December 22, 1948. 

Hon. Howard D. Dodgen, Executive Secretary 

Game, Fish and Oyster Commission 

Austin, Texas 

Opinion No, V-751. 

Re: The authority of the Game, 

Fish and Oyster Commission 

to regulate the taking and 

the possession limit of minnows from Possum Kingdom 

Lake. 

Dear Mr. Dodgen: 

You have requested an opinion with reference to 

the above-captioned subject, in the following respects: 

"At the regular,quarterly meeting of 

the Game, Fish and Oyster Commission held 

in Austin, Thursday, October 14, 194b, a 

resolution was adopted, under the authority 

of H. B, 1049, 47th Legislature, page 839, 

chapter 515, whereby a previous resolution 

adopted by said Commission was amended. 

"The resolution referred to, among 

other things, prohibited the taking of 

minnows, by any means and at any time,from 

the waters of Possum Kingdom Lake. The 

more recent amendment referred to seeks 

to relax the previous regulation so as to 

allow the use of common minnow seines of 

not more than ten feet in length, in the 

taking of minnows from Possum Kingdom Lake, 

and to further restrict the number of minnoawhich may be taken from said Lake and 

which may be possessed. 

It e o . We, therefore, respectfully request your opinion on the following questions: 
Hon. Howard D. Dodgen, Page 2, v-751. 

"1. Does the Game, Fish and Oyster Commission have authority to regulate or prescribe the means and methods 

for taking minnows from Possum Kingdom 

Lake? 

“2 * Does the Game, Fish and Oyster Commission have authority to limit 

the number of minnows to be taken and 

possessed from such Lake?" 

Your inquiry requires the consideration of 

whether the statute authorized the Commission to promulgate the rule in question initFally, and thereafter 

whether such authority *as repealed by subsequent legislation. 

We first dispose of the question as to whether 

Acts 1941 47th Leg., 

978j(notej, V. P. C., 

Ch. 515, Page 839, codified es Art. 

authorizes the Commission to amend 

a rule previously adopted by it with reference to the taking of minnows from Possum Kingdom lake. 

are: 

The pertinent provisions of the foregoing Act 

"Section 1. It shall be unlawful 

to take, catch, or attempt to take, 

catch, or have in possession, OP dispose of, any fish from the waters of 

the lake impounded by Possum Kingdom 

Dam, which Dam is situated in Palo 

Pinto County, except when same may be 

permitted in regulations promulgated 

in accordance with the directions given 

in this Act. 

“Sec. 2. It shall be the duty of 

the Game, Fish and Oyster Commlssion immedlatelg, and thereafter from time to 

time, to make studies of the supply of 

fish and each species of fish In the body 

of water impounded by Possum Kingdom Dam; 

to determine the food supply available 

therein for the various fishes; the relationship of the species of fish one to 

the other; the spawning habits and rate 

of reproduction of the different species 
.: . 

Hon. Howard D. Dodgen, Page 3, v-751. 

of fish in this body of water; end on the 

basis of this information to equitably 

permit the taking of any species of fish 

from said body of water at such time or 

seesons, and in such numbers and sizes, 

and with such tackle or gear es will not 

Interfere with the conservation of fish 

in said body of water in the public lnterest. It shall also be the duty of the 

Game, Fish and Oyster Commission to provide regulations that will permit a reasonable harvest of the annual increase of any 

end all species of fish in the lake waters 

impounded by Possum Kingdom Dam with due 

regard to the future supply of such fish 

and the maximum public recreational benefit therefrom. 

"Sec. 4, Any regulation permitting 

the taking of fish or permitting the use 

of certain gear or tackle or providing an 

open season for taking fish on the waters 

impounded by Possum Kingdom Dam made in 

accordance with the provisions of this Act 

shall remain in full force and effect until same is suspended or emendep, end any 

suspension or amendment of a regulation 

shall be done after the same manner and 

with the same approval required for the 

promulgation of a regulation made hereunder, 

"Sec. 5. Any person who fishes, OP 

attempts to take or catch fish, or has 

any fish in his possession, or disposes 

or attempts to dispose of same, or who 

uses any tackle or gear for taking or ettempting to take or catch fish in any of 

the waters impounded by Possum Kingdom 

Dam, except in accordance with permissive 

regulations Issued by the Game, Fish and 

Oyster Commission of the State of Texas 

and approved by the Board of Directors of 

the Brazos River Conservation and Reclametlon District end then in effect, OP without having in his possession the license 

required of him by this Act, shall be deemed guilty of a misdemeanor end upon copvictlon shall be fined in a sum not less than 

Ten Dollars ( lo), nor more than Two Hundred Dollars $200). 
Hon. Howard D. Dodgen, Page 4, V-751. 

“Set, 7. All laws or parts of laws 

of this State which to any degree permit 

fishing in Possum Kingdom Lake be and the 

seme are hereby repealed, and all other 

fishing laws of this State, in so far as 

they conflict with any provision of this 

Act, be end the same are hereby repealed.” 

Under authority granted the Commission by the 

foregoing provlslons, the Commission previously promulgated a rule closing the waters of Possum Kingdom Lake 

to the taking of minnows. You now wish, by amendment, 

to relax such rule by permitting the taking of minnows 

through the use of a minnow seine not to exceed ten feet 

in length, end not to exceed fifty minnows in possession. 

