THE ATTORNEY GENERAL 

OF TEXAS 

Mr. Andrew Sansom Opinion NO. JM-1206 

Executive Director 

Texas Parks and Wildlife Re: Whether licensed commercial 

Department shrimpers must hold commercial 

4200 Smith School Road finfish fisherman's licenses in 

Austin, Texas 78744 order to. sell finfish (RQ-1852) 

Dear Mr. Sansom: 

Your predecessor requested the opinion of this office 

on an issue concerning the authority of commercial shrimpers 

to sell finfishl captured in the course of harvesting shrimp 

from the waters of this state. You ask whether the captain 

and each paid member of the crew of a boat licensed as a 

F commercial shrimp boat are required to hold both a general 

commercial fisherman's license and a commercial finfish 

fisherman's license in order to sell finfish species that 

are otherwise lawful to sell. The staff of the Parks and 

Wildlife Department has answered the question in the affirmative. 

It is well established that the construction of a 

statute by the agency charged with its administration is 

entitled to great weight. Ex oarte Roloff, 510 S.W.Zd 913 

(Tex. 1974). This is especially true where the administrative construction is contemporaneous, or nearly so, with the 

statute itself. Durrouahs V. les 181 S.W.2d 570 (Tex. 

1944). The courts will not, howeve;, abide by an administrative agency's interpretation that is contrary to the 

clear meaning of an unambiguous statute. Texas Health 

Facilities Comm'n V. Paso Medical 573 S.W.2d 291 (Tex. 

Civ. App. - Tyler 1978, writ ref'd n.h.e.); 2 Tex. Jur. 3d, 

1. B*Finfish" are @@those living natural resources having either cartilaginous or bony skeletons (Chondrichthyes 

and Osteichthyes)." Parks & Wild. Code § 47.001(14). 

p. 6383 
Mr. Andrew Sansom - Page 2 (JM-1206) 

'. 

The captain and each paid member of the crew of a boat 

licensed as commercial shrimp boat under chapter 77 of the 

Parks and Wildlife Code must obtain a general commercial 

fisherman's license. Parks & Wild. Code 5 77.040(b). A 

commercial fisherman is 

a person who catches edible aquatic products 

except oysters from the water of this state 

for pay or for the purpose of sale, barter, 

or exchange, or any other commercial purpose. 

J&g& 5 47.001(l). The general commercial fisherman's license 

authorizes the licensee to engage in business as a commercial fisherman. w ia, 5 47.002(a). 

In contrast, section 47.003(a) of the code provides, 

"No person may engage in business as a commercial finfish 

fisherman unless he has obtained a commercial finfish 

fisherman's license." A commercial finfish fisherman is na 

person who catches onlv finf~ish from the tidal waters2 of 

this state for pay or for the purpose of sale, barter, or 

exchange.w Id. 5 47.001(2) (emphasis and footnote added). 

The department's position on this issue is based on its 

understanding of the nature and purpose of the commercial 

finfish fisherman's license. The license is thought to 

constitute a specialized and restricted entitlement to 

capture finfish species for commercial purposes. The 

restriction, we are told, was meant to protect a segment of 

the commercial fishing industry while at the same time 

promoting conservation of finfish species. In support of 

these claims, our attention is directed to public testimony 

offered in support of Senate Bill 302 of the 66th 

Legislative Session in 1979. 

Senate Bill 302 would have added a new class of 

commercial fishing license -- the "tidal water commercial 

finfish fisherman's license" -- to the then existing tidal 

water commercial fisherman's license and nontidal water 

commercial fisherman's license. Bill File, S.B. 302, 66th 

-g. (1979) (introduced version). It would also have 

changed the definition of "tidal water commercial fisherman" 

to mean, in relevant pa*, "a person who catches fish, other 

than." The term "finfish" was limited in the bill 

2. "'Tidal water' means all the salt water of this 

state, including that portion of the state's territorial 

water in the Gulf of Mexico within three marine leagues from 

shore." L 5 47.001(7). 

