The opinion
THEATTORNEY GENERAL
OF TEXAS
Honorable H. D. Dodgen opinion NO. ww-672
Executive Secretary
Game & Fish Commission Re: Questions relating to H.B. No.
Walton State Building 12, Acts of 56th Leg., Reg.
Austin, Texas Session, 1959, known as the
"Texas Shrimp Conservation Act".
Dear Mr. Dodgen:
This opinion is issued in response to correspondence from you re-
questing an opinion of this office answering the eight questions which follow
relating to H. B. No. 12, Acts of 56th Leg., Reg. Session, 1959, known as the
"Texas Shrimp Conservation Act".
Questions which were numbered 1. and 2. in your request have been
redesignated by reversing their order to facilitate the discussion of the
material involved. References in this opinion will be to the questions as
they have been numerically designated in the opinion. :'
Il.B. No. 12, Acts of 56th Leg., Reg. Session, 1959, known as the
"Texas Shrimp Conservation Act", has been published in part No. 4 of Vernon's
Texas Session Law Service, 56th Leg., Reg. Session, Laws 1959, and has been
designated as Chapter 187, appearing on pages 407-418. It further has been
designated for Vernon's Annotated Civil Statutes as Article 4075b and, for
the purpose of brevity, will be referred to as Article 4075b through the re-
mainder of this opinion.
Question No. I: "Must a bay-bait shrimp boat operator hold a bait
dealers license before being entitled to sell bait shrimp to a bait dealer?"
A "Commercial Bay-Bait Shrimp Boat" is defined in Sub-section 3(f)
of Article 4075b as a particular boat or vessel "used for the purpose of
taking or catching, or assisting in taking or catching, shrimp from the in-
side waters of the State of Texas for pay, or for the purpose of sale, bar-
ter or exchange".
Section 5 of the Article requires the owner of a Commercial Bay-
Bait Shrimp Boat to procure a Commercial Bay-Bait Shrimp Boat License before
using the boat for the purpose stated in Sub-section 3(f). This license
costs thirty dollars ($30.00) and is to be issued by the Game and Fish Com-
mission only during the months of January and February and is to expire March
1st of the year following the date of issuance.
Sub-section 6(a) of the Article authorizes a Commercial Bay-Bait
Shrimp Boat operator to take up to two hundred and fifty (250) pounds of
Honorable 8. D. Dodgen, Page 2. (w-672)
heads-on shrimp per boat per calendar day and to "sellthe same for bait in
the manner provided by this Act . . .". And, Sub-section 6(a)(l) further
states that such operator "may sell, during the open season hereof, any
shrimp for bait legally caught within the inside waters".
A,"Bait-Shrimp Dealer" is defined in Sub-section 3(h) of the Article
as a particular person "who operates a shrimp house, plant or other establish-
ment in any coastal county of the State for pay for the purpose of handling
shrimp caught or taken for bait purposes from the coastal waters of this
State for retail or wholesale purposes, either fresh or frozen".
Sub-section 10(a) of the Article requires a person to procure from
the Game and Fish Commission a Bait Shrimp Dealer's License in order "to en-
gage in the business of a Bait-Shrimp Dealer . . .". The fee for the license
is fifty dollars ($50.00), and the license expires August 31st following the
date of issuance.
Sub-section 10(b) states that a Bait Shrimp Dealer's License "shall
include the right to sell, purchase and handle minnows, fish and other forms
of aquatic life for the purpose of sale or resale for fish bait purposes,
within the coastal counties of this State". By these provisions Article
4075b encompasses the activities authorized for a holder of a Bait Dealers'
License under Chapter 29, Acts of 43rd Leg., 1st Called Session, 1933, as
amended, which is listed as Article 934a of Vernon's Annotated Penal Code.
Despite the statement in Sub-section 6(a) of Article 4075b that a
Commercial Bay-Bait Shrimp Boat operator can lawfully sell the shrimp he takes
"in the manner provided by this ActY , other provisions of the Article do not
clearly provide the manner of such sale. Sub-section 3(h) of the Article
does not use terms which seem appropriate to describe a boat operator selling
to a bait dealer the bait shrimp he has caught with the use of the boat.
Also, Sub-section 13(h) of the Article in prescribing penalties for
certain unauthorized acts makes no mention of a boat operator having a Bait
Shrimp Dealer's License himself when selling to a Bait-Shrimp Dealer and, in-
deed, suggests otherwise by its wording which describes only one type of
transaction, '. . . any Bait Shrimp Dealer who knowingly unloads, buys or
handles in any way from an . . . unlicensed Commercial Bay-Bait Shrimp Boat
any shrimp. . . shall be deemed guilty of a misdemeanor . . .".
