Untitled Texas Attorney General Opinion ( 1960 )

:- THE :ATTORNEY GENERAL OF ?lxxAs honorableH. D. Dodgen ! opinm NO. ~965 %.xuIT~v~ Secretary : we and Fish Conanission Re: (1) Const~ction of House Bill ws.lton Building l2,Acts 56thLegislature1959, Austin,Texas Article 4075b, Vernon'sAnnotated Civil Statutes,relativeto size 0r travl that my be lawiullyusea for sportsfishermenIn the taking of sbrlmpby SportsBait-Shrimp Trawl; (2) and the rcrvfulmeans and method of th' taking of sh+imp Dear Mr. Dodger other than by trawls. You have request+en opinionof this Departmentgn the a+me subject matterand your .inquiry.reLstesto the shriahageallowanceon.SportsBsit-Shrimp Trawlsas comparedto shHnka&e allowedon Oxnmerci.slBay-Bait-ShrimpTrawlsa$ your question numbq 2 posing the que@&masto whetherany other type of seines' or nets other than trawls couldbe lawfullyused for the taking of shrimp. The Legislaturepassed,thel&s Shrimp Coneeivattae~c$.BouseBill l.2, ch. l&l, Acts 19!5g,56th.Legislature, which originalbIlLwas exxctedinto law end is now carriedin Vernon16Annot+ed Civil Statutesas Article 4075th In suchlaw the Legisliturein Section1 provided In part as follows: "Sectlon1. This.Ad sbllbe lammasthe "Peras Shrimp Conservation Act' and It is hereby declaredby the Legislatureof the State of Texas as t6 be the public policy of this State that the Sbdup resourcesofthe.St&e of Texas be conservedand pro- tected from deptitia end waste in ordezthat the peopleof Texas and their posteritymay enjoy the mo&:.reaeonableand equitable prlvfiegesin the ownershipand taking of such shrimpremur'6es, cmdthatthe shrimp industryofTexas be protectedfrommlawful encroachmentand be promotedend fosteredconsistentwith the geueralgood of the people of this State md to thos&ends, and.ln the interestof achievingfair, impartial,and unifornlaw enforce- ment. lt is furtherdeclaredby the Legislatureof Texas to be.the Public Policy.cifthie.Statethat any and all laws. acts, bills, rules,regulations.proclamationsor orders .relating to.shrimpor the shrimp lnduetryshall be carriedou+ under this Act, any other provisionbf.the .I.awto the contrarynotwithstanding; provided.how- ever nothing In this Act shall be construedto affect or repealany existinglaws that close any &y or other area of the insidewaters HonorableH. D. Dodgen,Page 2 (WW-965) to the taking or catchingof shrimpthroughoutthe entire year." IEmphasisadded1 Pursuingthe necessaryspecificprovisionsto make the law clear the Legislatureclassifiedthe coastalwaters of this State as "outsidewaters"snd "insidewaters". This was done in order that the "insidewaters"could have specialprotectionin the breedinggrounds,etc., of the shrimp. The boatsto be used for the variouspurposesin the "outsidewaters"and the "insidewstersn are specificallydefined. For example,Section3, subparagraph(e), provides for a "ConunerclalGulf ShrimpBc&'l. Section3, subsection(f), providesthat a CommercialPay-BaitShrimp Eioatis used for the purposeof taking shrimpfor bait only. Section3, (i), "SportsBait-ShrimpTrawl is a trawl for the purposeof taking or catchingor attemptingto take or catch shrimpfor bait for one'sown personaluse." For the purposeof reachingthe conclusionherein statedwe think it unnecessaryto quote all of the provisionsof the Act relatingto the sale of shrimp,etc., but will confineour construction to Section6, and Sectionll, Article4G75b. Section6, subparagraph b, providesfor .smesh of one (1) inch mesh or two (2) inch stretchmesh at the time such bag Is new and unused,yet it carries an exceptionwhich provides,(exceptfor catchingbait shrimpas otherwiseherein provided.) The size of mesh that may be used for a "CommercialBay-BaitShrimpBoat" operatoris specifically providedfor in Section6, paragraph(c), subparagraph (l), which reads as follows: "It shallbe unlawfulfor any bona fide licensedCommercial Bay-BaitShrimpBoat operatorto use in the coastalwaters of this State,at any time, for the purposeof taking or catching,or attemptingto take or catch,shrimpfor bait more than one (1) net at a time, exceptfor a try net not exceedingrive (5) feet as measuredfrom board to board, or to use any net exceedingin size twenty-five(25) feet measuredfrom board to board or betweenthe extremesof any other spreadingdevice,or any net havinga mesh size of less than one and one-half(11/2) inchesstretchedmesh at the time such net is new and unused,or to have in use or on board in the insidewaters of this State duringthe closed season thereofmore than one set of trawl doors (or other spreadingdevice) and more than one set of try net doors." [Emphasisadded] Prom observingthe contextof this portionof the Act it is noted that s provisionis made that a "Commercial Bay-BaitShrimpBoat" operatoris prohibited HonorableH. D. Eodgen,Page 3 (``-965) fromusFng a mesh size of less then one and one-half(11/2) inchesstretched mesh at the time such net is new end unused. The shrimpIndustryand the Game and Fish Commissionofficersare well scquainted with the fact that a new and unused trawl will shrinkwhen treated "it,hpresellrativesto preventits being soonerdestroyedby the act of salt mter thereonand even subjectinga non-treatednet to salt water will cause shrinlratwThere is no set formulaby which the emountof shrinkagemay be determinedin the variousinstancesin as much as all operatorsor shrFmp trawlsdo not pursue the Identicalmethod of treatment,therefore,it Is the clearintentionof the Legislaturethat a one and one-half(1 l/2) Inch stretchedmesh at *he time such net is new and unused will