October 6, 1989

Mr. Charles D. Travis Executive Director Texas Parks andWildlife Department 4200 Smith School Road Austin, Texas 78744
DearMr. Travis: Opinion No. JM-1106
Re: Validity of amunicipal ordinance prohibiting the towing or dragging of .nets near abulkhead (RQ-1734)

TheVillage of Tiki Island has adopted an ordinance prohibiting the towing ordragging of nets of any size behind boats in certain public waters that arewithin the corporate limits of thevillage. You state, "Ithas been suggested that this action by the Village of Tiki Island, Texas iscontrary to Chapter 77of the Parks and Wildlife Code" and ask for our opinion on the validity of the ordinance. We assume that your concern focuses on section 77.041. Assuming that the ordinance was adopted in accordance with law and that thewaters that itdesignates as restricted are within the corporate limits,1 we believe that, on its face, this isavalid ordinance.
You also state that the ordinance was adopted pursuant to section 31.092

### of the Parks andWildlife Code, which reads inpart as follows:

(a) The governing body of an incorporated city or town, with respect topublic water within its corporate limits and all lakes owned by it, may designate by ordinance certain areas asbathing, fishing, swimming, or otherwise restricted areas andmay make

1. Wemake this assumption because, while part of the restricted area is identified asbeing within the corporate limits of the village, part is identified as "any area nearer than three hundred (300)feet from any bulkhead adjacent to any land within the corporate limits of the Village." Village of Tiki Island, Ordinance No. 4-89-l (1989).

P. 5796Mr. Charles D. Travis -Page 2 (JM-1106)

rules and regulations relating to the operation and equipment ofboats which it deems necessary for the public safety. The rules and regulations shall be consistent with this chapter.

. . . . (d) A copy of all rules and adopted under this section shall filedwith the department.
Parks &Wild. Code 5 31.092. regulations be summarily

The ordinance declares that the towing of nets "threatens the safety of recreational and other users of the waters within the corporate limits" and that the prohibition isreasonably "necessary to promote safety within such waters." of course, the reasonableness ofan ordinance is a question of fact,which we cannot resolve inthe process of issuing an opinion. S e. e.a,, John v. State, 577 S.W.Zd 403 (Tex.Crim. App. 1z79); Citv fCl ev._Lin

-HousEon ';istDist.yC%, 446 S.W.2d 377 (Tex.Civ. APPwrit); Citv of Cornus Christi v. Unitarian Church, 4:: S.W.2d 923 (Tex.Civ. App. -Corpus Christi 1968,writ ref'd n.r.e.); Sitterle 546 (Tex.Civ.Appy' Victoria Cold Storaae Co., 33 S.W.Zd

-SanAntonio 1930,writ dism'd).
We findno conflict between the ordinance and the other provisions of chapter 31. The chapter generally relates to water safety, La, identification and registration of motorboats (subchapter B), required safety equipment (subchapter C), prohibitions on dangerous boating activity (subchapter D), and enforcement and penalty provisions (subchapter E). Webelieve that the ordinance conforms, at least on its face, to section 31.092(a): finding it necessary for the public safety, the governing body of an incorporated town has enacted anordinance, with respect to public water within its corporate limits, designating certain areas as "otherwise restricted."
Nor do we believe that the ordinance conflicts with section 77.041. Chapter 77 generally regulates the possession, catching, weighing and sale of shrimp, including restrictions on the size ofnets and the size

### ofthe mesh. Section 77.041 provides general authorization to use equipment on licensed commercial shrimp boats, as follows:

All shrimp trawls and fishing gear, except fishnets or seines, with which aboat having a commercial shrimp boat license issued under

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Parks &Wild. Code 0 77.041.

this subchapter isequipped may be used B,D= le the u . .

isotherwise nrohibited bv (z:hasis :zded.) law.

Webster's New Collegiate Dictionary defines lqtrawl," when used as anoun, as "a large conical net dragged along the seabottom ingathering fish or othermarine life." While granting general authority to use trawls 

### or nets on licensed shrimp boats, the legislature chose to except use that is "otherwise prohibited by law." The legislature could have excepted use that isotherwise prohibited by "this chapter," "this title," or "this code." See Citv of Stamford v. Ballard 345 S.W.2d 596, 600 (Tex.Civ. App. - Eastland 1960, nowhit) (legislature could have prohibited other burdens rather than other "likeburdens"). By using the general term, *'law,"the legislature clearly intended to except use prohibited by any law, including a municipal ordinance enacted under the authority granted in section 31.092(a). &R Choice v. Citv of Dallas, 210 S.W. 753 (Tex. Civ.App. -Amarillo 1919, nowrit). On thebasis of the information furnished us, the particular ordinance * question isnot inconflict with section 77.041 of the Parg andWildlife Code. We do not reach any constitutional issue here.
SUMMARY

TheVillage of Tiki Island is authorized to enact an ordinance prohibiting the towing of nets in certain areas of public water within the corporate limits of thevillage.

JIM MATTOX Attorney General of Texas
MARY KELLER FirstAssistant Attorney General
LouMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

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RICK GILPIN Chairman, Opinion Committee Prepared by Karen C.Gladney Assistant Attorney General

Pa 5799