Untitled Texas Attorney General Opinion ( 1958 )

OSNEY GENEHAL
OFTEXAS
Honorable Weldon Cabaniss Opinion No. WW-384
County Attorney
Aransas County Re: Does Article 9785 Vernon's
Rocknort. Texas
- I
Penal Code. reueai the effect
of Article'952-l-10, Vernon's
\ Penal Code as to the waters
of Copano Pay, Mission Ray
and connecting waters west of
State Highway No. 35 in Aran-
Dear Mr. Cabaniss: sas County.
You have requested the opinion of this office as to
whether Article 9783,Vernon's Penal Code, prohibiting the use
of seines, shrimp trawls and various types of nets in the waters
of Copano Bay Mission Ray and connecting waters west of State
Highway No. 35 in Aransas County, has the effect of repealing
Article 952 L-10, Vernon's Penal Code, defining the offense of
possessing such equipment in these waters; and if Article 952
L-10 has not been repealed in this instance, whether the confis-
catory provisions of Section 3thereof are mantiatory.
Subsequent to the receipt of your opinion request, you
advised the undersigned that the aforementioned waters are tidal
waters.
Article 952 L-10, as amended, pertinently provides:
,,
*It shall be unlawful for any person
0 *
to use a strike net, gill net, trammel net, or
shrimp trawl, contrary to the provisions of Chap-
ter 119 Page 269, Acts of the Regular Session of
the For&-first Legislature [Article 941, Vernonss
Penal Code].
"Sec. 2. It shall be unlawful to have in
possession any seine, strike net, gill net, trammel
net or shrimp trawl in or on any of the tidal
wat&s of this State where the use of said seine,
strike net. gill net. trammel net. or shrimp trawl
is prohibited from being used in taking or catching
fish and/or shrimp, o e o
"sec. 3. When any officer of this State sees
any seine, strike net, g.illnet, trammel net, or
I ”
Honorable Weldon Cabaniss, Page 2 MI-384)
shrimp trawl in or on any of.the tidal waters of
this State where the use of +,,+,.
'q[iS~mS.3.~.~k::.````~bited
from being used for the nur-coseof taking flsn
and/or shrimp and has reason to believe and does
believe that the same is being used or possessed
in violation of the provisions of this Act, it
shall be his duty to arrest the party using or
possessing 0 . D [same] and, without a warrant
shall seize o 0 D [same] as evidence. It shall
be the duty of such officer to deliver. D + [same]
to the County Judge or Justice of the Peace of the
county in which it was seized, where it shall be
held as evidence until after the trial. If the
defendant is found guilty of possessing or using
such seine, strike net, gill net, trammel net, or
shrimp trawl unlawfully, the Court shall enter an
order directing the immediate de,struction,of0 a .,
[same] by the Sheriff or constable-of the county
where the case was tried and the Sheriff or con-
stable of the county sha41 immediately destroy
D 0 0 [same] and make a sworn report to said
County Judge or Justice of the Peace, showing how,
when and where 0 . m [same] was destroyed. When
such device is found by an officer of this State
in',or:.,on
any of the tidal waters of this State
without anyone in possession where its use is ore-
hibited, it shall be seized by such officer with-
out warrant and delivered to the County Judge or
Justice of the peace in the county in which it was
found. Said officer shall make affidavit that
such seine, strike net, gill net, trammel net or
shrimp trawl was found in or on the tidal waters
of this State at a point where its use was crohib-
ited, which said affidavit shall describe o . .
Ee,? and the Court shall direct 'the Sheriff or
any constable of the county to post a copy of said
affidavit in the Courthouse of the county in which
D e a [same] was seized, and said officer shall
make his return to the Court showing when and where
said notice was posted, Thirty (30) daysafter
such notice is posted, the Court, either in term
time or in vacation, shall enter an order directing
the immediate destruction of 0 0 0 [same] by the
Sheriff‘ or any constable in the county, and said
officer executing said order shall, under oath,
make his return to said Cour1 showing how, when,
and where 0 D o [same] was deitroyed.
I'
0 0 0" (Emphasis ours).
