THE~~TTORNEYGENERAL 

OFTEXAS 

Arrs~mr. ~EKAS 78711 

April 5, 1977 

The Honorable Ronald L. Wilson Opinion No. H-971 

Criminal District Attorney 

405 County Courthouse Re: Constitutionality 

Galveston, Texas 77550 of sections 12.109 and 

77.025, Parks and Wildlife 

Code, relating to the 

confiscation of shrimp. 

Dear Mr. Wilson: 

You have requested our opinion regarding two provisions 

of the Parks and Wildlife Code. Section 77.025 provides: 

When an enforcement officer of the 

department believes that a person has 

unlawful possession of any shrimp taken in 

violation of this chapter, all shrimp 

aboard any vessel involved or in the trawl, 

whether in storage, on deck, and whether 

alive or dead, whole or headed, frozen or 

fresh, shall be deemed to have been taken 

in violation of the chapter and shall be 

confiscated by the arresting officer. The 

cargo of shrimp shall be sold to the highest 

of three bidders by the officer. The proceeds 

of the sale shall be deposited in the state 

treasury to the credit of suspense fund 

number 900, pending the outcome of the action 

taken against the person charged with the 

illegal possession. Unless the person is 

found guilty, all the proceeds shall be paid 

to the defendant. 

Section 12.109 is to the same effect, except that its application extends to "fish, oysters . . . or other marine life," 

as well as shrimp. You ask whether either of these statutes 

might deprive a person of due process of law in violation of 

the Fourteenth Amendment to the United States Constitution. 

p. 4043 
I . 

The Honorable Ronald L. Wilson - page 2 (H-971) 

First, it is our opinion that the statute's standard of 

seizure by an enforcement officer when he "believes" that an 

individual has unlawful possession of shrimp will be interpreted by the courts of this state as requiring~the constitutional standard of probable cause. See Carroll v. United 

S'tates. 267 U.S. 132 (1925). For exam=. a Parksynd 

Wildlife Department enforcement officer has reasonable or 

probable cause to believe that a Gulf operator is unlawfully 

in possession of marine life if he has in fact observed him 

shrimping in closed waters; therefore, there is no denial of 

due process when an individual is arrested and his shrimp is 

confiscated under these circumstances. Second, we believe 

that the sale of the confiscated shrimp pursuant to the 

statutory provisions in section 77.025 and 12.109 of the 

Parks and Wildlife Code is not violative of the due process 

clause of the Fourteenth Amendment to the United States 

Constitution. To begin with, the Submerged Lands Act of 

1953, 43 U.S.C. 5 1301 et. seq. (19701, declares that title 

to the natural resources within "navigable waters within the 

boundaries of the respective States" is vested in the respective States. Id. 9 1311(a). Furthermore, the Act 

defines natural re=rces to include shrimp. Sec. 1301(e). 

The recently enacted Texas Parks and Wildlife Code specifically states that ' [a]11 the beds and bottons.and the 

products of the beds and bottoms . . . of that partof the 

Gulf of MEicwithinthe jurisdiction of this state are 

property of 

McCready v. 

also stat= 

this state." sec. 1.011(c). See generally 

%=+2 

94 U.S. 391 (1876). Section 1.011 

t at t e Parks and Wildlife Department "shall 

regulate the taking and conservation of . . . shrimp.. . ." 

Sec. 1.011(d). Thus, title to game and fish or at least the 

reaulation of their takina remains in the state until all 

requirements for their legal taking have been met. See Geer 

v. Connecticut, 161.U.S. 519, 533 (1896); Sterrett vxibson, 

if?8 S.W. 16, 19 (Tex. Civ. App. -- San Antonio 1914,no 

writ); Attorney General Opinion WW-672 (1959). We are 

advised that the two statutes in question were enacted for 

the conservation and protection of shrimp as they migrate 

from nursery areas to the Gulf of Mexico, and we believe 

that the Legislature balanced the necessity of conserving 

these natural resources for the benefit of all the people 

as against the inconvenience caused by confiscation of 

illegally taken shrimp held by some operators. 

In an earlier attack on similar shrimping regulations, 

a South Carolina statute "providing a closed season for 

catching . . . shrimps" was upheld as a valid exercise of 

legislative power. Shipnan v 2 DuPre, 88 F. Supp. 482, 488 

p. 4044 
. . 

The Honorable Ronald L. Wilson - page 3 (H-971) 

(E. D. S.C. 1950), 339 U.S. 321 (1950), on remand 73 S.E.2d 

716 (S.C. 1952). On remand from the Sunreme Court for statutory interpretation, the South Carolina Supreme 

The State has a wide latitude of discretion in the matter of the amount of 

the penalty. . . . This discretion is 

governed by the interests of the public, the normal opportunities for committing the offense and the amount 

necessary to secure a prompt compliance 

with the statutory enactment. Shipman 

v. DuPre, 73 S.E.2d 716, 718 (S.C. 

