### THE ATTORNEY GENERAL OF TEXAS

Mr. Andrew Sansom **Opinion NO.**  JM-1206 Executive Director Texas Parks andWildlife 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 ofcommercial shrimpers to sell finfishl captured inthe course ofharvesting shrimp from the waters ofthis state. You askwhether the captain and each paid member ofthe crew of a boat licensed as a F commercial shrimp boat are required tohold 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 ofthe Parks and Wildlife Department has answered the question inthe 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 isespecially true where the administrative construction iscontemporaneous, ornearly 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.); 

### 2Tex. Jur. 3d,

1. B*Finfish" are @@thoseliving natural resources having either cartilaginous orbony skeletons (Chondrichthyes and Osteichthyes)." Parks &Wild. Code §47.001(14).

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'. The captain and each paid member ofthe crew of a boat licensed as commercial shrimp boat under chapter 77of the Parks and Wildlife Code must obtain ageneral commercial fisherman's license. Parks & Wild. Code 577.040(b). A commercial fisherman is

aperson who catches edible aquatic products except oysters from the water ofthis state forpay or for the purpose of sale, barter,
orexchange, orany other commercial purpose.
J&g&547.001(l). The general commercial fisherman's license authorizes the licensee to engage inbusiness asa commercial fisherman. w ia, 547.002(a).

Incontrast, section 47.003(a) of the code provides, "Noperson may engage inbusiness as acommercial finfish fisherman unless he has obtained a commercial finfish fisherman's license." Acommercial finfish fisherman is na person who catches onlv finf~ishfrom the tidal waters2 of this state forpay or for the purpose of sale, barter, or exchange.w Id. 547.001(2) (emphasis and footnote added).

The department's position onthis issue isbased 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 toprotect asegment of the commercial fishing industry while at the same time promoting conservation of finfish species. Insupport of these claims, our attention isdirected topublic testimony offered in support of Senate Bill 302 of the 66th Legislative Session in1979.

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" tomean, inrelevant pa*, "aperson who catches fish, other than." The term "finfish" was limited inthe bill

2. "'Tidal water' means all the salt water of this state, including that portion ofthe state's territorial water inthe Gulf ofMexico within three marine leagues from shore." L 547.001(7). -,

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toeight particular species of fish. The bill would have carved a special niche forholders of commercial finfish fisherman's licenses, inessence 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 302was never reported out of the Senate Committee on Natural Resources. The failure to report abill from committee or inaction by the legislature
on a particular bill does not conclusively establish legislative intent asto the subject matter ofthe bill. El Chico Cgpp. Pole **V. 0**  ,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 isnot indicative of its intent to reject the principles embodied inthe bill. Such intent, however, is clearly evident from a comparison ofthe provisions ofthe bill with the sections ofthe Parks andWildlife Code that occupy their place.

The plaip language ofthe Parks andWildlife Code does not support the dichotomy set out in Senate Bill 302. Because the captain and crew ofacommercial shrimp boat are entitled by their licenses to engage in business as commercial fishermen, they are bydefinition 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 302was 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 toconstitute asubset **of** the former, at least where edible species of finfish are concerned. Neither the definitions nor the provisions governing the issuance ofthe two licenses inform those persons who must determine the effect ofthe statutes ontheir occupations of the dichotomy urged by the department.

The best indicator of legislative intent isthe language of the enacted law. &R wre v. Citv of **Dam** 170 S.W.Zd 722 (Tex. Comm'n App. 1943, opinion adopted;; Citv ofNassau Bav v.moarad 582 S.W.2h 505, 508 -(Tex. Civ. ADD. - Houston ristDist.i 1979, writ ref'd n.r.e.). The rei&ant provisions ofthe -Parks andWildlife 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 wedo not believe they are indefinite ormisleading. Accordingly, we conclude that the

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

captain and paid **members** ofthe **crew** ofa**boat** licensed as a commercial shrimp boat are not required to obtain commercial finfish fisherman's licenses inaddition to the general commercial fisherman's license required by section 77.040 of the **Parks** andWildlife Code inorder to sell finfish species that otherwise are lawful to sell.3

The captain and paid **members** ofthe crew of a boat licensed asa commercial shrimp boat are not required toobtain commercial finfish fisherman's licenses inaddition 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 ofTexas

3. Itmight beargued 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 iscompelled **by** the plain language ofthe Parks andWildlife Code and isbeyond our authority tocorrect. i

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