Untitled Texas Attorney General Opinion ( 1973 )

’.
THE A’JTORNEY GENERAL
OFTEXAS
k$USTIS. TEXAS 7s711
The Honorable Clayton T. Garrison Opinion No. H- 112
Executive Director
Texas Parks & Wildlife Department Re: Statur of Article 947.
John H. Reagan Building Vernon’s Texas Penal
Austin, Texas 78701 Code, and other laws
regulating the harvesting
Dear Mr. Garrison: of shrimp
You have requested our answers to three questions concerning
Articles 947 and 978j, Vernon’s Texas Penal Code, and other statutes
having to do with the harvesting of shrimp. Your first question is:
“Has Article.947, ‘Vernon’s Texas Penal Code
been superseded by the enactment of Texas Shrimp
Conservation Act and the Uniform Wildlife Regulatory
Act and other more recent legislation, and if so; to
what extent 7 ”
Since you posed that question, House Bill 833 of the 63rd Legislature
(Acts 1973. 63rd Leg., p. 515, ch. 220) has become effective. Its § 2
amended Article 947 and, by amending it, reaffirmed its validity as pre-
sently effective legislation. We therefore answer your first question that
Article 947 has not been superseded by the enactment of any other legislation.
However, as amended it now applies only to Harris, Galveston, Chambers
and Victoria counties.
Your second question asks:
“Does the Parks and Wildlife Department lose
regulatory authority over shrimp in Cameron, Brazoria,
Jackson, Jefferson, Orange and Willacy counties follow-
ing the effective date of House Bill 833, Acts of the 63rd
Legislature, 19731”
p. 540
The Honorable Clayton T. Garrison, page 2 (H-112)
House Bill 833, 0 1. amended Article 9783, V. T. P. C., by adding
a new 0 lA to provide:
“Sec. lA. (a) Except as provided in Subsection
(b) of this section, this Act applies to all coastal~waters
in this state with respect to fish, aquatic life, and
marine animals.
“(b) Subsection (a) of this section does not apply
to shrimp and oysters or to Harris, Galveston, Cham-
bers, and Victoria Counties. ”
The purpose of House Bill 833, as stated in its caption. was to
include under the Uniform Wildlife Regulatory Act all coastal waters~
except Harris, Galveston, Chambers and Victoria counties and to make
the provisions of Article 978j-1, V. T. P. C., applicable to all coastal
waters with respect to fish, aquatic life, and marine animals. However,
the caption specifically states that the Act provides exceptions for shrimp
and oysters.
We ,do not read the amendatory language of § 1 of House Bill 833 as
providing that the Uniform Wildlife Regulatory Act, as a whole, should
not apply to shrimp or ,oysters. Rather we read it as only applying that
exception to coastal waters which had not theretofore been covered but
which were added by g 1. It is our purpose in construing the Act to dete:-
mine the intent of the Legislature. Any other interpretation than the on+
we have given immediately above would, we believe, distort the intent of
the Legislature. Had the Legislature intended to remove entirely the autho-
rity of the Department to regulate shrimp and oysters in all waters subject
to the Uniform Wildlife Regulatory Act, it could have easily done so in a frvr
less circuitous manner.
It is our opinion, therefore, in answer to your second question, that
in all of the counties you have named, shrimp remain subject to the reguls-
tion of the Parks and Wildlife Department through the authority conferred by
the Uniform Widlife Regulatory Act. Article 978j-1, if this authority existed
under the Act prior to its amendment by House Bill 833. However, the Actt
p. 541
The Honorable Clayton T. Garrison, page 3 (H-112)
in $ 3(c) (1) provides that in four counties, including Jefferson and Orange,
shrimp are not included in the term “wildlife resources. ” The Depart-
ment, therefore, did not have regulatory authority under the Uniform
Wildlife Regulatory Act over shrimp in those counties before or after the
effective date of House Bill 833.