. I,
Honorable Weldon Cabaniss, page 3 W-384)
House Bill No. 360, Acts 50th Legislature, 1947, Re U-
lar Session, Chapter 149, page 253, codified under Article 97b.J,
Vernon's Penal CQd6, was enacted at a later date, This Act pro-
vides:
"Section 1. It shall be unlawful for any per-
son, firm or corporation, or their agent or agents,
to use a seine. strike net. shrimp trawl. sill net
or trammel net in anv of the waters of Conano Bav,
Mission Bav and connecting waters west of State
Highwav No. 35 in Aransas County_,Refugio County and
San Patricia County. . 0 0
II
0 6 0
"Sec. 3. All laws or parts of laws that con-
flict with this Act are hereby repealed,
,t
0 . .It (Emphasis ours),
The provisions of Article 941, Vernon"s Penal Code, were
incorporated in the clause of Article 952 k-10 suura, relating to
the unlawful use of shrimp trawls and certaS,neypes of nets; how-
No, 360, 50th Legislature,
ever, with the enactment of House Bi.:Ll.
supra, containing specific provisions relating to the use of such
apparatus in Copano and Mission Bays, the applicability of Article
941 su ra to these waters has ceased, 39 Tex,Jur, 15'0?Statutes,
Sect tE?
Section 3 of House Bill No, 360, 50th Legislature, supra,
purports to repeal all laws or parts of laws in conflict with its
provisions, A conflict between statutes is said to exist where one
permits or licenses that which another forbids and proh:fbits. See
definitions of "conflict" in Words and Phrases, Vol,,8A, page 1310
Article 952 L-10, suwra, prohibits the possession of seines, shrimp
trawls and a variety of nets in those tidal waters where the use
of this equipment has been forbidden, Although House Bill No, 360,
50th Legislature, supra) proh:i.bi.ts
ti;euse of sei,nes,shrimp trawls
and various nets in Copano and Mission Bays and in certain of the
connecting waters, no section of that Act denounces the mere posses-
sion of such equipment in these waters, Thus, it appears that the
Legislature did not intend for this Act to comprehend the entire
subject matter relating to the prohibitions against equipment of
this nature insofar as the aforementioned waters are concerned, but
rather that the mandate of the Act should be considered in pari
materia with the non-conflicting provisions of the existing law on
the subject. Ex parte Spann, 5% S.W.2d 510 (Tex,Crim, 1932). In
our opinion the provisions of Article 952 h-10 were not repealed by
House Bill Noa 360, 50th Legislature; moreover, the possession of
Honorable Weldon Cabaniss, page 4 (W-384)
seines, shrimp trawls or any of the enumerated types of nets in
the waters described in the latter Act would constitute an offense
punishable under Article 952 L-10.
In view of our answer to your first question, we next
consider whether the provisions of Section 3 of Article 952 L-10,
sum&., are mandatory. I.n our OpiniOn, once an Officer is per-
suaded that any of the enumerated apparatus is being used or po-
sessed in violation of the Article, he has no alternative but to
seize the apparatus and deliver it to the appropriate judicial
officer. Likewise, if the possessor of such equipment is found to
be guilty of possessing or using it unlawfully or in the event
the possessor is not discovered if an affidav1t has been posted
in the manner and for the duration prescribed it is the duty of
the Court forthwith to order the immediate de&u&ion of the
equipment and the officer to whom the order is directed shall pro-
teed to execute the Court's command.
SUMMARY
House Bill No. 360, 50th Legislature, 1947
Gif;.;le 978j, V.P.C.) prohibiting the use of
, shrimp trawls and enumerated types of nets
in Copano and Mission Hays and in the connecting
waters west of State Highway No. 35 in Aransas,
San Patricia and Refugio Counties, has not repealed
Article 952 L-10, Vernon's Penal Code, prohibiting
the possession of such equipment in these waters;
and that when operative, the provisions of Section
3 of Article 952 L-10, Vernon's Penal Code, are
mandatory.
Yours very truly,
WILL W$&i$ON A
DRT:wam:wb
Honorable Weldon Cabaniss, page 5 wd-384)
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chafrman
J. C. Davis Jr.
Wayland C; kivers,,Jr,
C. K. Richards
P,EVIEWEDFOR THE ATTORNEY GENERAL
BY: W. V, Geppert