Untitled Texas Attorney General Opinion ( 1974 )

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THE ATTORNEY GENERAJ~
OF !lYJcxAs
AURTIN. T-s 78711
January 10, 1974
The Honorable Clayton T. Garrison Opinion No. H- 206
Executive Director
Texas Parks & Wildlife Department Re: Authority of the Parks and
John H. Reagan Building Wildlife Commission to
Austin, Texas 78701 prohibit seining in the Gulf
of Mexico more than one
Dear Mr. Garrison: mile from a pass
You have’advised us:
“Due to the recent flood conditions in the San Jacinto
and Trinity River Basins, an unusually large amount of
fresh water is entering the greater Galveston Bay complex.
This has resulted in zero salinity in much of the Bay area.
Many of the principal salt water game fish species are not
able to adapt to this condition and have migrated into the
Gulf through Bolivar Pass separating Bolivar Peninsula
from Galveston Island. These fish tend to congregate in
large numbers in a pocket eastward from the North Jetty.
This permits an abnormal harvest of these fish through
the use of seines and nets. By authority of Article 4045
Vernon’s Civil Statutes and Article 941 Vernon!s Penal
Code, an area one mile either side of and extending into
the Gulf of Mexico adjacent to and including Bolivar Pass
has been closed to seines and nets except for minnow seines
. . . . (I
You then ask:
“Does the Parks and Wildlife Department have
authority to close a portion of the Gulf of Mexico adjacent
to Bolivar Pass in Galveston County to seines and nets in
addition to that portion now closed by Departmental Order? ”
p. 966
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The Honorable Clayton T. Garrison, page 2 (H-206)
Article 4045, Vernon’s Texas Civil Statutes, provides in part:
“It shall be unlawful for any person at any time to
place, to set or drag any seine or net, or to carry on,
over or into the waters hereinafter referred to, or to
have in his possession or to carry such seine or net by
vehicle or in any other way to any point or place within
one mile of such waters, or to use any other device or
method for taking fish, other than the ordinary pole and
line or cast-net or minnow-seine of not more than twenty
feet in length for catching bait, within the waters described
in Article 941 of the Penal Code. . . . The Commissioner,
when he has reason to believe it is best for the protection
and increase of fish life, or to prevent their destruction in
the bays or parts thereof, or such tidal water, is hereby
authorized to close such waters against fishing with any
seine, net, spear, gig, light or other devices, except
with ahook and line or cast-net or minnow-seine of not
more than twenty feet in length. Before so closing any
such waters, the Commissioner shall give notice of his
intention to do so at least two weeks prior to such closing,
giving the reason why action is deemed necessary, and
which notice shall contain a designation of the area which
it is proposed to close, a statement that after the date indi-
cated in such notice it shall be unlawful to drag a seine or
set a net or use a gig or spear and light in taking fish from
such waters for the period which the Commissioner in said
notice shall declare same to be closed. . . . ” (emphasis
added)
Article 941, Vernon’s Penal Code - Auxiliary Laws (formerly Vernon’s
Texas Penal Code), provides in part:
“It shallbe unlawful for any person to place, set, use
or drag any seine, net or other device for catching fish
and shrimp other than the ordinary pole and line, casting
rod and reel, artificial bait, trot line, set line, or cast net
p. 967
The Honorable Clayton T. Garrison, page 3 (H-206)
or minnow seine of not more than twenty feet in length
for catching bait, or have in his possession any seine,
net or trawl without a permit issued by the Game, Fish
and Oyster Commissioners or by his authorized deputy
in or on any of the waters of any of the bays, streams,
bayous or canals of . . . Galveston Count[y], . . . or
in or on the waters within one mile of the passes herein
mentioned, connecting the bays and tidal waters of this
State with the Gulf of Mexico or in or on or within a mile
of any other such passes, or within the waters of any
pass, stream or canal leading from one body of Texas
bay or coastal waters into another body of such waters:
. . . . ” (emphasis added)
In the absence of conflicting federal legislation, it is within the police
power of the State to promulgate regulations to protect its marine life re-
sources within its territorial waters, Askew v. American Waterways Opera-
tors, Inc., 411 U.S. 325 (1973), which in the case of Texas extend three
marine leagues seaward, Submerged Lands Act, 43 U.S. C. $1301 et. ;
U.S. v. Louisiana, 363 U.S. 1 (1960); Employers Mutual Casualty Co. v.
Samuels, 407 S.W.2d 839 (Tex. Civ.App., San Antonio, writ ref’d. n. r. e.);
Attorney Gene ml Opinion M-87 (1967). Nonetheless, the Parks and Wildlife
Department possesses only such powers as are delegated to it expressly
and impliedly by the Legislature. State v. Jackson, 376 S.W.2d 341 (Tex.
1964).
The authority given
the Commission to regulate seining and netting
under Article 4045, V. T. C. S., is limited to those areas described in Article
941 of the Penal Code - Auxiliary Laws. Thus, Article 4045 confers no
authority to regulate seining more than a mile seaward of a pass.
The Uniform Wildlife Regulatory Act, Article 978j-1, Vernon’s Texas
Penal Code - Auxiliary Laws, gives the Parks and Wildlife Commission
broad regulatory powers; however, the Act does not apply to Galveston County.
(Acts1973, 63rd Leg., ch. 220, p. 515). As the boundary of Galveston County
extends three marine leagues seaward, [Article 1592a, Vernon’s Texas Civil
Statutes; Attorney General Opinion M-87(1967) 1, the Uniform Wildlife Regu-
1atoryAct provides no autho,rity to close an area more than one mile seaward
of Bolivar Pass.
p. 968
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The Honorable Clayton T. Garrison, page 4 (H-206)
The Commission is given general jurisdiction over the marine life of
the State by Article 4026, Vernon’s Texas Civil Statutes, but that jurisdiction
may be exercised only under the authority vested in the Commission by law.
As we have found no statute permitting the prohibition of seining or netting
in the.GuLf of Mexico except within one mile of a pass, it is our opinion that
the Commission may not close an area more than one mile gulfward of Bolivar
Pass.
SUMMARY
The Parks and Wildlife Commission may prohibit the
use of seines and nets in the Gulf of Mexico only in those
areas which are within one mile of a pass connecting bays
and tidal waters with the Gulf of Mexico.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
P. 969