Attorney General's Opinion WW-584 considered Section 1 of Article
VIII of the Constitution of Texas, which provides that persons engaged in
agricultural pursuits shall not be required to pay an occupation tax, and
its application to a proposed tax to be levied on peanuts at the time of
their sale by the producer. The opinion concluded that a producer of peanuts
is engaged in agricultural pursuits when he harvests the fruits of his labors
from the sale of his crop since such a sale was a vital and necessary element
of and incident to the occupation of farming.
Although no constitutional provision 16 concerned, similar reasoning
leads to the conclusion that the selling of bait shrimp to a bait dealer by
Honorable II.D. Dodgen, Page 3. (w-672)
a bay-bait shrimp boat operator is a vital and necessary element of and inci-
dent to the occupation of commercial bay-bait shrimping. Based on the word-
ing of these pertinent provisions and this conclusion, the answer to Question
No. 1 is that a bay-bait shrimp boat operator does not need to hold a bait
dealer's license to sell bait shrimp to a bait deal=
Question No. 2: "Is a bay-bait shrimp boat operator required to
hold a bait dealers license if he sells bait shrimp, caught with the use of
said boat, from the boat to fishermen in retail trade?"
A different situation than that just discussed exists when a bay-
bait shrimp boat operator sells bait shrimp, caught with the use of his boat,
from the boat to fishermen in retail trade.
Considering the various existing means of disposing of the take of
shrimp of the bay-bait shrimp boat operator, such operator's position in the
shrimp industry undergoes a subtile, yet distinct, change when he ceases
selling his take of shrimp to a bait dealer, who would sell the bait shrimp
to fishermen in the retail trade and, instead, makes the retail sale himself.
This altered nature of the operation appears to be embraced by the
definition of a "Bait-Shrimp Dealer" provided by Sub-section 3(h) of Article
k075b. A boat capable of movement, as well as a permanently located structure,
could be within the term "other establishment" used in Sub-section 3(h), since
an earlier commercial fishing regulatory act, listed as Article 934a of
Vernon's Annotated Penal Code, included as a "place of business" a vehicle
from which aquatic products were sold.
Sub-section 10(a) of the Article requires "a Bait Shrimp Dealer's
License for each bait stand or place of business maintained by such person".
In Attorney General's Opinion O-3794,one of the announced conclusions was
that "a 'place of business' is a place where any portion of the business of
a dealer is conducted". Similar reasoning indicates that when bait shrimp
are sold from a boat'to fishermen in retail trade, the boat becomes a bait
dealer's place of business requiring a license as such.
Further substantiating this conclusion is the variance in the res-
pective license fees required of the Bait Shrimp Dealer, $50.00, and the Com-
mercial Bay-Bait Shrimp Boat operator, $30.00. There does not appear to be
any reasonable basis for thinking that the Legislature would authorize such
a boat operator to compete for the same retail trade with a bait dealer who
has had to pay a two-thirds greater fee to engage in the business.
However, it should further be noted that Sub-section 10(a) only re-
quires a Bait Shrimp Dealer's License if a person is "to engage in the busi-
ness". Attorney General's Opinion O-4414, which concerned the need for a
wholesale fish dealer's license, discussed engaging in a business as follows:
"The term 'engaged in the business' does not mean
the performance of a single or isolated business trans-
Honorable H. D. Dodgen, Page 4. (w-672)
action, but strongly suggests and carries the idea of
conducting, prosecuting and continuing business by per-
forming progressively .... acts within the statutory
definition. ... the single transaction of a shipment
or sale .... would be insufficient ...". (Cases cited.)
Based upon these factors, the answer to Question No. 2 is that a
bay-bait shrimp boat operator s required to hold a bait dealers license if
he engages in the business of selling bait shrimp, caught with the use of
his boat, from such boat to fishermen in retail trade.
Question No. 3: "May a bait dealer dehead and hold in a fresh or
frozen state, for sale as fish bait, shrimp that were taken for bait purposes
and which are qualified by size for bait purposes only?"
Sub-section 6(c)(4) of the Article states that the quantity of
bait shrimp possessed by any bona fide licensed Bait Shrimp Dealer for use
as bait only "shall not exceed the amount that may be legally possessed as
herein provided". Sub-section 7(b) includes a provision that "It shall be
unlawful for any person, at any time, to possess . . . shrimp caught in any
of the outside waters of this State during such closed season for said out-
side waters".
