OSNEY GENEHAL 

OFTEXAS 

Honorable Weldon Cabaniss Opinion No. WW-384 

County Attorney 

Aransas County Re: Does Article 9785 Vernon's 

Rocknort. - I Texas Penal Code. reuea i the effect 

of Article'952-l-10, Vernon's 

\ Penal Code as to the waters 

of Copano Pay, Mission Ray 

and connecting waters 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 connecting waters 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 these waters; 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L-10 has not been repealed in this instance, whether the confiscatory provisions of Section 3thereof are mantiatory.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 aforementioned waters are tidal 

waters. 

Article 952 L-10, as amended, pertinently provides: 

,, 

* 0 * It shall be unlawful for any person 

to use a strike net, 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, strike net, gill net, trammel 

net or shrimp 

wat&s of this 

trawl in or on any of the tidal 

State where the use of said seine, 

strike net. gill net. trammel net. 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, strike net, g.ill net, trammel net, or 
I ” 

Honorable Weldon Cabaniss, Page 2 MI-3 84) 

shrimp trawl in or on any of.the tidal waters 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 this Act, 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 in which it was seized, where it shall be 

held as evidence until after the trial. If the 

defendant is found guilty of possessing or using 

such seine, strike net, gill net, trammel net, or 

shrimp trawl unlawfully, the Court shall enter an 

order directing the immediate de,struction,of 0 a ., 

[same] by the Sheriff or constable-of the county 

where the case was tried 

stable of the county sha 4 1 immediately destroy 

and the Sheriff or conD 0 0 [same] and make a sworn report to said 

County Judge or Justice of the Peace, showing how, 

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 tidal waters of this State 

without anyone in possession where its use is orehibited, it shall be seized by such officer without warrant and delivered to the County Judge or 

Justice of the peace in the county in which it was 

found. Said officer shall make affidavit that 

such seine, strike net, gill net, trammel net or 

shrimp trawl was found in or on the tidal waters 

of this State at a point where its use was crohibited, which said affidavit shall describe o . . 

Ee,? and the Court shall direct 'the Sheriff or 

any constable of the county to post a copy of said 

affidavit in the Courthouse of the county in which 

D e a [same] was seized, and said officer shall 

make his return to the Court showing when and where 

said notice was posted, Thirty (30) daysafter 

such notice is posted, the Court, either in term 

time or in vacation, shall enter an order directing 

the immediate destruction 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 Cour 1 

shall, under oath, 

showing how, when, 

and where 0 D o [same] was deitroyed. 

I' 00 0 " (Emphasis ours). 
. I, 

Honorable Weldon Cabaniss, page 3 W-384) 

House Bill No. 360, Acts 50th Legislature, 1947, Re Ular Session, Chapter 149, page 253, codified under Article 97 b .J, 

Vernon's Penal CQd6, was enacted at a later date, This Act provides: 

"Section 1. It shall be unlawful for any person, firm or corporation, or their agent or agents, 

to use a seine. strike net. shrimp trawl. sill net 

or trammel net in anv of the waters of Conano Bav, 

Mission Bav and connecting waters west of State 

Highwav No. 35 in Aransas County_, Refugio County and 

San Patricia County. . 0 0 

II 0 6 0 

"Sec. 3. All laws or parts of laws that conflict with this Act are hereby repealed, 

,t 0 . . It (Emphasis ours), 

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 specific provisions relating to the use of such 

apparatus in Copano and Mission Bays, the applicability of Article 

941 su ra 

Sect tE? 

to these waters 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 conflict with its 

provisions, A conflict between statutes is said to exist where one 

permits or licenses that which 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 

connecting waters, no section of that Act denounces the mere possession of such equipment in these waters, Thus, it appears that the 

Legislature did not intend for this Act to comprehend the entire 

subject matter relating to the prohibitions against equipment of 

this nature insofar as the aforementioned waters are concerned, but 

rather that the mandate of the Act should be 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 of 
Honorable Weldon Cabaniss, page 4 (W-384) 

seines, shrimp trawls or any of the enumerated types of nets in 

the waters described in the latter Act would constitute an offense 

punishable under Article 952 L-10. 

In view of our answer to your first question, we next 

consider whether the provisions of Section 3 of Article 952 L-10, 

sum&., are mandatory. I.n our OpiniOn, once an Officer is persuaded 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 affidav 1 t has been posted 

in the manner 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 to whom 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 State Highway No. 35 in Aransas, 

San Patricia and Refugio Counties, has not repealed 

Article 952 L-10, Vernon's Penal Code, prohibiting 

the possession of such equipment in these waters; 

and that when 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:wb 
Honorable 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