T.552). 

Court held: 

In short, the regulation of coastal fisheries is "within the 

police power of the individual states." Corsa v. Tawes, 149 

F. Supp. 771, 777-78 (D. Md.), aff'd 355 U.S. 37(195. 

The modern concert contemulatina state control is "founded 

upon the power tb regulate in the state the protection of. 

these resources 'fish1 for all the people." Kake v. Egan, 

174 F. Supp. 500, 502-04 (D. Alaska 1959), aff'd 369 U.S. 60 

(1962). Accord Glenovich v 

1291-93 (mska), affrd*Om; :?~7~~,~~~&,""" 

involved the protection migrating salmon. , the 

Legislature, in weighing the public interest in wildlife and 

the ease with which the shrimp may be illegally taken, took 

necessary action to secure compliance with closed seasons 

and provided proper penalties for such violations without 

denying due process to any Gulf operators. 

If, for example, an individual is acquitted of the 

offense of illegal possession, "all the proceeds . . . 

[are] paid to the-defendant," and, in such event, no deprivation of due process occurs. xthzgthedefendzt is 

deurive~ofis catch, he receives its equivalent -- proceeds from the sale -land courts and legislatures have long 

recognized that perishable property nay be sold pending 

trial. See United Finance Corp. v. Woodruff, 112 S.W.2d 

219, 220(Tex. Civ. App. -- Galveston 1937, no writ); 7 

C.J.S., Attachment 9 319. 

If a defendant is convicted under sections 77.025 or 

12.109 of the Texas Parks and Wildlife Code, the confiscation of the illegally obtained shrimp does not violate due 

process because title remained in the state since the requirements for their legal taking were not met. See Geer v. 

P. 4045 
The Honorable Ronald L. Wilson - page 4 (H-971) 

Connecticut, supra. A problem nay develop, however, if the 

defendant hascomingled legally obtained shrimp with shrimp 

obtained in violation of the Shrimp Conservation Act, Chapter 77, Texas Parks and Wildlife Code. The statutes do not 

prohibit the court from awarding a convicted individual a 

portion of the proceeds representing his legal catch; however, it is our opinion that a convicted defendant is not 

denied due process even if the court refuses to do so since 

the defendant has 

the burden of pointing out his own goods, 

and, if this cannot be done, he must bear 

the loss that results from it. Holloway 

Seed Co. v. City National Bank, 47 S.W. 95, --- 

97 (Tex. 1898). 

Legislative discretion has reasonably determined that 

regulations and prohibitions for the taking of shrimp in 

closed season are necessary for the preservation of this 

natural resource of the state, and the public interest 

requires that any individual convicted under these statutes 

bear the burden of proving up the amount of his lawful 

catch. However, a defendant may file a claim under section 

e of article 18.17, Texas Code of Criminal Procedure, to 

obtain proceeds from the legally taken portion of the catch. 

Finally, you suggest in your brief that the confiscation of the shrimp may act as a forfeiture which would oust 

a Justice of the Peace court of jurisdiction in favor of a 

district court under article 1906, V.T.C.S. However, a 

defendant can forfeit only shrimp that he owns. See 25 

Tex. Jur.2d, Forfeitures 99 1, 20. The Justice court decides whether a defendant has taken shrimp legally: a decision that he has not works no forfeiture but only locates 

title in the state, where it has always been. When the 

defendant cannot prove what portion of commingled shrimp he 

took legally, there is again no forfeiture, but merely a 

failure to prove that he acquired title. The defendant nay 

recover the legally taken part of the catch through court 

order or petition under section 18.17 of the Code of Crininal Procedure. Thus, a disposition of the proceeds of the 

confiscated shrimp by a justice of the peace does not violate article 1906. In short, the Justice court decides 

whether the defendant violated the law and the disposal of 

the catch itself is provided for by statute. It is our 

P. 4046 
- . 

The Honorable Ronald L. Wilson - Page 5, (H-971) 

. . 

oprnron, ,therefore, that neither section 77.025 nor section 

12.109 'of the Parks and Wildlife Code contravenes an individual's due process rights; instead, section,s 77.025 and 

12.109 are a valid exercise of the State's police power in 

the conservation of shrimp for the ~benefit of the people of 

the State of Texas. 

SUMMARY 

Sections 77.025 and 12.109 of the Parks 

and Wildlife Code, which provide for the 

confiscation of all shrimp aboard a vessel 

upon which any shrimp have been unlawfully 

taken, does not deprive the owner of the 

shrimp of due,process of law. 

ery truly yours, 

Attorney General of Texas 

Opinion Committee 

km1 

p. 4047