Sub-section 8(a) of the Article states as follows:
"Salt water shrimp in their fresh state, legally
taken in either the inside waters or in the outside
waters of this State during the open season thereof,
may be had in possession for a period of five (5) days
after the end of such open season, but not thereafter
except by a bona fide licensed bait dealer or sports
fishermen as otherwise provided herein". (Emphasis
added.)
Section 11 of the Article, which provides for the taking by a per-
son of bait shrimp for his personal use and for a Sports Bait-Shrimp Trawl
License, states that ". . . it shall be unlawful for any person taking or
catching, or attempting to take or catch, shrimp for his own use, under the
provisions of this Act, to have within his possession more than two (2) quarts
of shrimp per person, either fresh shrimp with heads on, or frozen shrimp, or
both, to be used for bait purposes only, but not otherwise".
Other provisions regulate only taking or catching, not possessing
shrimp, or the size of shrimp possessed, not the quantity. Thus, despite
the reference in Sub-section 6(c)(4) to "possessed as herein provided", there
is no limitation provided on the quantity of bait shrimp which can be held in
the possession of a licensed bait dealer.
Nor is any distinction drawn in the provisions of the Article be-
tween fresh or frozen shrimp, eitherwith heads on or headed, which would ef-
Honorable H. D. Dodgen, Page 5. (w-672)
feet the possession of such shrimp by a licensed bait dealer. The only dis-
tinction made between fresh and frozen shrimp, in Sub-section %(a), is not
applicable to licensed bait dealers, who are specifically excepted from its
provisions.
The situation described by Question No. 3 states that the shrimp
involved were taken for bait purposes and are qualified by size for bait
purposes only, and there are no additional provisions in the Article which ap-
pear to regulate manner of possession or subject matter of such possession.
Therefore, as these are the only pertinent provisions, the answer
to Question No. 3 is that a bait dealer x head and hold in a fresh or frozen
state, for sale as fish bait, shrimp that were taken for bait purposes and
which are qualified by size for bait purposes only.
Question No. 4: "In the event that an amount of bait shrimp in ex-
cess of the daily limit of 250 pounds is taken, may the State seize and hold
and dispose of the shrimp in excess of the daily catch limit?"
Section 1 of Article 4075b states that it is ". . . the public po-
licy of this State that the shrimp resources of the State of Texas be con-
served and protected from depletion and waste in order that the people of
Texas and their posterity may enjoy the most reasonable and equitable privi-
leges in the ownership and taking of such shrimp resources . . ." (Emphasis
added).
Article 7
of Section 1 of Chapter 178, Acts of 39th Leg., 1925, de-
signated as Article 4026, Vernon's Annotated Civil Statutes, states in part
as follows:
"All of the . . . bays and inlets in this State, and
all that part of the Gulf of Mexico within the juris-
diction of this State, together with their beds and bot-
toms, and tillof the products thereof, shall continue and
remain the property of the State of Texas . . .".
Article 4026 also provides for the Game and Fish Commission to have
jurisdiction over and control of the taking and conservation of shrimp in
accordance with and by the authority vested in it by the laws of the State.
In Sterrett v. Gibson, Civ. App., 168 S.W. 16,the Court, in con-
sidering statutory provisions now included in Article 4026 and quoted above,
stated in part as follows:
"This is merely a declaration of the sovereignty that
abides in every state so far as the fish and game within
its borders are concerned . . . The citizen has no vested
right in game and fish, but the state owns the game and the
tide waters and the fish therein, as well as the beds of
all tide waters". (Cases cited.)
Honorable H. D. Dodgen, Page 6. (w-672)
In Greer v. Connecticut, 161 U.S. 519, 16 S. Ct. 600, 40 L. Ed.
793, the United States Suoreme Court upheld a state law which prohibited the
out-of-state transportation of game kiiled within the state, despite asser-
tions that the law was contrary to provisions of the commerce clause of the
Federal Constitution. The decision states that there is a "fundamental
distinction between the qualified ownership in game and the perfect nature
of ownership in other property" and the state has the consequent power "to
follow such property into whatever hands it might pass, with the conditions
and restrictions deemed necessary for the public interest".
