Untitled Texas Attorney General Opinion ( 1952 )

August 28, 1952
Hou. Robert Galloway Opinion No. Q-1516
Diatrlot Attorney
84th Judlolal District Re: Applicability of various
Borger, Texas laws regulating fishing
to the taking of rainbow
Dee Mr. Galloway: trout from a private lake.
In your request for an opinion of this office
you state the following faot situation:
“A resident of Hutahlnson County, Texas,
hereinafter called owner, Is the bvonerof lands
within this County. A few years a@,. the owner
started selling gravel off of his lands and, In
the process of removing the gravel, excavated a
deep pit, whereupon undergroqid vatere oommenoed
to flow Into the pit and form a large body of
water. When the sale of gravel had been oon-
eluded, the owner h&d, within the boundaries of
his own land, a body of water about thirty (30)
acres in area, which body of water is in no~wag
connected with any uatural creek, river or stream,
and is in no way subject to overflow from any
creek, river, or natural strew. The water sup-
ply for the lake Is wholly subterranean and, as
a matter of fact, the owner banked rain waters
away from the lake.
“Sometime ago the owner began experimenting
with rainbow trout and found wat they live very
well in his lake. Later he bought fish eggs from
out of the State, hatched thk eggs himself at
hatcheries erected upon his premises, turned them
into his lake, and noi? has the lake supplied and
stocked with about 400,000 rainbow trout.
"During the year 1951, the owner permitted
fishing upon his premises and in his lake, charg-
ing an admission fee and placing a limit of five
trout for each admisslon.
"This year, 1952, the owner has proposed to
change the charge for fishing upon hi8 land by
Hon. Robert Galloway, page 2 (Q-1516)
charging the fishermen by the pound of fish
caught and removed. His reason for changing
the fishing privilege to the sale-by-pound
method was that during the year 1951 fisher-
men killed numerous fish by throwing back
smaller catches and keeping the five biggest
fish they could catch."
Based upon this fact situation you aek whether
the taking of fish from this private lake is subject to
the laws of the State of Texas, partloularly Articles 93&a,
933&b, 933&z and 933a, Vernon's Penal Code, and Sections
1, 2 and 3 of Article 4032b, Vernon's Civil Statutes.
The articles in question are as follows:
Article 933*a, Q.P.C.:
"From and after the expiration of the
olosed season on rainbow trout as
In Section 1 of this Act Brt. 933~EEall
be unlawful for any person to take, possess,
sell or barter any rainbow trout from any of
the fresh waters of Texas during~the months of
January, February, March, April and Ray of each
year, vhich months shall constitute a closed
season on rainbow trout."
Article 933&b, Q.P.C.:
"It is hereby made unlawful for any
person to take or have in his or her pos-
session any rainbow trout from any of the
fresh waters of Texas, of a less length than
fourteen inches, or to take and have in his
or her possession more th$n five rainbow
trout during any one day.
Article 933$, V.P.C.:
"It Is hereby made unlawful for any
person to sell, barter, or offer for sale
or barter any rainbow trout ttken from any
of the fresh waters of Texas.
Artlale 933a, V.P.C.:
"It shall be unlawful for any person,
firm or corporation, or their agents, to
. ,
Hon. Robert Galloway, page 3 (v-1516)
buy or sell, or offer for sale, or offer to
buy, or have in his or their pos~sesslonfor
sale, or to carry, transport or ship for the
purpose of sale, barter or exchange, any
fresh water crappie or bass within the State
of Texas.
"Any person violating any of the grovi-
sions of this section shall be deeyd guilty
of a misdemeanor, and upon conviction shall
be punished by a fine in any sum not exceed-
ing one hundred dollars, and each sale or
shipment or act In violatioffhereof shall con-
stitute a separate offense.
Article 4032b, V.C.S.:
"Sectlou 1. It shall be unlawful for any
resident of this State to fish in any of the
fresh waters of this State, outside of the
county of his residence and adjacent counties
thereto, without first having procured from
the Game, Fish and Oyster Commission, or one
(1) of its bona fide employees, or a county
clerk or an authorized agent, a resident flsh-
ing,llcense, the fee for which shall be One
Dollar and sixty-five cents ($1.65). Of this
amount, the offiaer issuing aame shall retain
fifteen cents (15$) as his fee for collecting
SalIB. No fee or license of any kind shall be
required of a person for the right to fish in
the county of his residence and counties adja-
cent thereto except as provided in Sec. 3 of
this Act.
"Set(I2 o It shall be unlawful for any
person who is a non-resident of this State, or
any person who is an alien, to fish in the fresh
waters of this State without first having pro-
cured from the Game, Fish and Oyster Commission,
or one of its bona fide employees, or a county
clerk or an authorixed agent, a non-resident
fishing license, the fee for which shall be Five
Dollars and twenty-five cents ($5.25). Of this
amount, the issuing officer shall retain tventy-
five cents (25#) as hla fee for collecting same.
Provided that such non-resident may fish in said
waters under a five-day license, the fee for
which shall be One Dollar and sixty-five cents
($1065), and which shall be valid for only five
.
