## THE~~TTORNEYGENERAL OFTEXAS

Arrs~mr. **~EKAS** 78711 April 5, 1977

The Honorable Ronald L.Wilson Opinion No. H-971 Criminal District Attorney 405County Courthouse Re: Constitutionality Galveston, Texas 77550 of sections 12.109 and 77.025, Parks andWildlife Code, relating to the confiscation of shrimp.

Dear Mr. Wilson:

You have requested our opinion regarding twoprovisions of the Parks andWildlife Code. Section 77.025 provides:

When an enforcement officer of the department believes that aperson has unlawful possession of any shrimp taken in violation of this chapter, all shrimp aboard anyvessel 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 inviolation 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 theperson charged with the illegal possession. Unless theperson is found guilty, all theproceeds 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," aswell as shrimp. You askwhether either of these statutes might deprive aperson of due process of law inviolation of the Fourteenth Amendment to the United States Constitution.

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

First, it isour opinion that the statute's standard of seizure by an enforcement officer when he "believes" that an individual has unlawful possession of shrimpwill be interpreted by the courts of this state as requiring~the constitutional standard ofprobable cause. See Carroll v. United S'tates.267U.S. 132 (1925). For exam=. a Parksynd Wildlife Department enforcement officer has reasonable or probable cause tobelieve that a Gulf operator isunlawfully inpossession ofmarine life ifhe has in fact observed him shrimping inclosed waters; therefore, there isno denial of due process when an individual isarrested 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 andWildlife Code isnotviolative of the due process clause of the Fourteenth Amendment to theUnited States Constitution. To begin with, the Submerged Lands Act of 1953, 43U.S.C. 5 1301 et. seq. (19701,declares that title to the natural resources within "navigable waters within the boundaries of the respective States" isvested in the respective States. Id. 9 1311(a). Furthermore, theAct defines natural re=rces to include shrimp. Sec. 1301(e). The recently enacted Texas Parks andWildlife Code specifically states that '[a]11the beds and bottons.and the products of the beds and bottoms

. . .of that partof the Gulf ofMEicwithinthe jurisdiction of this state are property of McCready v. also stat= this state." sec. 1.011(c). See generally

%=+2 94U.S. 391 (1876).Section 1.011 t at t eParks andWildlife Department "shall regulate the taking and conservation of

. . .shrimp..

. ." Sec. 1.011(d). Thus, title togame 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?8S.W. 16, 19 (Tex.Civ.App. -- SanAntonio 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 theLegislature balanced the necessity of conserving these natural resources for the benefit of all thepeople as against the inconvenience caused by confiscation of illegally taken shrimp held by some operators.

Inan earlier attack on similar shrimping regulations, a South Carolina statute "providing a closed season for catching

. . .shrimps" was upheld as avalid exercise of legislative power. Shipnan v 2 DuPre, 88F. Supp. 482, 488

p. 4044. .

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

(E.D. S.C. 1950), 339U.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 awide latitude of discretion in thematter of the amount of the penalty.

. . .This discretion is governed by the interests of thepublic, the normal opportunities for committing the offense and the amount necessary to secure aprompt 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 355U.S. 37(195. Themodern concert contemulatina state control is "founded upon thepower tb regulate in the state theprotection of. these resources 'fish1 for all thepeople." Kake v. Egan, 174 F. Supp. 500, 502-04 (D.Alaska 1959), aff'd 369U.S. 60 (1962). Accord Glenovich v 1291-93 (mska), affrd*Om; :?~7~~,~~~&,""" involved theprotection migrating salmon. ,the Legislature, inweighing thepublic interest inwildlife and the easewith which the shrimpmay be illegally taken, took necessary action to secure compliance with closed seasons andprovided proper penalties for suchviolations without denying due process toany 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 dueprocess 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, nowrit); 7 C.J.S., Attachment 9 319.
If adefendant is convicted under sections 77.025 or 12.109 of the Texas Parks andWildlife Code, the confiscation of the illegally obtained shrimp does notviolate due process because title remained in the state since the requirements for their legal taking were notmet. See Geer v.

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

Connecticut, supra. Aproblem nay develop, however, if the defendant hascomingled legally obtained shrimp with shrimp obtained inviolation of the Shrimp Conservation Act, Chapter 77,Texas Parks andWildlife Code. The statutes do not prohibit the court from awarding a convicted individual a portion of theproceeds representing his legal catch; however, it isour opinion that a convicted defendant isnot 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, hemust 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 thepublic interest requires that any individual convicted under these statutes bear theburden of proving up the amount of his lawful catch. However, adefendant 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 inyour brief that the confiscation of the shrimpmay 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 adefendant has taken shrimp legally: adecision that he has notworks no forfeiture but only locates title in the state, where ithas always been. When the defendant cannot prove what portion of commingled shrimp he took legally, there isagain no forfeiture, butmerely a failure toprove 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, adisposition of theproceeds of the confiscated shrimp by a justice of thepeace does not violate article 1906. In short, the Justice court decides whether thedefendant violated the law and thedisposal of the catch itself isprovided forby statute. It isour

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

. . oprnron, ,therefore,that neither section 77.025 nor section 12.109 'oftheParks andWildlife Code contravenes an individual's dueprocess rights; instead, section,s77.025 and 12.109 are avalid exercise of the State's police power in the conservation of shrimp for the~benefitof thepeople 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 avessel 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

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