Greer v. Connecticut also quotes with approval from State v. Rodman,
5% Minn. 393, 59 N.W. 1098, in part as follows:
II
. [the State] may adopt any reasonable regu-
. .
lations, not only as to time and manner in which such
game may be taken and killed, but also imposing limi-
tations upon the right of property in such game after
it has been reduced to possession, because he who
takes or kills game had no previous right to property
in it, and, when he acquires such right by reducing
it to possession, he does so subject to such conditions
and limitations as the legislature has seen fit to im-
pose".
The Greer v. Connecticut decision followed the reasoning of the
United States Supreme Court in McCreary v. Virginia, 94 U.S. 391, 24 L. Ed.
248, and subsequent limiting of state ownership and regulation of fish and
game has occurred only when conflicts arose with provisions of the Federal
Constitution, as in Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L.
Ed. 641 (Constitution, laws and treaties of the United States shall be the
supreme law of the land); Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1,
49 S. Ct. 1, 73 L. Ed. 147 (commerce clause); Torso Takahashi v. Fish and Game
Commission, 334 U.S. 410, 6% S. Ct. 1138, 92 L. Ed. 1478, (equal protection
of the laws); and Toomer v. Witsell, 334 U.S. 385, 68 S. Ct. 1156, 92 L. Ed.
1460 (privileges and immunities clause and commerce clause).
The Texas Court of Criminal Appeals in Jones v. State, 119 Cr. R.
126, 45 S.W.2d 612, states that the general rule that "wild animals become
property when removed from their natural liberty and made subjects of man's
dominion" is "only true when such animals are 'legally' removed".
This being true, since the State of Texas has declared the owner-
ship of shrimp as being in the State in Article4026, the ownership of shrimp
would not pass to a person who has illegally taken such shrimp in violation of
provisions of statutes regulating such taking, but would remain with the State.
Sub-section 6(a) of Article 4075b provides that "it shall be lawful
for any Commercial Bay-Bait Shrimp Boat operator to take . . . not to exceed
more than a total of two hundred and fifty pounds (250) of heads-on shrimp of
any size or species per boat per calendar day . . .".
Honorable H. D. Dodgen, Page 7. (W-672)
Sub-section 6(c)(2) states as follows:
"It shall be unlawful for any bona fide licensed
Commercial Bay-Bait Shrimp Boat operator to take or
catch within the coastal waters of this State, at any
time more than two hundred fifty (250) pounds of fresh
heads-on bait shrimp per boat per calendar day".
Other provisions of Article 4075b further regulate the taking of
shrimp, including the designating of closed seasons, and Section 13
of the
Article states that "Any person who shall violate any provision of this Act
shall be deemed guilty of a misdemeanor . . ." and specifies particular acts
which are illegal and particular penalties for acts which violate provisions
of the Article.
Therefore, ownership in bait shrimp taken in excess of the daily
limit of 250 pounds and in shrimp taken during the closed season would remain
with the State, as it would with any shrimp illegally taken. No conflicts
with the provisions of the Federal Constitution appear to exist which would
alter this situation.
That portion of Question No. 4 concerning the State's disposing
of seized shrimp will be considered together with Question No.5, which
relates to the same subject. The remainder of Question No. 4 concerning the
State's seizing and holding shrimp will be considered first.
Shrimp taken illegally in violation of the provisions of Article
4075b are brought within Title 6
of Vernon's Annotated Code of Criminal Pro-
cedure, Articles 304 through 332a, which relates to searches, seizures and
disposition of certain property, by its Article 307, which provides as follows:
"The word 'stolen', as used in this title, is in-
tended to embrace the acquisition oft.property by any
means made -penalby the law of the State".
In a similar situation, Attorney General's Opinion O-7047 held that
Article 307 brought deer illegally acquired within these same articles in
Title 6. This being true, shrimp illegally taken are subject to seizure by
the usual methods available for seizing stolen property, such as by search
warrant and following an arrest.
Illegally taken shrimp which have been seized can, of course, be
held as evidence to be used in any pending case. And, since the ownership of
such illegally taken shrimp remains with the State, the right to hold the
shrimp would not be dependent on the pendency of a case but would exist inde-
pendent of such.
Therefore, a partial answer to Question No. 4 is that the State s
seize and hold bait shrimp taken In excess of the daily catch limit of 250
pounds.
Honorable 8. D. Dodgen, Page 8. (w-672)
Question No. 5: "What disposition should be made of shrimp taken
during the closed season, or otherwise illegally taken?"
