**. ”**  **-**

Honorable Sam Devall CountyAttorney,Lavaca County P. 0. **BOX** 273 Hallettsvllle,Texas OpinionNo. M-10
Re: Legality of taking fishusing only the Dear Mr. Dsvall: hands to do so.
You have requested our opinion as to whether Article 927, Vernon's Penal Code,prohibits the taking of Tishusing only the hands to do so.
You refer particularly to the practice of "under-bank" fishing for large catfish in the Lavaca and Ravidad Rivers and some of their tributary streams andpoint out that considerablenumbers of yellow catfish are taken fromunder the banks of these rivers and streamsusing onlg the handa for this purpose. Article 927 provides: "Exceptthe ordinaryhook and line or trot line, or a set or drag net or seine, themeshes of which shall be three ormore inches square, or a minnow seine not more than twenty feet long used for catchingbait, no person shallplace in any fresh water river, creek, lake,bayou,pool, lagoon or tank, in this State, any net, trap z ,otherdevice for catching fish, or take or catch any fish from saidwaters with any net, seine, device, or hook and line or trot line, other than as permitted herein. Whoeverviolates any provision of this article shall be fined not less than twenty-fivenor more than one hundred dollars." (Emphasisadded:)

- 30 -Honorable Sam Devall, Page 2 (M-10)

Only if human hands are a 'device"as the term is used in the statute is their use in taking fishprohibited. The doctrine of ejusdem generis is decisive of the question before us. This doctrine,which is a prime rule of statutory construction,imports that general words followingan enumeration of'oarticularor sneciflc thinsrs will be confined to'thinns of the-samekind and class as those enumerated. ~53Tex.Jur.sd 223: Statutes, Sec. 155: Farmers' EC Mechanics' Nat. Hank v. Hanks, 104 Tex. 320, 137 S.W. 1120 (1911);Stanford v. Hutler, 142 Tex. 692, 181 S.W.2d 269 (1944). Humanhands are not a "device" of the same kind and class as a net, trap or seine. While the Texas appellate courts have not construedArticle 927 In this respect, the Supreme Court of Michigan In In re Yell, 65 N.W. 97 (1895),in construinga similarMichigan statute, said:

"Section2 reads that it shall not be lawful for any person or persons to set, place or use any pound, trap, stake,gill, or set nets or seines, or any device of any kind, for taking fish in any of the tributaries of the Saginaw river. It is contended that the title gives no intimation of a purpose to entirelyprohibit fishing in the tributaries of the Saginaw. We need not considerwhether, if section 2 were to be construedas an entireprohibition of fishing, It would be within the title of the act, as it is our view that it was not intendedby this section to prohibit fishingwith hook 'andline. The term 'device'may be broad enough to coverhook and line, but when read in connectionwith the other words of the section 1:must be construed tomean a device of a like ki.. (Emphasisadded.) Since the Michigan Supreme Courthad little difficulty in holding a hook and line not to be a device of like kind with pounds, traps, stakes,gills, nets and seines, it seems clear that the Texas courts would have even less difficulty in holding human hands not to be a device of like kind with those devices the use of which Is prohibitedby the Texas statute.
In our opinion,Article 927 does not prohibit the taking of fish using only the hands to do so. This opinion is limited to the construction of Article 927, as we have not considered local and special laws, which govern fishing in specified

-31-Honorable Sam Devall,page 3 (M-10)

counties or areas, a8 none of these relate to Lavaca County.

SUMMARY Article 927, Vernon's Penal Code, does not prohibit the taking of fishusing only the hands to do so.

ney Genepal of Texas
NW:ms Preparedby Neil Willlams AssistantAttorney General
APPROVED: OPINION COMMITTEE Hawthorne Philllws,Chairman W. V. Geppert, Co-chairman Thomas Mack Pat Bailey John Reeves W. 0. Shultz Staff Legal Assistant A. J. Carubbl, Jr.

- 32 -