December 22, 1948.

Hon. Howard D. Dodgen, Executive Secretary Game, Fish and Oyster Commission Austin, Texas OpinionNo, V-751.

Re: The authority of theGame, Fish and Oyster Commission to regulate the takingand the possession limit of minnows from PossumKingdom Lake.

Dear Mr. Dodgen:

You have requestedan opinionwith reference to the above-captioned subject, in the following respects:

"At the regular,quarterlymeeting of the Game, Fish and Oyster Commission held inAustin, Thursday, October 14, 194b,a resolutionwas 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 PossumKingdom Lake. The
more recent amendment referred to seeks to relax the previous regulation so as to allow the use of commonminnow seines of not more than ten feet in length, in the taking ofminnows from PossumKingdom Lake, and to further restrict the number ofminnoawhich may be taken from said Lake and which may be possessed.

It e o
.We, therefore,respectfullyrequest your opinion on the followingquestions:Hon. Howard D. Dodgen, Page 2, v-751.

"1. Does the Game, Fish and Oyster Commissionhave authority to regulate or prescribe themeans and methods for takingminnows from PossumKingdom Lake?

“2 * Does the Game, Fish and Oyster Commissionhave authority to limit the number ofminnows 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authorized the Commission to promulgate the rule in question initFally,and thereafter whether such authority *as repealed by subsequent legislation.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 questionas to whether Acts 1941 47th Leg., 978j(notej,V. P. C.,Ch. 515, Page 839, codifiedes Art. authorizes the Commission to amend
a rule previouslyadopted by it with reference to the taking ofminnows from PossumKingdom lake.

are: The pertinent provisions of the foregoingAct

"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 impoundedby PossumKingdom Dam, which Dam is situated in Palo Pinto County, exceptwhen samemay be permitted in regulationspromulgated in accordance with the directions given in thisAct.

“Sec. 2. It shall be the duty of the Game, Fish and Oyster Commlssion immedlatelg, and thereafter from time to time, tomake studies of the supply of fish and each species of fish In the body ofwater impoundedby PossumKingdom Dam; to determine the food supplyavailable therein for the various fishes; the relationship of the species of fish one to the other; the spawninghabits and rate of reproduction of the different species.:

.

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

of fish in thisbody 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 Interferewith 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 thatwill permit a reasonable harvest of the annual increase of any end all species of fish in the lakewaters impoundedby PossumKingdom Dam with due regard to the future supply of such fish and themaximum public recreationalbenefit therefrom.

"Sec. 4, Any regulationpermitting the taking of fish or permitting the use of certain gear or tackle or providingan open season for taking fish on the waters impoundedby PossumKingdom Dam made in accordance with the provisions of thisAct 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 samemanner and with the same approval required for the promulgation of a regulationmade 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 impoundedby PossumKingdom Dam, except in accordance with permissive regulations Issuedby the Game, Fish and Oyster Commission of the State of Texas and approved by the Board of Directors of the Brazos River Conservationand Reclametlon District end then in effect, OP without having in his possession the license required of him by thisAct, 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 PossumKingdom Lake be and the seme are hereby repealed,and all other fishing laws of this State, in so far as they conflictwith any provision of this Act, be end the same are hereby repealed.”

Under authority granted the Commissionby the foregoing provlslons, the Commission previouslypromulgated a rule closing thewaters of PossumKingdom Lake to the taking ofminnows. You now wish, by amendment, to relax such rule by permitting the taking ofminnows through theuse of a minnow seinenot to exceed ten feet in length,end not to exceed fiftyminnows in possession.

We think thatminnows, which are unquestionably fish, come within the regulatoryprovisions of Section 2 of theAct, which, under the clear language of theAct, grants authority to the Commission to regulate the “tackle or gear” with which fish may be taken from PossumKingdom Lake, end the possession limit thereof. Regulating the length of a minnow seine would comewithin such prescribed authority.

The authority of the Commission to amend a rule previouslyadopted by it,with respect to the-n of fish from PossumKingdom Lake, is found in Section & of theAct.
The second considerationrequires the determination of whether subsequent legislationhas repealed the authority of the Commission to regulate the taking ofminnows from PossumKingdom Lake.

In this regard, you particularlyrefer us to the provisions ofActs 49th Leg., 1945, Ch. 9, Page 

### 13, codifiedes Art. 9276, V. P. C., the pertinent provisions ofvhich are:

“Section 1. There shall be no closed
season OF period of timewhen it shallbe unlawful to take, catch or retain fresh water fish by the use of ordinaryhook 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 tiithsuch other restrictionsas are placed on their use by the laws of this state.Bon. Howard D. Dodgen, Page 5, 

### v-751.

"Seto 2.. It shallbe unlawful for any person to take from public fresh weters,endretain, or place in any container, boat, creel, live-box OP on any fishstringerany large-mouthblack bass, smallmouth black bass, spottedbass, or any sub-species of large-mouthblack bass, smell-mouthblack bass, spottedbass, 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 Inany device OP container for holding samewhile 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-mouthblack bass, spottedbass, 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 catfishand yellow catfish, singly or In the aggregate,twentyfive 

### 25 ; crappie or white perch, twentgfive 

### 25 D t 1

“Sec. 

### 4. Any person who violatesany provisions of thisAct, upon conviction shall be fined In a sum not less than Five &L,O;L Dollars, nor more thanFifty ($50.00)

“Sec. 

### 5. All laws or parts of laws, local, general, or speciel,insofaras they providea closed season or period of time when It Is unlawful to take or catch fish
or to use artificial lures, or insofaras they provide a size limit,possession limit,
or daily catch limit, or otherwise conflict with any provision of thisAct, shall be end the same are hereby repealed; except that nothing herein contained shall repeal Cha ter 213, House Bill NO. 

### 654,Regular Session, 

### g8th Legislature, or regulationsmade thereunder to govern the taking of fish in Lake Texoma, which Is the body of wtter impoundedby the dam at Denlson, Texas.Hon. Howard D. Dodgen, Page 6, V-751.

Sectlon 1 of the foregoingAct, as quoted above, does not repeal the authority of the Commission to promulgate regulationsprescribing the means and methods with which fishmay be taken from Possum Kingdom Lake, except to the extent that the Commission may not close the fishing season on PossumKingdom 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 freshwater fish at any tFme of the year, but only in compliancewith such other restrictionsas are placed on their use by the laws of this state."
This languagewould indicate that the Commission is not authorized to close any portion of the year to the taking ofminnows by the use of a minnow seine from thewaters of PossumKingdom Lake, but no further restriction is imposed on the regulatoryauthority 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
onminnows taken from PossumKingdom Lake, it will be observed thatArt. 927a, V. P. C., quoted above, prescribes
a pcesession l'imit on large-mouthblack 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 incompatiblewith the imposition of a possession limitby theGame, Fish and Oyster Commission, by a proper regulation complyingwith theprovisionsas to notice, onminnows taken from thewaters of opossumKingdom Lske.

No inquiryhaving been made as to the constltutlonalitg ofActs 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 regulationheretofore 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:

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