-, 

p. 6384 
Mr. Andrew Sansom - Page 3 (JM-1206) 

to eight particular species of fish. The bill would have 

carved a special niche for holders of commercial finfish 

fisherman's licenses, in essence granting them the exclusive 

right to exploit the designated finfish species for commercial purposes. &!8 Public Hearina on S.B. 302 Before th 

66th Leg. 

(testimony of Senator Babe &hwarts) (tape(%laLfe 

1979: 

from 

Senate Staff Services). 

The bill history prepared by the Legislative Reference 

Library shows that Senate Bill 302 was never reported out of 

the Senate Committee on Natural Resources. The failure to 

report a bill from committee or inaction by the legislature 

on a particular bill does not conclusively establish 

legislative intent as to the subject matter of the bill. El 

Chico Cgpp. V. P 0 ole , 732 S.W.2d 306, 314-15 (Tex. 1987). 

This rule, strictly speaking, means that the failure of the 

legislature to act on Senate Bill 302 is not indicative of 

its intent to reject the principles embodied in the bill. 

Such intent, however, is clearly evident from a comparison 

of the provisions of the bill with the sections of the Parks 

and Wildlife Code that occupy their place. 

The plaip language of the Parks and Wildlife Code does 

not support the dichotomy set out in Senate Bill 302. 

Because the captain and crew of a commercial shrimp boat are 

entitled by their licenses to engage in business as commercial fishermen, they are by definition not prohibited 

from catching, in addition to shrimp, edible aquatic 

products other than oysters. The definitions of "commercial' 

fisherman" and "commercial finfish fisherman" now in place 

were adopted during the same legislative session at which 

Senate Bill 302 was offered. Acts 1979, 66th Leg., ch. 260, 

at 550; Acts 1979, 66th Leg., ch. 623, at 1398. These 

definitions clearly indicate that the legislature intended 

the latter occupation to constitute a subset of the former, 

at least where edible species of finfish are concerned. 

Neither the definitions nor the provisions governing the 

issuance of the two licenses inform those persons who must 

determine the effect of the statutes on their occupations of 

the dichotomy urged by the department. 

The best indicator of legislative intent is the language of the enacted law. &R wre v. Citv of Dam 

170 S.W.Zd 722 (Tex. Comm'n App. 1943, opinion adopted;; 

Citv of Nassau Bav v. moarad 582 S.W.2h 505, 508 -(Tex. 

Civ. ADD. - Houston rist Dist.i 1979, writ ref'd n.r.e.). 

The rei&ant provisions of the -Parks and Wildlife Code may 

not describe the activities in which holders of general 

r 

commercial fisherman's licenses may engage in the way the 

department would prefer, but we do not believe they are 

indefinite or misleading. Accordingly, we conclude that the 

p. 6385 
Mr. Andrew Sansom - Page 4 (JM-1206) 

captain and paid members of the crew of a boat licensed as a 

commercial shrimp boat are not required to obtain commercial 

finfish fisherman's licenses in addition to the general 

commercial fisherman's license required by section 77.040 of 

the Parks and Wildlife Code in order to sell finfish species 

that otherwise are lawful to sell.3 

The captain and paid members of the crew 

of a boat licensed as a commercial shrimp 

boat are not required to obtain commercial 

finfish fisherman's licenses in addition to 

the general commercial fisherman's license 

required by section 77.040 of the Parks and 

Wildlife Code in order to sell finfish 

species that otherwise are lawful to sell. 

WARYXELLER 

First Assistant Attorney General 

mu MCCRBARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon 

Assistant Attorney General 

JIM MATTOX 

Attorney General of Texas 

3. It might be argued that our conclusion here renders 

the commercial finfish fisherman's license wholly redundant, 

since the only license any individual would need is the 

general commercial fisherman's license. We acknowledge this 

prospect, but add that the result is compelled by the plain 

language of the Parks and Wildlife Code and is beyond our 

authority to correct. 

i 

p. 6386