## GENERAL ’ . THE A’JTORNEY OFTEXAS k$USTIS. **TEXAS** 7s711

The Honorable Clayton T. Garrison Executive Director Texas Parks &Wildlife Department JohnH. Reagan Building Austin, Texas 78701 Dear Mr. Garrison: Opinion No. H- 112 Re: Statur of Article 947. Vernon’s Texas Penal Code, and other laws regulating the harvesting of shrimp You have requested our answers to three questions concerning Articles 947 and 978j, Vernon’s Texas Penal Code, andother statutes having to dowith the harvesting of shrimp. Your first question is: “Has Article.947, ‘Vernon’s Texas Penal Code been superseded by the enactment of Texas Shrimp Conservation Act andthe Uniform Wildlife Regulatory Act and other more recent legislation, and if so; to what extent7” Since you posed that question, House Bill 833 of the 63rd Legislature (Acts 1973. 63rd Leg., p. 515, ch. 220) has become effective. Its §2 amended Article 947 and, by amending it, reaffirmed its validity as presently effective legislation. We therefore answer your first question that Article 947 has notbeen superseded by the enactment of any other legislation. However, as amended it now applies only to Harris, Galveston, Chambers and Victoria counties. Your second question asks:

“Does the Parks andWildlife Department lose regulatory authority over shrimp in Cameron, Brazoria, Jackson, Jefferson, Orange andWillacy counties following the effective date of House Bill 833, Acts of the 63rd Legislature, 19731”

p. 540The Honorable Clayton T. Garrison, page 2 (H-112)

House Bill 833, 01. amended Article 9783, V. T. P. C., by adding a new 0lA to provide: “Sec. lA. (a) Except as provided in Subsection (b) of this section, this Act applies to all coastal~waters inthis state with respect to fish, aquatic life, and marine animals.

“(b) Subsection (a) of this section does notapply to shrimp andoysters or to Harris, Galveston, Chambers, and Victoria Counties. ” The purpose of House Bill 833, as stated inits caption. was to include under the Uniform Wildlife Regulatory Act all coastal waters~ except Harris, Galveston, Chambers andVictoria counties andto make the provisions of Article 978j-1, V. T. P. C., applicable to all coastal waters with respect to fish, aquatic life, andmarine animals. However, the caption specifically states thatthe Act provides exceptions for shrimp andoysters. We ,donot read the amendatory language of §1of House Bill 833 as providing thatthe Uniform Wildlife Regulatory Act, as awhole, should notapply to shrimp or ,oysters. Ratherwe read itas only applying that exception to coastal waters which had not theretofore been covered but whichwere added by g1. It is our purpose in construing the Act to dete:- mine the intent of the Legislature. Any other interpretation **than** the on+ we have given immediately above would, we believe, distort the intent **of** the Legislature. Had the Legislature intended to remove entirely theauthority ofthe Department to regulate shrimp andoysters in all waters subject to the Uniform Wildlife Regulatory Act, it could have easily done so inafrvr less circuitous manner. It is our opinion, therefore, inanswer to your second question, that inall of the counties you have named, shrimp remain subject to the regulstion ofthe Parks andWildlife Department through the authority conferred by the Uniform Widlife Regulatory Act. Article 978j-1, ifthis authority existed under the Act prior to its amendment by House Bill 833. However, theActt

p. 541The Honorable Clayton T. Garrison, page 3 (H-112)

in $3(c) (1)provides that infour counties, including Jefferson and Orange, shrimp are not included inthe term “wildlife resources. ” The Department, therefore, did not have regulatory authority under the Uniform Wildlife Regulatory Act over shrimp inthose counties before or after the effective date of House Bill 833. However, Acts 1963, 58th Leg., ch. 339, p. 894, applying to Orange and Jefferson counties, authorizes the Game andFishCommission to regulate the taking of shrimp from coastal waters ofthose counties. The rights are the same as those conferred uponthe Department by §2 of Article 4075b, V. T. C S., the Texas Shrimp Conservation Act. Therefore, with the note that Orange and Jefferson counties are regulated under the Shrimp Act rather thanthe Uniform Wildlife Regulatory Act, it is our opinion that House Bill 833 didnot deprive the Parks andWildlife Department of regulatory authority over shrimp in Cameron, Braaoria, Jackson, Jefferson, Orange, and Willacy counties. Your third question asks whether House Bill 833 repeals, amends or modifies the authority granted the Department under various statutes including Articles 9783 and 978j-1, $13~. V. T. P. C., as amended in 1963. Article 978j of the Penal Code is a compilation of special laws applying to various counties under the title: “Local Game and Fish Laws”

. Acts 1955, 54th Leg., ch. 80, p. 363, is one such law applying to the waters of the Laguna Madre lying within the counties of Cameron, Kenedy andWillacy, andmaking it unlawful to take from those waters any speckled trout less than 12inches inlength or any flounder less than 12inches in length or any redfish less than4 inches inlength. We seenothing inHouse Bill 833 that would repeal or modify thatAct. Infact itwas especially saved from repeal by § 15of Article 978j-1. Section 13~ of Article 978j-1, V. T. P. C. , provides that, notwithstanding the powers vested inthe Parks andWildlife Commission, there is established inAransas County a zone inwhich it shall be unlawfulto use a net or seine. Again we see nothing inHouse Bill 833 (extending the effect of Article 978j-1 to all coastal waters) inconsistent with this provision and it is our opinion thatit is not repealed by House Bill 833.

p. 542The Honorable Clayton T. Garrison, page 4(H-112)

Finally, Chapters339 of the Acts of the 58th Legislature, like Chapter 80 of theActs ofthe 54th Legislature, supra, is a special law, codified under Article 978j of Vernon’s Texas Penal Code and applicable to Orange andJefferson counties andthe coastal waters thereof. We do notbelieve itwas the intention of the Legislature, inadopting House Bill 833, to overrule these specific provisions applicable to the two counties. InState v. Jackson, 376 S.W. 2d 341 (Tex.. 1964). the Supreme Court hadbefore it the same situation involving conflicts between the general grant of authority to the Parks andWildlife Department, on the one hand, and regulation by specific legislation on the other. Inholding that the specific legislation. controlled, the Supreme Court said:

I’

. . . Itis elementary thatthe Legislature may withdraw from an administrative **agency** ithas created any or all,of the powers delegated, for authority to give includes authority to take away. Moreover, delegated powers may be withdrawn bypreemption as well as by express declaration. When the Legislature acts with respect to a. particular matter, the administrative agency may not so act with respect to the matter as to nullify the Legislature’s action even thoughthe matter bp within the agency’s general regulatory field. ‘I (376 S.W. 2d at 344) SUMMARY Article 947 of the ‘Penal Code, governing seining for fish. green turtles, loggerheads, terrapin and shrimp, has notbeen superseded by any subsequent legislation. House Bill 833 of the 63rd Legislature (amending Article 978j-1, V. T. P..C. )has not caused the Parks &Wildlife Department to lose its regulatory authority over shrimp in Cameron, Brazoria, Jackson, Jefferson,. Orange, or WiIlacy counties. Nor has it repealed various special acts governing game andfish laws inparticular localities.

Attorney General of Texas

p. 543. - 1

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. .\ The Honorable Clayton T. Garrison, page 5(H-112)

APPROVgD:

1 LARRY F.i YORK, p irst\Assi fant I 

# WL- q DAVID M. KENDALL, Chairman Opinion Committee

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