However, Acts 1963, 58th Leg., ch. 339, p. 894, applying to Orange
and Jefferson counties, authorizes the Game and FishCommission to regu-
late the taking of shrimp from coastal waters of those counties. The rights
are the same as those conferred upon the Department by § 2 of Article 4075b,
V. T. C S., the Texas Shrimp Conservation Act. Therefore, with the note
that Orange and Jefferson counties are regulated under the Shrimp Act
rather than the Uniform Wildlife Regulatory Act, it is our opinion that House
Bill 833 did not deprive the Parks and Wildlife Department of regulatory
authority over shrimp in Cameron, Braaoria, Jackson, Jefferson, Orange,
and Willacy counties.
Your third question asks whether House Bill 833 repeals, amends
or modifies the authority granted the Department under various statutes
including Articles 9783 and 978j-1, $13~. V. T. P. C., as amended in 1963.
Article 978j of the Penal Code is a compilation of special laws apply-
ing to various counties under the title: “Local Game and Fish Laws”. Acts
1955, 54th Leg., ch. 80, p. 363, is one such law applying to the waters of
the Laguna Madre lying within the counties of Cameron, Kenedy and Willacy,
and making it unlawful to take from those waters any speckled trout less than
12 inches in length or any flounder less than 12 inches in length or any redfish
less than 4 inches in length. We seenothing in House Bill 833 that would
repeal or modify that Act. In fact it was especially saved from repeal by
§ 15 of Article 978j-1.
Section 13~ of Article 978j-1, V. T. P. C. , provides that, notwithstanding
the powers vested in the Parks and Wildlife Commission, there is established
in Aransas County a zone in which it shall be unlawful to use a net or seine.
Again we see nothing in House Bill 833 (extending the effect of Article
978j-1 to all coastal waters) inconsistent with this provision and it is our
opinion that it is not repealed by House Bill 833.
p. 542
The Honorable Clayton T. Garrison, page 4 (H-112)
Finally, Chapters 339 of the Acts of the 58th Legislature, like Chapter
80 of the Acts of the 54th Legislature, supra, is a special law, codified
under Article 978j of Vernon’s Texas Penal Code and applicable to Orange
and Jefferson counties and the coastal waters thereof. We do not believe
it was the intention of the Legislature, in adopting House Bill 833, to over-
rule these specific provisions applicable to the two counties.
In State v. Jackson, 376 S.W.2d 341 (Tex.. 1964). the Supreme Court
had before it the same situation involving conflicts between the general grant
of authority to the Parks and Wildlife Department, on the one hand, and
regulation by specific legislation on the other. In holding that the specific
legislation. controlled, the Supreme Court said:
I’. . . It is elementary that the Legislature may with-
draw from an administrative agency it has created any
or all,of the powers delegated, for authority to give
includes authority to take away. Moreover, delegated
powers may be withdrawn by preemption as well as by
express declaration. When the Legislature acts with
respect to a. particular matter, the administrative agency
may not so act with respect to the matter as to nullify the
Legislature’s action even though the matter bp within the
agency’s general regulatory field. ‘I (376 S. W. 2d at 344)
SUMMARY
Article 947 of the ‘Penal Code, governing seining
for fish. green turtles, loggerheads, terrapin and
shrimp, has not been superseded by any subsequent
legislation. House Bill 833 of the 63rd Legislature
(amending Article 978j-1, V. T. P..C. ) has not caused
the Parks & Wildlife Department to lose its regulatory
authority over shrimp in Cameron, Brazoria, Jackson,
Jefferson,. Orange, or WiIlacy counties. Nor has it
repealed various special acts governing game and fish
laws in particular localities.
Attorney General of Texas
p. 543
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The Honorable Clayton T. Garrison, page 5(H-112)
APPROVgD:
1
I
LARRY F.i YORK, p irst\Assi fant
WL-
DAVID M. KENDALL,
q
Chairman
Opinion Committee
p. 544