545 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Ronorable A. C. %nborn 

crL%Inal District Attorney 

Rarris County 

Eouston 2, Texas 

Gear Sir: Opinion No. O-6525 

Re: 

' Tour request for 'en=;+) 

reads in part, 3s follows: 

nor anenaing Ii0 

of the 46th La 

y thi G~overl 

er 11, Acts 

nonresident 

nt cozkieroi31 

ses for 3ame. 

licenses to 

to nonresident 

st 31st of 

your opinion 3s 

ct cencels 311 licenses 

ued to nonresident 

ng the above inquiry as it pertains to 

cm131 fisherman*3 license, ?Ve invite 

ction 1 of House Dill 683, Chapter 11, 

xth LeGisletuce, appenring 3s Article 

nnoteted Pen31 Code. said section read- 

.%ec. 1. A *nonresident comercial fisherman* for the purpose of this Act is hereby Gefined 

3s folloV~s: 

"'Any person v&o is a citizen of any other 

stete, or any person who has not contlnuslly been 
‘-. 

” 

: i 

_,_ c _.__.. -... 

,i< 

.) 

flonorable A. C, Nlnborn, Pag3 2 

a bone fide resident of thia state for a period 

of tdme more than twelve (12) months, end who 

takes, catches, or assists in taking or cotching, 

fish or shrimp or oysters or any other edible 

aquatic life from the tidal sslt waters of this 

State for pay or for the purpose ofsale, b3rter, 

or excb3.npe,'n 

Section 1 of House Bill No. 211,'Aots of the Forty3bt.h Legislature, in emending the above quoted Artiole reads 

88 follows: 

Wection 1. A 'Non resident Comnerciel Fishermenf,for the purpose or this Act is hereby defined 

as follorvs: 

*'Any person who is 3 citizen -of eny State, 

or ans DCrUOn viho h3s not continually been 3 bona 

fide "tihabitant of this state for 3 bsriod of t&e 

more than Welvs (12) : 

Include partnerships, associati 

nonths, the word person shsll 

ions 3ncicorpor3tions 

U&o have not continually had 3 bona fide place ofbusiness in this state for a period of ti116 more 

than twelve (12) months, and who tekes, assists iu 

taking or catching, fish or shrimp or oysters, or 

eny other edible aquatic life from the tidsl salt 

waters of this state for pay or forthe purpose of 

sale, bertor or exchanee+(" (Emphasis added) 

A comparison of the above sections discloses that 

the amending legislation functions only to broaden the scope 

of those persons required to hold 3 nonresident co~mmeroiel~ 

fisherman's license. This view is supported in that the Two 

hundred Dollar (+200.00) iee for such licenses remains nnch3ng3a. 

Therefore, it is our opinion that House Bill No. 

211, Aots of the Fortg-ninth Legislature doea not canoe1 said 

licenses and those fishermen operstinp, thereunder may continue 

until AuGust 91, 1945, the normal date of expiration. 

)n determining your inquiry 3s to whether Seotion 

4 of House Dill Xo, 211, Aots of the Forty-ninth Legislature, 

canoels all prior licenses issued on nonresident cdnucercial 

fishermen's boata, we call to your ettention that prior to 
JJJnorable A. C, Winborn, Pege 3 

passage of the above Act, the law contained no speoific provision pertaining to the licensing of nonresident commercial 

fishing boots. Resident and nonresident oo,amercial fishercan both receiving tholr boat llcenoea by virtue of Article 

9943, Section 3, Subsection 7, V.A.P.C., sa%a subsection 

reading as follows: 

"Fish Boat License; for boats equipped with 

e motor of 

lers‘($3).n 

any kind or with sells, fee Three DolSeotions 2 and 4 of Eouse Bill no. 211, Acts of 

the Forty-ninth Legislnture, have made specific provisions 

for then licensing of nonresident commercial fishing boats; 

said sections reodlng es follov~s: 

Sea. 2. A *IJonresid&t Commercial Fishing 

Boat' for the purposea of this Act is Imreby defined as follows: 

"'Any boat or vessel, which Is reglstered~in 

any other State, or which hasnot continually been 

registered in this State f6r a period of time more 

than twelve (12) months, or which is not owned by 

any person,.partnership, association of persons 

or corporation which has h8d e bona fide place of 

business in this State for 3 period of time more 

than twelve (12) months, end which is used for,the' 

purpose of tekingj or assisting in taking or catching, fish, shrimp, oysters or any other edible 

aquatic life from the tidal salt waters of this 

Steto for pay or for the purpose of sale, barter 

or exchange." 

"Sec. 4. License for Nonrealdent Commercial 

Fishing Peak required;- amount of fee. Before any 

*Nonresident Commercial Fishing Boat' shall be 

used for the purpose of taking or assisting in 

taking or catching, fish, shrimp, oysters or any 

other edible aquatic life from the tidal salt 

waters of this State for pay or for the purpose 

of sale, barter or 'exchan.Se, 3 license to be knovm 

es 'lionresident Co-mmeroiel Fishing Poet License', 

shall first be procured from the Came, Fish 3nd 

Oyster Coa31aslon of Texas, or one of its authorized agents, privileging them.90 to do. 
Honorable A. C. Sinborn, Page 4 

.,. ‘. 

