Untitled Texas Attorney General Opinion ( 1984 )

.
The Attorney General of Texas
Au:xt 30, 1984
JIM MATTOX
Attorney General
Supreme Court Building Mr. Charles D. Travis Opinion No. ``-196
P. 0 Box 12546 Executive Director
A!rs!in. TX. 78711. 25.:6 Texas Parks and WildLife Department Re: Construction of section
51214754!501 4200 Smith School Ksad 66.216 of the Parks and Wild-
Telex 9101674-1367
Telecopier 512/475-0266
Austin, Texas 787$1 life Code prohibiting posses-
sion of a fish having the head
or tail removed
714 Jackson. Suite 700
Dallas, TX. 75202.4506
Dear Mr. Travis:
2141742-6944
You have requested a" interpretation of section 66.216(a) of the
4624 Alberta Ave., Suite 160 Texas Parks and WillLife Code:
El Paso, TX. 79905-2793
9151533.3464 566.216. ?ossession of Headed or Tailed Fish
,-
0, Texas. Suite 700
(a) N3 person may possess a finfish of any
Houston, TX. 77002-3111 species tn'cenfrom coastal water, except broadbill
7131223-5666 swordfish, shark, and king mackerel, that has the
head or tail removed unless the fish has been
finally ~Zcocessed and delivered to the final
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
destinatixx or to a certified wholesale or retail
6061747-5236 dealer.
Your question has reference to a recreational fishing club which
4309 N. Tenth, Suite B
has set up a camp (1~.
one of the spoil islands located along the land
McAllen, TX. 76501.1665
5121662-4547
cut between Baffin I&y and the lower Laguna Madre Bay System. This
spoil island is one of a group of such islands which were created by
dredging operations for the channel that bisects the waterway between
200 Main Plaza. Suite 400 the mainland and tlw barrier islands to the east. The fishing club
San Antonio, TX. 762052797
has received a peruit from the General Land Office under which it
5121225-4191
leases a state-owned cabin on the spoil island. The lease specifies
that the cabin js to be used for recreational purposes only. This
An Equal Opportunity/ cabin serves ss a I-tsidenceduring the club's fishing expeditions to
Affirmative Action Employer the land cut. The ':lubfillets fresh fish in the kitchen of its spoil
island cabin. I" a524 F. Supp. 1069 (S.D Tex. 1981). Because, outside of the
laboratory, ft is difficult t) identify a fish once its head or tail
has been removed, inspectors wst be able to view the fish before it
has been filleted. Effectiw policing of fishermen is, therefore,
crucial to the proper enforcement of these possession limits.
Section 66.216(a) allow fishermen to possess filleted fish only
if either of the following is true: (1) the filleted fish have been
delivered to a final destination, or (2) the filleted fish are
delivered to a certified (lixnsed) wholesale or retail fish dealer.
It is our opinfon that neitlwr of these is true in the case of the
spoil island fishing club.
We first conclude that a spoil island is not a final destination.
Our research has not found any court opinions nor any attorney general
opinions which construe the t.crm"fins1 destination" as it appears in
section 66.216(a). As allowwl by the Code Construction Act, we base
our interpretation of this tern on the Parks and Wildlife Department's
owu construction. V.T.C.S. srt. 5429b-2, §3.03(6). The Parks and
Wildlife Commission has adopted the following definition of a final
destination ss that term is used in section 66.216:
a place either on tilemainland, a peninsula, or a
barrier island where a fisherman finally lands his
catch and does not further transport his fJsh by
hoat. Ffnal destirsfi~ondoes not include jetties
or piers.
7 Tex. Rep,.952 (1982) (to be codified in 31 T.A.C. §57.391).
t,longwith the Publication of the final destination definition in
the Texas Register, the Park; and Wildlife Depnrtment explained that
!~,I:r
definition was intended to allcw
the coasts].fishern,anJ ulethodof preservation to
protect hj~scatch from spoilage while transporting
thr fish to his permsnent residence.
