Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
January 6, 1982
MARK WHITE
Attorney General
Mr. Charles D. Travis Opinion No. MW-421
Supreme Court Building
Executive Director
P. 0. BOX 12546
Austin, TX. 76711 Texas Parks and Wildlife Re: Constitutionality of
5121475-2501 Department section 77.094 of the Parks
Telex 9101674-1367 4200 Smith School Road and Wildlife Code
Telecopier 5121475.0266
Austin, Texas 18744
1607 Main St., Suite 1400 Dear Mr. Travis:
Dallas, TX. 75201
214n42a944 YOU?C 0piItilXl request seeks a determination of the
constitutionality of the exemption of persons holding a valid
4624 Alberta Ave.. Suite 160
bait-shrimp dealer's license and "maintaining a fixed place of
El Paso, TX. 79905 business imediately adjacent to a nursery area, prior to its
9151533-3484 designation as such," from the prohibition of shrimping within such a
designated bay as provided for in section 77.094 of the Texas Parks
and Wildlife Code. Specifically, you ask whether this statute creates
1220 Dallas Ave., Suite 202
a classification which violates the equal protection provisions of
Houston, TX. 77002
713/6500666 either the Texas or United States Constitution.
Section 3 of article I of the Texas Constitution guarantees
806 Broadway, Suite 312 equality of rights to all persons. However this section does not
Lubbock. TX. 79401
forbid classifications of subjects and persons for the purpose of
6061747.5238
regulatory legislation, as long as those classifications meet certain
legal requirements. state ". Richards, 301 S.W.Zd 597 (Tex. 1957);
4309 N. Tenth, Suite S Railroad Commission of Texas V. Miller, 434 S.W.2d 670 (Tex. 1968).
McAllen. TX. 76501
5121662-4547
A state m=Y constit"tionally classify its citizens into
reasonable classes and apply different laws, or its laws differently,
200 Main Plaza, Suite 400 to such classes. Bjorgo V. Bjorgo, 402 S.W.2d 143 (Tex. 1966);
San Antonio, TX. 76205 Railroad Commission of Texas V. Miller, supra.
512/225-4191
A classification is reasonable if it is based on a real and
An Equal Opportunity/ substantial difference which relates to the subject of the particular
Affirmative Action Employel enactment and operates equally on all within the same class. state ".
Richards, supra; Railroad Commission of Texas V. Miller, supra.
Classifications made by the legislature and the imposition of
varying burdens upon different groups are largely within the
discretion of the legislature. The courts will not strike down such a
statute where there is a real difference to justify the separate
treatment undertaken by the legislature. Dancetown, U.S.A., Inc. V.
p. 1434
L .
Mr. Charles D. Travis - Page 2 (MW-421)
State, 439 S.W.2d 333 (Tex. 1969); Calvert V. American International
Television, Inc., 491 S.W.2d 455 (Tex. 1973). The test is whether
there is any basis for the classification which could have seemed
reasonable to the legislature. Railroad Commission of Texas V.
Miller, supra; San Antonio Retail Grocers, Inc. V. Lafferty, 297
S.W.2d 813 (Tex. 1957).
The same type of restrictions on classifications, with certain
variations, apply to such legislative action through the Fourteenth
Amendment to the United States Constitution. In reviewing legislation
under the equal protection clause of the Fourteenth Amendment, the
United States Supreme Court has used two primary standards of review.
Under the first, minimal scrutiny, a law which classifies persons for
different treatment, will be upheld so long as there is some rational
basis for the classification; i.e., so long as the classification is
reasonable, not arbitrary and rests upon some ground of difference
having a fair and substantial relation to the object of the
legislation. Reed v. Reed, 404 U.S. 71 (1971). Under the second
standard, strict scrutiny, the classification will be upheld only if
the governmental body makes a showing of a compelling interest to
justify the classification. Dunn V. Blumstein, 405 U.S. 330 (1972).
Strict review is triggered either by laws which affect certain
"fundamental rights" such as voting or travel, or which provide for
different treatment of persons on the basis of a "Suspect
classification" such as race, alienage and national origin. Unless a
classification triggers strict review, the constitutionality of the
statutory discrimination is presumed and the only requirement is that
the classification challenged be rationally related to legitimate
state interest. City of New Orleans V. Dukes, 427 U.S. 297 (1976).
In a case involving the state of Texas' classification and
treatment of "commercial" fishermen as contrasted with "sport"
fishermen, the Fifth Circuit recently held that since fishing is not a
fundamental right nor the class of commercial fishermen a suspect
class, the Texas statute is not subject to a strict scrutiny and such
disparate treatment need only have a rational basis. Sisk V. Texas
Parks and Wildlife Department, No. 80-1177 (5th Cir. May Ll, 1981).
In view of the purpose of section 77.094, i.e., to exempt certain
bait-shrimp dealers from the general prohibition of shrimping within
nursery areas, there would necessarily have to be a rational and
reasonable basis for this classification or the statute would be
unconstitutional. The determination of the existence or absence of
any grounds for exempting a certain group from a general prohibition
rests within the sound discretion of the legislature. The decision of
the legislature is subject to review by the courts upon allegations
that no reasonable basis exists that would support an exemption for
certain bait-shrimp dealers from the general prohibition of shrimping
within nursery areas. We cannot say as a matter of law that there is
p. 1435
. .
Mr. Charles D. Travis - Page 3 (MW-421)
no rational basis for the classification created by section 77.094 of
the Parks and Wildlife Code.
SUMMARY
Section 77.094, Texas Parks and Wildlife
Code, by creating a "grandfather" exception for
commercial bait-shrimp dealers from a prohibition
on fishing designated nursery areas, does not on
its face contravene the equal protection
guarantees of the Texas and United States
Constitutions; it does not in fact do so if there
exists a reasonable, rational basis for exempting
this class of shrimpers.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Ken Cross
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Tim Brown
Ken Cross
Rick Gilpin
Jim Moellinger
p. 1436