Article 326 of the Code of Criminal Procedure concerns the disposi-
tion of property taken under provisions of Title 6 of the Code and refers
to the rules prescribed by the Code for such disposition. Chapter 2 of Title
12 of Vernon's Annotated Code of Criminal Procedure, Articles 933 through 943,
provides for the disposition of stolen property.
That illegally taken shrimp would be within the provisions of this
chapter is evidenced by two of the articles in particular. Article 934 is as
follows:
"Uoon the trial of any criminal action for theft.
I
or for any other illegal acquisition of property which
is by law a penal offense, the court trying the case
shall order the property to be restored to the person
appearing by the proof to be the owner of the same".
(Bnphasis added.)
Article 943states as follows:
"Wach provision of this chapter relating to stolen
property applies as well to property acquired in any
manner which makes the acquisition a penal offense".
Thus, the State as the owner of such illegally taken shrimp can se-
cure the possession of seized shrimp by a court order as provided in Chapter
2 of Title 12. Such a court order could properly specify an agent of the Game
and Fish Commission as the person to receive the shrimp for the State.
The Came and Fish Commission, on once having such seized shrimp in
its possession, would be confronted with the problem of what disposition to
make of the shrimp.
There is no provision made for disposal of seized shrimp in Article
4075b. Yet, assuming that most, if not all, seized shrimp will be in a condi-
tion which precludes their being returned into their habitat, a disposition
which avoids the waste which would result from merely permitting the shrimp to
spoil seems necessary.
Two types of disposition of similar property of the State are found
in other statutes. Just as shrimp are the property of the State, Article @la
of the Penal Code provides, as follows, that:
"All wild animals, wild birds, and wild fowl
within the borders of this State are hereby declared
to be the property of the people of this State",
and Article 923m of the Penal Code provides, as follows, that:
Honorable H. D. Dodgen, Page 9. (~-672)
"All the fur-bearing animals of this State are
hereby declared to be the property of the people of
this State".
Articles 897 and 9239 of the Penal Code provide for the disposition
of property of the State which is among that enumerated in these latter two
articles, when such property has been illegally taken and subsequently re-
covered by the State.
Article 897 provides in part as follows:
"All wild birds, wild fowl, or wild game animals,
or parts thereof, which have been killed, taken in any
way, shipped, held in storage, or found in a public
eating place, contrary to the provisions of this chapter,
be disposed of by order of the Game, Fish and Oyster
Commissioner, or one of his deputies by donating same
to charitable institutions, hospitals, or needy widows
and orphans".
Section 11 of Article 923q, concerning the pelts of fur-bearing ani-
mals, provides in part as follows:
11
. , . if the defendant is found guilty of taking
or possessing such pelt or pelts, In violation of any
provision of this Act, the pelt or pelts so seized as
evidence shall be delivered to the office of the Game,
Fish and Oyster Commission by the Game and Fish Warden,
and the Game, Fish and Oyster Commission is hereby
directed to sell such pelt or pelts".
While there is no specific statutory provision for disposing of
seized shrimp, it may be noted that Sub-section 12(b) of Article 4075b is
quite similar to Section 13 of Article 923s In its provisions for the disposl-
tlon of moneys collected from penalties for violation of the article.
Section 13 of Article 923q states as follows:
"All monies collected from taxes, licenses, fines,
sale of confiscated pelts and penalties for violation
of this Act shall be deposited with the Treasurer of
this State during the first week of each month and
shall be credited to the Special Game Fund and used for
the purposes provided for by law". (Emphasis added.)
Sub-section 12(b) of Article k075b likewise states in part as fol: :
lows:
II
. . . all moneys received from penalties assessed
for violation of this Act, after deduction of fees as-
Honorable H. D. Dodgen, Page 10. (~~-672)
allowed by law, shall be remitted to the Game and Fish
Commission at Austin not later than the 10th day of the
month following the date of collection, and shall be
deposited by said Commission in the State Treasury to
the credit of the Special Game and Fish Fund".
A settled rule of statutory interpretation is that statutes which
deal with the same general subject have the same general purpose or relate
to the same person or thing or class of persons or things, are considered as
in pari materia (in relation to the same matter), although they contain no
reference to one another and were passed at different times or at different
sessions of the Legislature. 39 Texas Jurisprudence 253, Section 135 (author-
ities cited).