Hon. Robert Galloway, page 4 (V-1516)
(5) consecutive days, including day of
Issuance, the date of vhlch shall be
stated thereon. The Issuing officer shall
retain fifteen cents (15#) of said amount
as,his collecting fee.
"Set. 3. No person under seventeen
(17) years of age shall be required to
possess any of the licenses provided for
In this Act. iyoresident fishing license
shall be required of a resident citisen of
this State who holds a commercial fishing
license issued in this State. Provided
that all residents of this State over the
age of seventeen (17) years shall hold a
resident fishing license when using artl-
ficlal bait or lure. Provided further
that all residents of this State over the
age of seventeen (17) years shall hold a
resident fishing license when using live
bait outside of the county of his residence."
In Jones v. State, 45 S.W.2d 612 (Tex. Grim. App.
1931 .), It was determined that the game and fish laws of
this State are not Intended to interfere with an owner's
control over fishing In privately owned ponds of the cbarac-
ter which ou describe. In respect thereto, the court said
at page 61%:
"In Corpus Juris, vol. 26, p. 624, citing
many authorities and precedents, the following
is stated: *But the legislature cannot lnter-
fere with the fishing privileges of the ovners
of private ponds having no communication through
which fish are accustomed to pass to other
vaters. 1
"Apparently the game laws of this state
are so framed as to recognize the 1lmFtation
mentioned. Article 951, P.C.1925, reads
E: 'It shall be unlawful for any person
to citch any fish In the fresh waters of this
State, with any seine or net other than mlnnov
seine, not exceeding twenty feet in length, or
to drag any seine, except such specified minnov
seine, or to set any net, in the fresh waters
of this State during the months of March and
April, or to fish with any artificial bait of
any kind in the fresh waters of this State
. .
Hon. Robert Galloway, page 5 (v-1516)
during the months~of Merch and April. Any
person violating any of the provisions of
this Article shall be deemed guilty of a
misdemeanor and shall be upon convlctfon
fined a sum of not less than &went ($20 .oo)
dollar% nor more than one hundred,f$100.00)
dollars. This article shall not amly to
any artificial lake. oond or pool. owned bp:
any nerson, firm, cornoratlon. city or town,
that does not have as its source of water
su~uly a river or creek or Is not subject
to overflow from a river or creek.’
"Articles 931 and 933, upon which the
prosecution Is founded, and article 951, just
quoted, are all parts of the Game Law, and
must be construed together. When so construed,
the exception in article 951, italiclsed above,
apparently would operate to.protect the appel-
lant against a conviction in the present in-
stance. Article,951 apparently legallses the
catching of fish of all klnds in private waters.
The appellant, having le@Uly caught the fish
described in the evidence In private vaters In
which the state had no Interest, oould not be
guilty of an offense by having the fish in his
possesalon. ”
In an opinion on motion for rehearing in the same
case (45 S.W.2d 614) the court stated:
"It seems to the writer that In no clearer
language than that found in articles 925 and 951
could It be expressed that It was not the legis-
lative intent to place restriction on the owners'
control over fishing in privately owned ponds, as
distinguished from fresh water streams and lakes
as defined in article 926 of the Penal Code."
.Therefore? in view of the- basis
. _. .for the
_ Court of
Criminal Appeals' interpretation of tne f18n an6 ame laws
of the State, we feel that Articles 933$a and 933tb, Vernon's
Penal Code, and sections 1, 2 and 3 of Article 4032b, Vernon's
Civil Statutes, do not apply to the taking of fish from the
lake which you have described in your request, and speclfl-
callg that the owner's price-per-pound system of charge is
not necessarily In conflict with Articles 333& and 9338, Qer-
non's Penal Code. This system of charge If applicable solely
to the privilege of fishing is no more than a method by which
. .
Hon. Robert Galloway, page 6 (v-1516)
the owuer~controls fishing in his private lake, and as
seld above, the game and fish laws when construed to-
gether indicate the leglslatlve Intent to,exempt the
ovner's control over fishing in private lakes or ponds
which do not communicate with public waters from the
scope of these laws.
The taking from a privately owned
artificial lake of rainbow trout which
were stocked in the lake from sources
outside the State Is not subject to the
provisions of Articles 93&a., 93,3&band
933&z, Vernon's Penal Code, or Sections
1, 2 and 3 of Article 4032b, Vernon18
Civil Statutes, whare the lake does not
have as its sour04 of water supply a
river or creek and la not subject to
overflov from a river or creek. A fee
charged for the privilege of fishing in
such lake based on the number of pounds
of fish caught Is not a purchase, sale,
barter or exchange, within the meaning of
Articles 933&c and 9338, Vernon's Penal
Code, of the types of fish named therein.
APPROVED: Yours very truly,
Red McDaniel PRICE DANIEL
State Affairs DFvls%on Attorney General
E. Jacobson
Revl4wing Assistant
Milton Richardson
Chap$es D. Mathews Assistant
Firrat; Assistant