Untitled Texas Attorney General Opinion ( 1970 )

c
May 1, 1970
Honorable Jack McLaughlin
Chairman, Parks and Wildlife Committee
Representative, District 52
House of,Representatives
Austin, Texas Opinion No.M-622
Re: Constitutionality of Arti-
cle 952L-12;'Sec. 2; of
the Penal Code of the State
of Texas as amended by Acts,
1967, 60th Leg., p. 1154,
Dear Representative McLaughlin: ch. 511.
you have,requested an-opinion of this office as to
the constitutionality of Article 952L-12, Sec. 2, Texas
Penal Code as amended. Rephrased, your questions are as
follows:
Does Article 952LA12 of the Penal Code violate
the-Constitution of the State of Texas or the
United States-by providing that the nets of a
person charged with an offense under this act
canbe confiscated and held pending the trial
of,such person?'
Does the,,provisionof the ~actwhich permits
destruction of.~netsupon conviction of an
individual-so using them violate the Consti-
tution of the State of Texas or the United
SthtesT
Section 2 of Article.952L-12 reads,~in part, as follows:
"Set, ~2; When any peace-office of-this
state orany law.-enforcementofffcer~employed
by the Parksand.-WildlifeDepartmentsees'any
selene,strike; net;.,gillnet,``~or-
trammel,net,
or.any devicesthe'use-of-whfch``isprohibited
under Sectionb.of: thisAct:where the use of
such device-.Ps~,prohibfted.-.and-.has
reasonto~
bel$eve and does believe that the same is
being used or possessed in violation of the
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Honorable Jack McLaughlin, Page 2 (M-622 )
provisions of this Acts;it shall be.his duty
to-arrestthe party.,using-or. possessing-such
device and, ~without a'warrant;'&all seize
su~chdevice..as-evi&nce;- Tt shall be. the
drrty-',ofsuch~-peace-~officeror'employee,to
deftver such~device-to.a,court of.competent
jurisdiction of~the~county in-which~it.was
seized; where it shall"be'held-wasevidence
until after-thentrihl;;"I'f~the.'defendant is
found'guilty``of'possessing-or,using- suoh
device unfawfully;``'the~"court~'shall
enter'an
order directing the-~immediate-destruction
offsuch device by zany-state.game'warden or
by'.thesheriff,..br-.constable-
of-'the.
county
where the;case vas tried;"and the-game warden
or-sheriff^-or constable .of-the'.
county.sh~all
inmrediate-ly'destrop..-euch.'device
anLlmake a
sworn report,-to.-the-judge'of'such-court,
showing how; -when;and .wheresaid device
was-destroyed: .When'suoh-device is found
bya peace.~officer-offs-this'state.orany
law.enforcement'officer-employed-by. the
Parks andC~,,Wildlife
Department-without any-
onwin possession-where~its,~useis prohibited,
itshall-be.seized by~'such-officerwithout-
warrant and.-deYivered-to-theappropriate'.'
court inthe ~county,-in,which-it:was found.
Said peace officer-or employeeshall make
affidavitthat-such-device~wasfound'in or
onthe tidal,.,waters-of'-this'state at a~point
where itsuse-was-prohibited,~which said
affidavitshafl'describe such ~deviceland the
court shag1 dfrect~,-the.game.warden or sheriff
orany constable,-of"thecounty to post,a copy
of-~saidafffdavit.~in-thecourthouse of the
county~i-n-which'-~safd~'device
was seized; land
said,officershall~-make,~-hisreturnto~-the-
court showing-wh~en~-and,where.said notice was
posted. ~,,.Thirty-,~(30)~,~.ddys
.after such~notice
is,posted;-the..coart;:-either.intermetime
or.fn vacation;~shallenter an orderdirect+
ing the'immediate-..destraction-of,.'such
device
by any game-warden'or-.the,.sheriff;.,or--any
constable,-in-the,-,county;
Andy--said'officer
executing-said.order;.-shall,;~under-oath;
m&e his-return-to-saidcourt-showing how,
when, an&where;.-such'.device~was'destroyed.
It shall be the duty of the Parks and Wildlife
Department to enforce this Act."
