January25,1972

Honorable James U.Cross Opinion No. M-1045 Executive Director Texas Parks hWildlife Dept. ne: Authority of Parks & John H. Reagan Building Wildlife Department Austin, Texas 78701 under the General.Law Statutes or the Uniform Wildlife Regulatory Act toplace special restrictions on removal of fish frompublic waters in bass tournaments, and Dear Mr. Cross: related questions Inyour opinion request to this office you ask the following questions: 1. Does the Parks andWildlife Department have authority under the General Game Law Statutes or under the Uniform Wildlife Regulatory Act (Art. 978j,V.P,C,) toplace special restrictions on the removal of fish frompublic waters by participants in **bass** tournaments? 2. Ifyour answer to question one is affirmative, under what circumstances or conditions would regulation be legally authorized? **3.** Does abass tournament constitute a lottery when prizes are given to successful fisherman? **4.** When a tournament is conducted on a lake previously stocked with bass at State expense, can theDepartment impose restrictions on participants in **bass** tournaments which would not otherwise apply to single fishermen? The Legislature has granted the Parks andWildlife Commission authority to issue proclamations, rules or regulations to control themeans andmethod andplace and manner inwhich wildlife resources may be lawfully taken, and to issue rules setting forth themost equitable and -5108-Honorable James U. Cross, page 2 (M-1045)

reasonable privileges in the taking of,such wildlife. ~See Article 9783-1, Sections 2, 4and 5Vernon's Penal Code. Subject to the restrictions placed upon the commissionby the above statutes, the commission has authority to control the taking of fish frompublic waters. We are unanle to express an opinion as towhether a special restriction on the removal of fish frompublic waters by participants in **bass** tournaments would be constitutional aswe do not have sufficient facts todecide this issue. However, wewould express serious doubts about thevalidity of any rule orproclamation that arbitrarily imposes restrictions on participants inbass tournaments but would not similarily restrict single fishermen. It is the opinion of this office that abass tournament isnot a lottery even though prizes are given to successful fishermen. One of tne elements needed to constitute a lottery is the award or distribution of theprize by chance. City of Wink v. Griffith Amusement Company, 100 S.W.Zd 6Y5 (;

Pex.Sup. 1936); Smith v. State, 127 zd 297 (Tex.Crim. 193Y); &ice v. SGste,156Tex.Crim. ?;:I 242 **S.w.Zd 433**  **(1951);-** State v. Socony Mobil Oil Company, 386 S.W.Zd 169 (Tex.Civ.App. **1964,** err. ref., n.r.e.). The catching of **bass** involves more skill than luck.
SUMMARY Under Art. 978j-1, V,P,C,, the Parks and Wildlife Commission and Department have authority to control the taking of fish frompublic waters. As towhether certain proposed special restrictions are valid we cannot saybecause theyhave not been presented tous.

Prepared by Dunklin Sullivan Assistant Attorney General

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Honorable James U. **Cross,** page 3 (M-1045)

APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman
non Darden Jim Swearingen Linward Shivers Glenn Brown SAMMcUANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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