October 6, 1989 

Mr. Charles D. Travis 

Executive Director 

Texas Parks and Wildlife 

Department 

4200 Smith School Road 

Austin, Texas 78744 

Dear Mr. Travis: 

Opinion No. JM-1106 

Re: Validity of a municipal 

ordinance prohibiting the 

towing or dragging of .nets 

near a bulkhead (RQ-1734) 

The Village of Tiki Island has adopted an ordinance 

prohibiting the towing or dragging of nets of any size 

behind boats in certain public waters that are within the 

corporate limits of the village. You state, "It has been 

suggested that this action by the Village of Tiki Island, 

Texas is contrary to Chapter 77 of 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 the waters that it designates as 

restricted are within the corporate limits,1 we believe 

that, on its face, this is a valid ordinance. 

You also state that the ordinance was adopted pursuant 

to section 31.092 of the Parks and Wildlife Code, which 

reads in part as follows: 

(a) The governing body of an incorporated 

city or town, with respect to public water 

within its corporate limits and all lakes 

owned by it, may designate by ordinance 

certain areas as bathing, fishing, swimming, 

or otherwise restricted areas and may make 

1. We make this assumption because, while part of the 

restricted area is identified as being 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. 5796 
Mr. Charles D. Travis - Page 2 (JM-1106) 

rules and regulations relating to the 

operation and equipment of boats 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 

filed with 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 

is reasonably "necessary to promote safety within such 

waters." of course, the reasonableness of an ordinance is a 

question of fact, which we cannot resolve in the process of 

issuing an opinion. S e. e.a,, John v. State, 577 S.W.Zd 

403 (Tex. Crim. App. 1z79); Citv f Cl e v._Lin 

- HousEon ';ist Dist.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 

- San Antonio 1930, writ dism'd). 

We find no 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). We believe 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 an ordinance, 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 of nets and the size of the 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 a boat having 

a commercial shrimp boat license issued under 

P. 5797 
Mr. Charles D. Travis - Page 3 (JM-1106) 

Parks & Wild. Code 0 77.041. 

this subchapter is equipped may be used B,D= 

le the u 

. . is otherwise nrohibited bv 

(z:hasis :zded.) 

law . 

Webster's New Collegiate Dictionary defines lqtrawl," 

when used as a noun, as "a large conical net dragged along 

the sea bottom in gathering fish or other marine 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 is otherwise 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, no whit) (legislature could have prohibited 

other burdens rather than other "like burdens"). 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, no writ). On the basis of the 

information furnished us, the particular ordinance * 

question is not in conflict with section 77.041 of the Parg 

and Wildlife Code. We do not reach any constitutional issue 

here. 

SUMMARY 

The Village 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 the village. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

Lou MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

P. 5798 
Mr. Charles D. Travis - Page 4 (JM-1106) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

Pa 5799