydestroy 4 and the Sheriff or conD 0 0 [same]and make a sworn report to said County Judge or Justice of the Peace, showinghow, when and where 0

. m [same]was destroyed. When such device is found by an officer of this State in',or:.,on

any of the tidalwaters of this State without anyone in possessionwhere its use is orehibited, it shallbe seizedby such officerwithoutwarrant and delivered to the County Judge or Justice of the peace in the county in which itwas found. Said officer shallmake affidavit that such seine, strikenet, gill net, trammelnet or shrimp trawlwas found in or on the tidalwaters of this State at a pointwhere its use was crohibited,which said affidavit shalldescribe o
. . Ee,? and the Court shall direct 'theSheriff or any constable of the county to post a copy of said affidavit in the Courthouse of the county inwhich D e a [same] was seized, and said officer shall make his return to the Court showingwhen andwhere saidnotice was posted, Thirty (30)daysafter such notice is posted, the Court, either in term time or in vacation, shall enter an order directing the immediatedestruction of 0 0 0 [same]by the Sheriff‘ or any constable in the county, and said officer executing said order make his return to said Cour1 shall,under oath, showinghow, when, and where 0 D o [same]was deitroyed.

I' 0 0 0" (Emphasisours).. I,

Honorable Weldon Cabaniss,page 3 

### W-384)

House Bill No. 

### 360,Acts 50thLegislature, 1947, 

### Re Ular Session, Chapter 

### 149,page 253, codified under

### Article b 97 .J, Vernon's Penal CQd6,was enacted at a later date, ThisAct provides:
"Section 1. It shall be unlawful for any person, firm or corporation, or their agent or agents, to use a seine. strikenet. shrimp trawl. sill net or trammelnet in anv of thewaters of Conano Bav, Mission Bav and connectingwaters west of State Highwav No. 

### 35 inAransas County_, Refugio County and San Patricia County.

. 0 0
II 0 6 0

"Sec. 

### 3. All laws or parts of laws that conflict with thisAct are hereby repealed, ,t 0

. .It (Emphasisours),

The provisions of Article 941,Vernon"s Penal Code,were incorporated in the clause of Article 952 k-10 suura, relating to the unlawful use of shrimp trawls and certaS,n e ypes of nets; however,with the enactment of House Bi.:Ll. No, 

### 360, 50th Legislature, supra, containing specificprovisionsrelating to the use of such apparatus in Copano and Mission Bays, the applicability of Article 

### 941 su ra Sect tE? to thesewaters has ceased, 

### 39 Tex,Jur, 15'0?Statutes,

Section 3 of House Bill No, 

### 360, 50th Legislature, supra, purports to repeal all laws or parts of laws in conflictwith its provisions, A conflictbetween statutes is said to exist where one permits or licenses thatwhich another forbids and proh:fbits. See definitions of "conflict" in Words and Phrases,Vol,,

### 8A,page 

### 1310 Article 952 L-10, suwra, prohibits the possession of seines, shrimp trawls and a variety of nets in those tidal waters where the use of this equipment has been forbidden, Although House Bill No, 

### 360, 50th Legislature, supra) proh:i.bi.ts ti;e use of sei,nes,

shrimp trawls and various nets in Copano and Mission Bays and in certain of the connectingwaters, no section of thatAct denounces the mere possession of such equipment in these waters, Thus, it appears that the Legislaturedid not intend for thisAct to comprehend the entire subjectmatter relating to the prohibitionsagainst equipment of this nature insofar as the aforementionedwaters are concerned,but rather that the mandate of theAct shouldbe considered in pari materia with the non-conflicting provisions of the existing law on the subject. Ex parte Spann, 5% S.W.2d 510 (Tex,Crim,1932). In our opinion the provisions of Article 952 h-10 were not repealed by House Bill Noa 

### 360, 50th Legislature;moreover, the possession ofHonorable Weldon Cabaniss, page 4 

### (W-384)

seines, shrimp trawls or any of the enumerated types of nets in thewaters described in the latterAct would constitutean offense punishableunder Article 952 L-10.

In view of our answer toyour first question,we next considerwhether the provisions of Section 

### 3 ofArticle 952 L-10,
I.nour OpiniOn, once an Officer is persum&., are mandatory. suaded that any of the enumerated apparatus is being used or posessed in violation of the Article, he has no alternative but to seize the apparatus and deliver it to the appropriate judicial officer. Likewise, if the possessor of such equipment is found to be guilty of possessing or using it unlawfully or in the event the possessor is not discovered if an affidav1t has been posted in themanner and for the duration prescribed it is the duty the Court forthwith to order the immediate de&u&ion of the equipment and the officer towhom the order is directed shall teed to execute the Court's command. of

proSUMMARY

House Bill No. 

### 360, 50th Legislature, 

### 1947 Gif;.;le 

### 978

j,V.P.C.) prohibiting the use of

, shrimp trawls and enumerated types of nets in Copano and Mission Hays and in the connecting waters west of StateHighway No. 

### 35 in Aransas, San Patriciaand Refugio Counties,has not repealed Article 952 L-10, Vernon's Penal Code, prohibiting the possession of such equipment in thesewaters; and thatwhen operative, the provisions of Section 

### 3 of Article 952 L-10, Vernon's Penal Code, are mandatory.

Yours very truly,

WILL W$&i$ON A

DRT:wam:wbHonorable Weldon Cabaniss,page 5 

### wd-384)

APPROVED:

OPINION COMMITTEE

Geo. P. Blackburn, Chafrman J. C. Davis Jr. Wayland C; kivers,,Jr, C. K. Richards
P,EVIEWED

FOR THE ATTORNEY GENERAL

BY: W. V, Geppert