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Honorable Jack McLaughlin, Page 3, (M- 622 )
” ”
. . . .
We assume your questions refer to Article 1, Sections 17 and
19 of the-Constitution of Texas. Article 1, Section 17, reads
as folkows:
,*
No person's property,shall'be taken,
dame~gedor;,destroyed~for~orappliedto, public
usewithout. adequate~compensation-being made,
unless by-the,consent-of-such.person, and when
taken, except for,the~use of.the State, such
compensationshall be,firstmade, or-secured
by-a.depositof-money;~and no irrevocable or
uncontrol.%ablegrant.of special,privileges
orimmunities, shall be made;~but all,privi-
leges and-franchises-granted'by.~theLegislature,
or-created under its authority shall be subject
to,the control--thereof."
The-corollary of Section 17 in the Constitution of the
United States is the 5th Amendment, which reads, in part,
as follows: .'
"No person shall O D . be deprived of
life, liberty;or-property,,~without~due
process of--law;norshall private property
be,taken for public use without just com-
pensation;"
Article 1, Section 19 of the Constitution of Texas reads
as follows:
"No citizen of-this~.State-sha%l.bede-
prived of life, liberty; property,-'privileges
or immunities, or in any manner disfranchised,
except by the due course of the law of the
land."
The corollary of Section 19,,in,theConstitution-of the
United States is both the 5th Amendment, quoted above in
part, and the 14th Amendment,~which,reads; fn,part; as follows:
"No state shall make or enforce,any``law'
which shall abridge the~privileges orimmunities
of citizens of the United States; nor shall
any State deprive any person'ofm'life,liberty,
or property without due process .of law; nor
deny to any person within its jurisdiction
the equal protection of the laws."
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Honorable Jack McLaughlin, Page 4, (M-622 )
The.United States.Supreme Court has upheld Agnew York
statute.allowing~the seizure and~destruction.~of~-ftshnets
being used 'illegally,which.did~not.~providefor any notice
or hearing,;-pointing outthatthe'~,.owner
'wou'ld
-have.his'day
in court~'at-a'lhter--date'fna.,suft'~,brought
for,the destruch
tion of'-then-property.'.Lawtonv. Steele; 152 U.S. 133 (1894).
See alsa-Yakus v. United States, 321 U.S. 414, 442-443 (1944)
confinblng thisview.
Inconsidering the.constitutionality Of~Article-952L-12,
we eliminate from,our-discussion the-constitutionality'of,-
~
seising~prohibited devices found where there is no individual-
in possession; ~since~an-opinion--of~this~offide,~#o.-~$~679````1939)
determined that'strikingly similar~provisfons inArticle.952&10,
53, we're'appropriateand~constitutional; ,What.remains for.dfscus-
sion is~the-language.,of-Section2~of~Article 952L-10 as it ap-
plies to-.anindividual found with prohibited devices in his
possession orinusing,those.,devices; "'
Also,similar to,Article,952L-12 and Article 952L-10~is
Article~,941,of-the Texas Penal-Code. The pertinent-portion
of Article 941 provided that where persons are charged with
violation of the provisionsof.-the-Act*(Article 941) then:
'*'The,GameFish and'CysterCommissioner of-Texas
or-his deputy,shall have-the 'powerand right
to,seize,.,.and^hold
nets;-"seines~
or.'other-tackle
in-his possessionas-evidence-until``after the
trial of the defendant and no suit shall be
maintained.against~him-thereforr"
The same questions of constitutionality were raised in
construing Article 941, in.the case,of Tuttle v. Wood;35
S.W.?d 1061 (1930, error ref.).~ The-Court inthat.case
recognized that the State-owns'the'game~and,the tidewaters
and the fish within the state and-has,the sovereign and.
inherent power, exercisable'through the-Legislature, to
regulate the taking of fish-and shrimp'from public waters
and to prohibit such taking;.citfng-.Sterrettv;,~Gibson,
168 S.W. 16, (Tex.CiviAnn;,.~1914,no,writ) 1~'
that the,
necessity and reasonableness .of~-thefish regulations-are,
left to the discretion of~the'legislature,'and,that the
citizen has no vested right in,~
the game and.fish of the
State. Consequently, the Legislature..has',the power ,to
declare that which is not a constitutional right,to be
unlawful, thereby revoking or modifying that~which is a
mere privilege and which the state, in its sovereignty,
may or may not choose to bestcw upon the citizens of the
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Honorable Jack McLaughlin, Page 5, (M- 622 )
State.,.Sterrett-v. Gibson, supra. We willpresume that,
there~wkfl be"a,,reasonable-exercise-ofthe police powerand-
consequentlyysuch exercise will not be held to. be a "taking"
or "damaging" of property for which compensation must .be
paid.