' Te:i. Reg. 452 (1982). TFc definition achieves this goal in the
frzllcwinguay. To prevent spoilage, it is crucial that a fisterman
Picperly refrigerate the fish he has caught. In general, fishermen
store their fish jn portable i[.c chests. They then transport their
fish in these portable 5~ceclwsts bxk to their permanent residences.
Pt:cause these ice chests arc relatively small and because they are
u:,u;illyquit& bwvy, effjriert use of the space within the ice chests
i9 ess~ltlal. The "final destination" deftnition was enacted to al!ow
.> iishermsn to remove the head s and tails from the fish as soon as the
L;?t reschcs land. Because the filleted fish, with heads and tails
p. 861
Mr. Charles D. Travis - Page 3 (JM-196)
removed, will take up much 1.2;sspace in the ice chests, a fisherman
can preserve more of his catch, and fewer fish will be wasted. The
"final destination" excepticn to the article 66.216(a) prohibition
against the possession of headless or tailless fish distinguishes the
"final destination" -- the place at which a fisherman finally lands
the fish -- from the "ultimE,tedestination" -- the place to which a
fisherman ultimately transports the fish. The definition allows a
fisherman to fillet his catch at the final destination before
transporting them to the ultimate destination.
In addition to helping fishermen to preserve the fish that they
catch, the final destjnatiol definition also helps in the general
enforcement of article 66.2101'a). The final destination at which the
fisherman finally lands his catch, whether at the mainland, a
peninsula or a barrier islancl:will be subject to periodic inspection
hy the Parks and Wildlife Department. The definition specifically
includes only points from wh::ch a fisherman must no longer "transport
his fish by boat." The Park:;and Wildlife Department informs us that
this language was intended to totally prohibit fishermen from
possessing filleted fish on a boat.
Fishing boats pose great enforcement problems for inspectors. If
an inspector were to stop a fishing boat and discover filleted fish,
.-
it would be difficult for him to determine either that the filleted
fish were redfish or that the fisherman had exceeded his daily catch
limit. A fisherman could ear:ilydeny that the fish were redfish, a
position difficult to refute outside the laboratory. or he could
assert that he had accumulared the fish over several days, never
having exceeded the limit on any one day. These potential problems
are avoided by the final destjnation definition.
We note that the usual wily to remc~vefish from a spoil island is
by boat. Because the fir,el destination definition specifically
prohibits the possession of filleted fish at any place from which they
will be further transported by boat, wc conclude that a spoil island
cannot be a final destination Further, we believe that allowing the
possession of filleted fish cln a spoil island would be inconsistent
with the intent behind the final destination definition. Because
spoil islands are surrounded by water and, thus, difficult to police
effectively, the enforcement problems with respect to spoil islands
will be similar to those witI!respect to boats. It is, therefore, our
opinion that the legislature i~ntendedthat a spoil island should be
treated no differently from ,xboat with respect to article 66.216(a).
Neither a boat nor a spoil irilandcan be a final destination.
Section 66.216(a) also c:,ceptsfrom its strict prohibition on the
possession of filleted fish any person who is either a certified
wholesale or retail fish dea.er. You ask whether the cl.ubwould be
protected from the force of section 66.216(a) if it were to obtain a
retail fish dealer's license. We conclude that it would not.
p. 862
MI. Charles D. Travis - Page 4
Section 47.001 defines a retail fish dealer:
(4) 'Retail fj.L,h dealer' means a person
engaged in the bus:.rless
of buying for the purpose
of sale to a consumer fresh or frozen edible
aquatic products.
As we have pointed out earl::c:r, the club's permit to use the spoil
island specifies that the isL.andcamp shall be used for recreational
purposes only. Therefore, the!club may not obtain a retail dealer's
license for its camp on the spoil island itself. However, you are
concerned about the followire situation. The club about which you
inquire maintains a facilit:? in Corpus Chkisti, and the club has
received a retail fish dealelr'slicense in that city. Because it is
the club itself and not thcz location which is licensed, the club
argues that its retail license protects its members while on the spoil
island.