.I._. : 

“The fee ‘for a Nonresident Coznmercial Fishing 

Boa’t License shall be Two Thousand Five Bundred 

($2500.00) Dollars.” 

: ., 

..*. 

For a oonslderation of the constitutionality of 

the above sections of House Bill No. 211, Aots of the Portyninth Le&slature, rve quote from the following authorities: 

Voluma 11, Seotion 34, Ruling Case Law, page 1046, 

reading, in part, as follows: 

“By reason of, the fact that title to fish 

and Earno within the boundaries of a state is vested in the ~onle of the state in their sovoreion 

capacity, ihe-Legislature bas greater pov:er ov& 

such property than it has over almost any other 

conznodity, and in order to preserve such property 

to the people of the state, the &~vnakin& asselrlbly may cneot that only citizens of the state shall 

take fish from the weters v:lthin its jurisdiotion 

395; 

“ky, 

. . . 

“. . . Likewise, the state ( having pov;er to 

exclude nonresidents from fishing In the state, 

may grant them the privilec,e upon conditions &ifferent from those it imposes on its residents as, 

for example requiri~ng a larger boat license fee.” 

(Emphasis added) 

On this point see McCready v. Va., 94 U. S. Tieports 

Qroer v. Bonn., 161 I?. 3. Reports 519; People v. Setun126 N. Vi, 844, 161 &?itih. 624. 

Bearing in mind that the state through its sovereign 

Foviers may oonstitutional.ly exclude nonresidents altagether 

from its territorial waters,.,we invite your attention to Vol- . 

Rae 33, Section 21 of American Jurisprudence, pas!o 342, read-- 

in&, In pert, es, follows: 

“Sec. 21. The oonstitutional inhibition as 

to impairment of .the obligation of’ aontracts does 

not extend to licenses. A license itself is not 

a oontract between ,the sovereignty and the licensee, 

and is not property in ‘any constitutional sense. 

It does not oonfer a vested, permanent or absolute 

right, but only a personal privilege to be exarcised under existing restrictions and such as may 

. 
. I 

. . 

,:: 

: _ 

. . 

: ‘; 

Honorable A. C. Wnborn, Pace 5 

. 

thereafter be reasonably imposed. Free latitude 

is reserved by the povernmentol authority to impose new or additional burdens on the licensee or 

to revoke the license. Moreover, this is I& penera1 rule notwithstanding, the expondituro of money 

by a licensee in relianoo upon the license. ., . a" 

IDnphasis added) . 

.On this point see State ex rel Ohsnan Ez Sons Co., 

Ino,, V, Starkweather, 7 N. X. 26 747; Olson et al. v. State 

Conservation Commission, 293 N. %. 262, 255 ':!is; 473. 

Thus it is seen that the state, after choosing to 

crant liccnsas to nonresidents, mey impose nevi or additional 

burdens upon these liaensoas, or may revo!ce ssid licenses 

altogether, without abridging the obligations of a contraat, 

This being true, Article 4, Seotion 2, of the Federal Constitution, entitled the nDrivileges and &munitios*~ 

clause, is the remaining fsctor to be met in our determination of the effect of House l3111No. 211, Acts of tho Fortyninth Legislature, as pertains to nonresident co.mneroi3l 

fishermen's boat lioonsos. In this oonnection, we direct 

your attention to State v. Ashman, 135 S. Y. 325; 123 Term. 

654, a case which contains a good statement of tha .majority 

rule in the United States. Said statement reads as follows: 

"The rights, privileges, and inmunities which 

are secured by this clause to the ~inhabltants of 

the several states do not include 8ny riflhts in 

the, property of the several statesheld in trust 

for their own inhabitants, and laws which prohibit 

them in whole or in part from participating in the 

benefits. of that property do not deprive-them of 

any constitutional rights. The majority of the 

states have enaoted laws prohibiting or limiting 

the rights of nonresidents to take game or fish 

within. their respective .boundaries, and, upon the 

prinqiples above stated, thia legislation has been 

Invariably upheld by all the oourts." 

In the light of the above oited suthorities, it is 

the opinion of this department that Section 4 of House Bill 

no. 211, Acts of tho Forty-ninth ~JeGiSIStUro, cancels all 
_ . 1 

i 

: 550 

. 

.“::‘,::“ 

.- 

. . 

..I 

: 

, .: ., 

.~, 

._ 

:~. 

. 

: 

i 

~onoradle A. C. i&born,‘Page 6 

’ exfsting licenses issued on nonresfdent comerolal rishing 

boats; the bill having become effeotive as of April 2, 1945, 

by passing v;ith the required number of votes In eaoh house 

of th.e Legislature and sipned by the Governor. 

. 

Yours vory truly . 

ATTORQq GENmL OF TEXLS 

Benjamin xoodall 

Assistant 

BW:mp 

. 

. 3 

- 

: 

%. .~. 

:, 

. . 

. 

. . 

.I . . 

*, ; 

’