Besides recognizing this rule that consideration should be given
to the relationship of various statutes to each other, despite the absence
of legislative instructions to consider such relationship, Texas Courts on
occasion have gone even further and refused to follow the literal meaning
of a provision. In refusing to follow the literal meaning of.an election
law provision and specifying a different meaning which the Court decided was
more in harmony with the intent of the statute as a whole, the Supreme Court
of Texas in Wood v. State, 126 S.W.2d 4, stated in part as foilows:
"It is the settled law that statutes should be con-
strued so as to carry out the Legislative intent, and
when such intent is once ascertained, it should be given
effect, even though the literal meaning of the words
used therein IS not followed".
Also, it is an accepted principle of law that where the Legislature
has given an agency certain responsibilities, the agency by implication may
exercise those incidental powers which are necessary to fulfill such responsi-
bilities. See 39 Texas Jurisprudence 186, Section 99 (authorities cited).
Since the only alternative in the absence of additional legislation
is to permit the wasting by spoilage of shrimp which the Legislature in Sec-
tion 1 of Article 4075b has declared should be conserved and protected from
depletion and waste, the cited rules of statutory construction should be utili-
zed in resolving the problem of disposing of seized shrimp.
Article 4026 declares shrimp to be the property of the State of Texas
and provides for the Game and Fish Commission to have jurisdiction over and
control of the taking and conservation of shrimp in accordance with and by the
authority vested in it by the laws of the State. Under Articles 4026 and 4075b
the Game and Fish Commission has the responsibility of handling property of the
State, that is, illegally taken shrimp which the Commission has recovered.
Also, certain types of disposition have been provided by the Legislature for
similar recovered property of the State, other than shrimp, in Articles 897
and 923s.
Honorable H. D. Dodgen, Page 11. (~-672)
Since (1) these other related statutes can properly be considered
in relation to Article 4075b under the in pari materia r,ule,(2) the Texas
Supreme Court has recognized that statutes should be construed so as to carry
out the Legislative intent, and (3) the Game and Fish Commission is responsi-
ble for handling in a manner which is beneficial to the State those illegally
taken shrimp which it has recovered, the Commission should dispose of such
shrimp in the manner which it considers most appropriate, and the choice of
the manner of disposal would be a matter of internal administration of the
Commission.
Therefore, the answer to the remaining portion of Question No. 4
and to Question No. 5 is that the Came and Fish Commission should dispose of
recovered illegally taken shrimp in the manner which it considers most appro-
priate and the choice of the manner of disposal would be a matter of internal
administration of the Commission.
Question No. 6: "If a person holds a valid Shrimp Trawl License on
the effective date of the act but does not hold a Commercial Fishing Boat
License, may he purchase the Commercial Fishing Boat License and take shrimp
until the Commercial Bay-Bait Shrimp Boat License may be issued?"
Section 5 of Article 4075b states in part as follows:
"It shall be unlawful for any Commercial Bay-Bait
Shrimp Boat to be used for the purpose of taking or
catching, or assisting in taking or catching, shrimp
from the inside waters of Texas, without the owner
thereof having first procured a license, to be known
as a Commercial Bay-Bait Shrimp Boat License, from the
Commission privileging such boat to be so used within
the inside waters of Texas. The fee for a Commercial
Pay-Bait Shrimp Boat License shall be Thirty Dollars
($30) and such License shall be issued for a period of
one (1) year and shall expire March 1st of the year
following the date of issuance, and shall be secured
from and issued by the Commission only during the months
of January and February of each year; . . .".
Sub-section 6(a) of the Article designates the period from August
15th through December 15th as the "open season" for the taking or catching
of shrimp in the inside waters for Commercial Bay-Bait Shrimp Boat operators.
Sub-section 12(a) of the Article states as follows:
"Any valid license pertaining to the inside
waters expiring after the effective date of this Act
and prior to the licensing dates privided for within
this Act are hereby expressly declared to be and re-
main valid licenses until the first day of March, _
A.D. 1960?.
Honorable H. D. Dodgen, Page 12. (~~-672)
Sub-section 13(f) of the Article states as follows:
"It shall be unlawful for any person to operate
in any manner upon any of the coastal waters of this
State without having first secured the proper and
appropriate license required by this Act and any per-
son failing or refusing to secure such license shall
be guilty of a misdemeanor and upon conviction shall
be punished as for a violation of any other provision
of this Act".
The Legislature expressed in Section 16 of Article 4075b an intent
to have the Article effective from the date of its passage and, since its
passage was by the majorities required to effectuate this intent, the Article
became effective May 20, 1959, when approved by the Governor.