We think that minnows, which are unquestionably 

fish, come within the regulatory provisions of Section 2 

of the Act, which, under the clear language of the Act, 

grants authority to the Commission to regulate the “tackle 

or gear” with which fish may be taken from Possum Kingdom 

Lake, end the possession limit thereof. Regulating the 

length of a minnow seine would come within such prescribed 

authority. 

The authority of the Commission to amend a rule 

previously adopted by it, with respect to the-n of 

fish from Possum Kingdom Lake, is found in Section & of 

the Act. 

The second consideration requires the determination of whether subsequent legislation has repealed the 

authority of the Commission to regulate the taking of minnows from Possum Kingdom Lake. 

In this regard, you particularly refer us to 

the provisions of Acts 49th Leg., 1945, Ch. 9, Page 13, 

codified es Art. 9276, V. P. C., the pertinent provisions 

of vhich are: 

“Section 1. There shall be no closed 

season OF period of time when it shall be 

unlawful to take, catch or retain fresh 

water fish by the use of ordinary hook end 

line OP artificial lures. Other devices, 

the use of which 1s permitted by law, mey 

be used for the purpose of taking fresh 

water fish et any time of the year, but 

only In compliance tiith such other restrictions as are placed on their use by the laws 

of this state. 
Bon. Howard D. Dodgen, Page 5, v-751. 

"Set o 2.. It shall be unlawful for 

any person to take from public fresh weters,end retain, or place in any container, boat, creel, live-box OP on any fishstringer any large-mouth black bass, smallmouth black bass, spotted bass, or any 

sub-species of large-mouth black bass, 

smell-mouth black bass, spotted bass, that 

is less than seven (7) inches In length. 

'Sec. 3* It shall be unlavful for 

any person In any one day to catch end retain, or to place on or In any device OP 

container for holding same while he is 

fishing, any fish that is taken from the 

public fresh waters of this state in excess of the following limits: largemouth black bass,small-mouth black bass, 

spotted bass, or any sub-species of the 

seme, 

(151, 

singly or in the aggregate, fifteen 

of which not more than ten (10) 

shall be of greater length than eleven 

(11) Inches; white bass, twenty-five (25); 

blue catfish, channel catfish and yellow 

catfish, singly or In the aggregate,twentyfive 25 ; crappie or white perch, twentgfive t 25 1 D 

“Sec. 4. Any person who violates any 

provisions of this Act, upon conviction 

shall be fined In a sum not less than Five 

&L,O;L Dollars, nor more than Fifty ($50.00) 

“Sec. 5. All laws or parts of laws, 

local, general, or speciel,insofar as they 

provide a closed season or period of time 

when It Is unlawful to take or catch fish 

or to use artificial lures, or insofar as 

they provide a size limit, possession limit, 

or daily catch limit, or otherwise conflict 

with any provision of this Act, shall be end 

the same are hereby repealed; except that 

nothing herein contained shall repeal Cha ter 

213, House Bill NO. 654, Regular Session, g 8th 

Legislature, or regulations made thereunder 

to govern the taking of fish in Lake Texoma, 

which Is the body of wtter impounded by the 

dam at Denlson, Texas. 
Hon. Howard D. Dodgen, Page 6, V-751. 

Sectlon 1 of the foregoing Act, as quoted 

above, does not repeal the authority of the Commission to promulgate regulations prescribing the means 

and methods with which fish may be taken from Possum 

Kingdom Lake, except to the extent that the Commission 

may not close the fishing season on Possum Kingdom Lake 

at any time during the year for the taking, catching 

or retaining of fresh water fish "by the use of ordinary hook and line or artificial lures.l' Section 1 

further provides specifically that: 

II 

. . . Other devices, the use of 

which is permitted by law, may be used 

for the purpose of taking fresh water 

fish at any tFme of the year, but only 

in compliance with such other restrictions as are placed on their use by the 

laws of this state." 

This language would indicate that the Commission is not authorized to close any portion of the year 

to the taking of minnows by the use of a minnow seine 

from the waters of Possum Kingdom Lake, but no further 

restriction is imposed on the regulatory authority of 

the Commission pertaining to the length of minnow seines. 

With reference to the authority of the Commlssion to exact,' by proper regulation, a possession limit 

on minnows taken from Possum Kingdom Lake, it will be 

observed that Art. 927a, V. P. C., quoted above, prescribes 

a pcesession l'imit on large-mouth black bass, small-mouth 

black bass, spotted bass, white bass, blue catfish, channel catfish, yellow catfish and crappie. No imposition of 

a possession limit on minnows is found in the general possession statute as noted. Therefore, the provisions of 

Art. 927a, V. P. C., are not incompatible with the imposition of a possession limit by the Game, Fish and Oyster 

Commission, by a proper regulation complying with the provisions as to notice, on minnows taken from the waters of 

opossum Kingdom Lske. 

No inquiry having been made as to the constltutlonalitg of Acts 47th Leg., 1941, Ch. 515, Page 839, we 

express no opinion thereon. 
Ron, Howard D, Dodgen, Page 7, V-751. 

SUMMARY 

The Game, Fish and Oyster Commission Is authorized under the provisions 

of Acts 47th Leg., 1941, Ch, 515, Page 

839, to amend a regulation heretofore 

adopted by it, in order to prescribe the 

means and methods with which rbinnows may 

be taken from the waters of Possum iiingdom Lake and to set a possession limit 

on same, 

Yours very truly 

ATTORIVEY GENERAL OF TEXAS 

APPROVED: 

DJC:jmc