In::.determining
the constitutionality of Article 941,
the cdurt in Tuttle vi Wood.said the following:
."It is contended ~. . . that the act is
violative of the due process and equal pro-
tection clausesof the Federal and State
Constitutions and fin contravention of~the
provision of the State Constitutionvesting
the Legislature with the ~exclusive powerto'
make laws. We are of~the opinion that the
acts are not subject to these objections.fl
(Emphasis.Added:)
It'is therefore-the opinion~of this office.that-Sections
2 of Article,952L-12 is constitutional-and does-not-violate
the due--processclause-of either-the'Texas or the~,United
States~Constitution; nor would;,itnecessarily~be held to
deprive 'a~person of'property-.without~'compensation-upon
judicial review thereof: ,.We~arereinforced-in our-opinion
by the ,following'language,~from.,Sterrettv.
Gibson;~supra,
which indicatesthat the.state grants no property right
or immunity to an individual in the fish or apparatus used
within its waters.
"The state.has the power and authority to
make laws deemed necessary and proper for
the preservation of its game and fish, and
such power has been exercised so long and
so beneficially that any attempt to call
it in question will meet with scant con-
sideration by any appellate court. Note
only has the state the power to preserve
its game and fish, but it is its duty to
do so by enacting laws prohibiting de-
structive and exhaustive methods of taking
the same, by the use of instruments that
will destroy them at improper times and
laces. In the exercise of this wise and
eneficient police power the state has
authority to not only declare that seines
and nets shall not be used in its waters
but to make such use a crime and to make
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Honorable Jack McLaughlin, Page 6, (M-622 )
alLmeasure necessary to prevent a reoe-
tition of such offenses; Suchinstrumsnts
of-destruction of fish may be declared
nuisances ,by the ,Legislatureand its
officers authorized to destroy them."
-(Emphasisadded.)
Itappears settled law that the federal and state govern-
ments can seize without compensation property put to illcit
use in violation of statute, and the United States Supreme
Court affirmed this rule even where the owner of the legal
title to~the oronertv did not warticiwate in such illesal
use and had nb knowledge of it: J. W: Goldsmith, Jr. z Grant
co. v. U.S., 254 W.S. 505 (1921).
We feel the language quoted above from the Sterrett
case correctly answers both of your questions in the negative.
There can be no "taking" or "damaging" of constitutional
property rights if no such rights exist. The forfeiture of
an automobile owned by one not operating it when it was seized
and found to be illegally transporting narcotics has been
upheld as within the police power of the state. State v.
Richards, 157 Tex. 166, 301 S.W.Zd 597'(1957).' Commercial or
Individual fishing licenses issued by the State constitute
mere personal privileges which may be summarily revoked for
a violation of any of the terms and conditions imposed by
the Legislature. The courts have no concern with the wisdom
of such legislative acts and must give effect to the stated
purpose or plan of the legislature, although such measure
mav seem ill advised or imoracticable to some individuals.
State v. Jackson, 376 S.W.id 341.iTex.Sup. 1964).
SUMMARY
Article 952L-12, Section 2, Texas Penal Code,
providing both for seizure and confiscation of
devices prohibited in Espiritu Santo Bay and
other bays and lakes until and pending outcome
of trial of the individual possessing or using
such devices, and destruction of such devices
upon conviction of the individual possessing or
using them is
General of Texas
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Honorable Jack McLaughlin, Page 7, (M-622 )
Prepared by Bennie W. Bock, II
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
R. D. Green
Terry Goodman
Glenn Brown
Austin C. Bray, Jr.
MRADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALXER
Executive Assistant
NOLA WHITE
First Assistant
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