The licenses extended by the quoted Sub-section 12(a) of Article
4075b are those provided for in Article 934a of the Penal Code. Section 8 of
Article 93ka states in part as follows:
"All license fees provided for in this Act, are
annual fees and all licenses shall be effective on and
after September 1st of each year and shall be valid
until August 31st of the year following".
Since all licenses under Article 93ka would expire on August 31,
even those purchased only a few days prior to the expiration date, a correla-
tion of Sub-section 12(a) of Article 4075b.and Section 8 of Article 934a es-
tablishes that any license provided for in Article 934a which is issued on or
before August 31, 1959, for the period expiringat the end of August 31, 1959
would be extended by Sub-section 12(a) to March 1, 1960. No specific repeal
of the licensing provisions of Article 934a was attempted by Article 4075b,
except insofar as Sub-section 15(a) eliminated shrimp trawl licenses.
Given literal meanings, Sub-sections 12(a) and 15(a) might authorize
only those possessing shrimp trawl licenses as of May 20, 1959, and a Commer-
cial Fishing Boat License as of August 31, 1959, to engage in commercial
shrimp fishing.
Yet the United States Supreme Court in Truax v. Raich, 239 LJ.S.33,
36 S. Ct. 7, 60 L. Ed. 131, stated in part as follows: '. . the right to
work for a living in the common occupations of the community is of the very
essence of the personal freedom and opportunity that it we.8 the purpose of
the [lkth) Amendment to secure", and proceeded to strike down an Arizona law
which restricted types of persons employed as repugnant to the Federal Con-
stitutional provision for equal protection of the laws.
The United States Supreme Court in Torso Takahashi v. Fish and Game
Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478, again stated this
rule in finding unconstitutional a California law which excluded aliens, who
Honorable If.D. Dodgen, Page 13. (~~-672)
were lawful residents of that state, from making e living by fishing in the
ocean off its shores, while permitting all others to do so.
In view of these Federal rulings, a reasonable construction of
Article kO75b, end yet one which avoids possible constitutional repugnancy,
should se sought. Certainly e construction which denies "the right to work
for e living in the common occupations of the community" should be avoided.
Section 90, 39 Texas Jurisprudence 168, states in pert es follows:
II
. . . the court should first endeavor to ascertain the
legislative intent, from e general view of the whole enect-
mat. Such intent having been ascertained, the court will
then seek to construe the statute so es to give effect to
the purpose of the Legislature, es to the whole end each
materiel pert of the law, even though this may involve a de-
parture from the strict letter of the law es written by the
Legislature". (Authorities cited).
Sections 95 through 98 of Texas Jurisprudence further consider de-
parture from literal meaning in statutory construction end Section 95 et page
182 states in pert es follows:
,I
. . . words orclauses should not be given their
literal meaning when such en interpretation . . . would
lead to palpable absurdity . . . [or-linjustice . . .
if such construction can be reasonably avoided".
(Authorities cited.)
The previously quoted Wood case is en example of the Texas Supreme
Court's application of these rulxo a particular statute.
In view of the need for en interpretation of Article 40751,which
would not be repugnant to the Federal Constitution end one which, also, would
not lead to injustice or absurdity, consideration should be given to the
legislative intent in enacting this Article.
The legislative intent, es evidenced throughout the Article and es
emphasized in Section 1, is only to conserve end protect the shrimp resources
of the State from depletion end waste end to achieve "fair, impartial, end
uniform law enforcement".
Such being the legislative intent, there is no reason revealed why
the Legislature would have intended to preclude from entering commercial
shrimp fishing for most of e year those persons who did not possess shrimp
trawl licenses es of Mey 20, 1959, end a Commercial Fishing Boat License es
of August 31, 1959.
Sub-section 15(e) of Article 4075b, which purported to repeal Sub-
sections 3(5)(e) and 3(5)(b) of Article 93ka providing for shrimp trawl li-
.
Honorable II.D. Dodgen, Page 14. (~~-672)
tenses, must therefore be considered inoperative before March 1, 1960, es
repugnant to the equal protection of the laws provision of the 14th Amend-
ment of the Federal Constitution. To further avoid possible repugnancy to
the Federal Constitution end any absurd or unjust result, Sub-section 12(e)
of Article 4075b should be interpreted as extending to March 1, 1960, all
the licenses provided for in Article 934e, which are involved, including
licenses which the Commission shall issue after September 1, 1959, until the
licenses provided for in Article k075b become available and effective.