shrinkand become B net smallerthan one and one-half(1 l/2) Inch stretchedmesh due to shrink- age. If this were not true, the words "new and unused"vould not have been used. The LegislatureIoxv a treatednet would shrink. The Act makes it clear that shrimpmay be taken by a "CommercialBay- BaitShrimpBoat" for halt purposesonly and prohibitsthe sale of shrimptaken by such operatorfor human consumption. We now turn to Sectionll of Article 4G75b which reLatesto "Sports Bait-ShrimpTrawl". The full contextof the Sectionfollows: "SectionIl. It shall be lawful for any personto take or catch,or attemptto take or catch in the coastalwaters of this State, bait shrimpfor his own personaluse by the use of Cast net, Dip net, Bait trap, or Minnow seine not largerthan twenty(2Q) feet inlengthmanuallyoperatedon root only vlth- out the use of any mechanicalmeans or devices;and it shall be lawfulfor aw nersonto take or catch.or attemntto take or catch,bait shrimp for his own personaluse by the use of a "SportsBait-ShrimpTrawl" as definedherein. Provided,however, it shallbe unlawfulfor any "SportsBait-ShrimpTrawl" to be In the possessionof any personwithin the coastalwaters of this State,tithoutthe owner thereof having first procureda license, to be known as a Sports Bait-ShrimpTrawl License,from the Commissionprivilegingsuch trawl to be used withinthe coastal waters of this State; providedalso, that such trawl shall first have been inspectedand properlytagged by the Commissionand an inspectionand licensefee of Three Dollars ($3) shall have been paid to the Commission,also the lic&nseprovidedfor herein shall expire on August 31st followingthe date of Issuance. Provided further,that It shall be unlawful for any person to use or have within his possessionwithinthe coastalwaters any SportsPaIt- ShrimpTrawl having a mesh smallerthan one and one-half(1 l/2) inch stretchbetween the knots; and it shallbe unlawfulto use or employ doors or other boards or devicesto spreador open such Ho&able H. D. Dodgen,Page 4 (``-965) trawlswhich are of greatersize and dimensionsthan twelve (12) by eighteen(ti) inches,or a total of two hundredand sixteen(216) squareinches,providedfurther,that it shall be unlawful.to have in possessionor to use more than one (1) such trawl per boat and the distancebetweenthe doors or other boards or spreadingdeviceshalltit exceedtwelve (12) feet. Providedfurther,that it shallbe unlawfulfor any person taking or catching,or attemptingto take or catch, shrimpfor his own use, under the provisionsof this Act, to have within his possessionmore than two (2) quarts0r shrimp per person, eitherfresh shrimpwith heads on, or frozen shrimp,or both, to be used for bait purposesonly, but not otherwise;provided furtherthat any personmay take or catch shrimpduringthe open seasonfor his own personaluse providedthe catch meets the count requirementsof this Act, any other provisionsor this Act to the contrarynotwithstanding."[%phasis added] An examinationof Sectionll indicatesthat the Legislatureprovidedthat a Sports ShrimpTrawl shouldhave a mesh not smallerthan one and one-half(11/2) inchesbetweenthe knots and it is significantto note that they failedto use the language."atthe time such net is new and unused". Since both nets are for the purposeof taking bait shrimponly end sincethe Legislaturerecognizedthat shrInkagewould occur in the mesh of trawls of the CommercialBay-BaitShrimpBoat, therefore,it Is the opinionof this Departmentthat it was clearlythe Legislative intentto allow the same tolerancefor shrinkageto a SportsBait-ShrimpTrawlas thst allowedto a f%mmercialBay-BaitShrimpTrawl. Iu consideringyour questlonnumber 2 we examinedall of the sectionsof House Bill kI75b, Vernon'sAnnotatedCivil Statutes,88 well 8s the captionof House Bill 12, supra,and we find that there is no provisionfor the takingof shrimpother than a try net end a trawl other than in~sectionll. It provides that the taking of shrimpfor one% own personaluse may be lawfullytaken by the use of a Cast net, Dip net, Bait trap or Minnow seineno largerthen twenty(20) feet in length,manuallyoperatedon foot withoutthe use of any mechanicalmeans or devices. In the same Sectionll a definitionis given of a "Sports Bait-Shrimp Trawl" though it appearsthat the only person who may lawfullytake or catch shrimpby use of other than a try net and trawl are sports fishermen. The Legislaturedid not we fit to specifically providefor the sizemesh of a Cast net, Dip net, Bait trap or Minnow seine that may be used for a sports fishbrman; Since the Legislaturewas,dealingwith the subjectof taking shrimp for bait &poses only and saw fit to providethe mesh size of trawls,it is obviousthat it was not intendedto place a limitationon the size of mesh of the other nets end seinesreferredto above. This shouldanswer your questionnumber 2. BonorableH. &Dodgen, Page 3 (``-965) SUMMARY (1) ArticlebO75b relatingto the ta&ing of bait shrimpby SportsBait-ShrimpTrawl in which the law prohibitsa mesh smsllerthen one end one-half(11/2) Inchesstretchedbetween the knots intendedthe tolerancefor shrinkageallowedtrawls or CommercialBay-BaitShrimp Boats. (2) Cast nets, Dip nets, Bait traps or Ylnnow seinesare the only means other than trawl allovedfor the taking of shrimpend these implementsmay be used only by a sports fisherman. Yours very truly, WILL WIIBON AttorneyGeneralof Texas BY:~& & HARRISTOLER Assistant APPRovELk 0PnIIo!IC~EE: W. V. Geppert,Chairman BillAUen Arthur.%ndlin MarthaJoeStr6ud Joe&Master REVIBWEOFORTHEATTQRKMGENERAL BY: IeonardPassmore