The club bases its arguaent on the language of sectiou 47.001 of
the Parks and Wildlife Code which defines place of business:
(9) 'Place of business' means the place where
orders for aquatic products are received or where
aquatic products are sold, including a vehicle if
aquatic products art sold from the vehicle, but
does not include t, public cold-storage vault,
temporary receiving station, or vehicle from whkh
no orders are taker-or no shipments or deliveries
are made other thar to the place of business of a
Mcensee in this state. (Emphasis added).
The club contends that the spoil island site is analogous to a
"receiving station" and thus is not a "place of business," and,
therefore, the club's Corpus Zristi retail fish dealer's license will
allow club members to possess filleted fish et their spoil island
camp. We disagree.
This office discussed these temporary receivj.ng stations in
Attorney General Opinion O-1596 (1939). The opinion concluded that
these temporary receiving sta:ions must all be considered places of
busjness and thus separately licensed. However, in 1973, section
47.001 of the Parks and Wildlife Code was amended to exempt receivj.ng
stations from the license requirements. Acts 1973, 63rd Leg., ch.
125, at 263. Cealers now pay ,ne license fee which covers the central
place of business and all mtside receiving stations. The club
believes that because only thf:central place of business needs to be
Ucensed and the receiving !:t:ation
is covered by that license, the
club's Corpus Christi license should protect the club members from
violations of article 66.216f;i)while they are on the spoil island.
It is our opinion, however, that the instant case of a recreational
p. 863
.
Mr. Charles D. Travis - Page 5 (JM-196)
fishing club's attempt to cjrcumvent a statute must be distinguished
from a wholesale or retail business's interest in avoiding the payment
of multiple license fees. We note that the receiving stations
referred to in Attorney Gene::;11
Opinion O-1596 (1939) were all on the
mainland. We assume that the wholesale and retail dealer exception in
section 66.216(a) was directc:d at these mainland receiving stations
which were also the subject of the amendment to the "place of
business" definition in sectjcr 47.001.
Viewing recefving stations as mainlan~d facilities of an
established business for prcfit, we conclude that the legislature
intended that receiving starions could be exempted from section
66.216(a) because they wou:~! be subject to periodic inspections.
Although the legislature ha: declared that these receiving stations
are not "places of busines::!" they do sometimes temporarily house
filleted fish. We assume rhst the retail and whclesale dealer
exception was meant to prote:t them. In our opinion, the disjunct
"final destination or . . . \folesale or retail dealer" applies to the
temporary receiving stations rhich are not "ultimate" destinations, in
the sense that the filleted fish are later transported somewhere else,
but which are subject to so-~ control - via their association with an
established commercial fish ttsiness.
No such guarantees are Ilresent in the case of the recreational
club about which you inquirr. It is our opinion that the wholesale
and retail dealer exception ':o the prohibition in section 66.216(a)
applies only to the mainlEnd receiving stations of established
businesses because these rect,lvingstations, unlike spoil islands, are
subject to periodic inspectic#rby fish and game wardens.
Moreover, it does not appear to us that the club qualifies as a
retail fish dealer within th,zstatute definition of that term. Texas
Parks and Wildlife Code, slxtion 47.001(4) defines a "retail fish
dealer" as
a person engaged ir;the business of buying for the
purpose of sale tc a consumer fresh or frozen
edible aquatic proc!t,cts.
The facts as given to us ini,icatethat the club catches fish for its
own consumption, that it is n,t engaged Iana commercial business, and
that it does not buy fish fcmrthe purpose of sale. However, we need
not pass judgment on the propriety of this recreational club's
obtaining a retail fish dealcl,'slicense in the city of Corpus Christi
because we conclude that its having this license will not serve to
allow the club to possess hxdless or tailless finfish at its spoil
island club.
p. 864
Mr. Charles D. Travl~s- Page ,j (J-l-196)
.;LJMMARY
Article 66.216(~: of the Parks and Wildlife
Code prohibits the possession of filleted fish on
a spoil island.
Jq;&
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genecll
DAVID R. RICHARDS
Executive Assistant Attorney :zneral
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
DeVld Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 865