Therefore, the answer to Question No. 6 is that e person who holds
a valid Shrimp Trawl License on the effective date of the Act, but who does
not hold a Commercial Fishing Boat License, s purchase a Commercial Fishing
Boat License and take shrimp until the Commercial Bay-Belt Shrimp Boat Li-
cense may be issued.
Question No. 7: "May a wholesale fish dealer purchase, dehesd,
and sell bait shrimp for bait purposes under his Wholesale Fish Dealer Li-
cense?"
Sub-section l(b) of Article 93ke of the Penal Code defines e
"Wholesale Fish Dealer" es follows:
"A 'Wholesale Fish Dealer' is any person engaged
in the business of buying for the purpose of selling,
canning, preserving or processing, or buying for the
purpose of handling for shipments or sale, fish or
oysters or shrimp or other commercial edible aquatic
products, to Retell Fish Dealers, end/or to Hotels,
Restaurants or Cafes end to the Consumer".
Sub-section l(d) of the same Article, which has been replaced in
certain situations by provisions of Article 4075b, defined e "Bait Dealer"
es follows:
"A 'Bait Dealer' is any person engaged in the
business of selling either minnows, fish, shrimp or
other aquatic products, for fish belt".
Section 2 of Article 93ke further provided in pert es follows:
"Before any person in this State shell engage in the
business of a . . . 'Wholesale Fish Dealer', 'Retail
Fish Dealer', 'Bait Dealer', . . . the proper license
provided for in this Act privileging them so to do shall
first be procured by such person from the Game, Fish and
Oyster Commission of Texas or from one of its authorized
agents". (Ehlphasisadded.)
Since Sub-section l(b) by its very terms applies only to ". . .
shrimp or other commercial edible aquatic products . . ." end the business
.
Honorable H. D. Dodgen, Page 15. (~~-672)
of selling aquatic products for fish belt is defined end licensed separately,
handling belt shrimp for bait purposes would not be en activity permitted
under the authority of e Wholesale Fish Dealer License.'
Therefore, the answer to Question No. 7 is that a wholesale fish
dealer may not purchase, dehead, end sell belt shrimp for bait purposes
under his Whaesale Fish Dealer License.
Question No. 8: "If the enswer to question No. 7 is negative, may
e wholesale fish dealer purchase a Belt Shrimp Dealer License end buy, de-
head, end sell shrimp es described in the above question?"
There is no provision in either Article 4075b or Article 934e
which restricts one to a single licensed business. Such being the situation,
several types of business could be engaged in providing each of the proper
licenses had been secured.
Therefore, the answer to Question No. 8 is that a wholesale fish
dealer s purchase e Bait Shrimp Dealer License end buy, dehead, end sell
bait shrimp for belt purposes.
Question No. 1. A bay-belt shrimp boat operator does not need to
hold e bait dealers license to sell belt shrimp to e bait dealer.
Question No. 2. A bay-belt shrimp boat operator is required to
hold a belt dealers license if he engages in the business of selling belt
shrimp, caught with the use of his boat, from such boat to fishermen in re-
tail trade.
Question No. 3. A bait dealer may heed end hold in a fresh or
frozen state, for sale as fish belt, shrimp that were taken for bait purposes
end which are qualified by size for bait purposes only.
Question No. 4. The State may seize end hold belt shrimp taken in
excess of the daily catch limit of 250 pounds.
Question No. 5. The Game end Fish Commission should dispose of re-
covered illegally taken shrimp in the manner which it considers most eppro-
priate and the choice of the manner of disposal would be e matter of internal
administration of the Commission.
Question No. 6. A person who holds a valid Shrimp Trawl License on
the effective date of the Act, but who does not hold a Commercial Fishing Boat
.
Honorable H. D. Dodgen, Page 16. @w-672)
License, may purchase e Commercial Fishing Boat License end take shrimp
until the Commercial Bay-Bait Shrimp Boat License may be issued.
Question No. 7. A wholesale fish dealer may not purchase, dehead,
end sell bait shrimp for bait purposes under his Wholesale Fish Dealer Li-
cense.
Question No. 8. A wholesale fish dealer may purchase e Bait Shrimp
Dealer License and buy, deheed, end sell belt shrimp for bait purposes.
Yours very truly,
WILL WILSON
Attorney General of Texas
CDC:ew
APPROVED:
OPINION COMMITTEE:
Gee. P. Blackburn, Chei-
Jack Goodman
W. 0. Schultz,11
David R. Thomas
John Wildenthel, Jr.
REVIEWED FORTHEATI'ORNEY GENERAL
BY:
Morgan Nesbitt