Untitled Texas Attorney General Opinion ( 1947 )

R-770
177
OF'FICE OF
THE AIYTORNEY GENERAL
PRICE DANIEL
``RNxzY GENERAL Nov. 15, 1947
Hon. James C. Martin Opinion No. V-431
County Attorney
NU8C88 county R8: Constitutionality of H.B.
Corpus Christi, Texas 380, Acts 50th Legisla-
tUr8, R-S., 1947, par-
taining to taking and
sale of shrimp.
Dear Sir:
You request a ruling relative to the constitu-
tionality Of ROUS8 Bill 380, being Chapter 107, Acts Of
th8 50th Legislature, 1947, Regular Session, page 149,
clm8LldiQ3 v. P. c., Art. 952 L-11, pertaining to the tak-
ing and sale of shrimp. You state:
"It is COnt8nd8d by some partics that
HOWE Bill No. 380 iS UILoOnstitUtiOna1 in vi8W
of tha provisions of said law wh1ch.permit.sto
b8 legally Used in Galveston CoUIity,Texas, a
board not more than 20" wide, and not more than
60" long, and In other counties of the State,
a board not more than 12" wide and not mor8
than l8? long. Those contending the law to bye
unconstitutional maintain it violatss the,Texas
Constitution In that It Is discriminatory, and
is a local or special law."
The particular paragraph which you refer to Is
found in Vernon's Annotated Penal Code, Article 952 L-11,
as amended, and reads as follows:
"Sec. 1:. . . .
"It shall b8 UUlaWfUl f~Orany person t0
take
or assist In the taking of shrimp from
the inland waters of this State by the use
and operation of a bait trawl towed by a
power boat, which said bait trawl shall be
more than ten (10) feet at the mouth, as
measured along the webbing attaahed to the
.cork line, or twenty-five (25) feet in
length, or by the us8 and anployment of
178 Hon. James C. Martin, page 2, V-431
doors or Other boards to spread and open
said bait trawl which are of greater size
or dimension than twelve (12) by eighteen
(18) Inches, or to tow or assist in the
towing of more than one such bait net or
trawl from a power boat, or to tow other
boats engaged in taking bait shrimp; and
it shall be unlawful for any person opera-
ting a bait trawl to have on board any boat
any amount of bait shrimp during the clos-
ed saason in inland waters as above provid-
ed in excess or one hundred and fifty (150.)
pounds of shrimp In their natural state
with hea.dsattached. Provided that during
such closed season in Galveston County it
shall be lawful to take shrimp for bait by
the use and amployment of doors or boards'
of not greater dimension than twenty (20)
by sixty (60) inch8S and to possess not
, more than two hundred and fiftg~ (250)
pounds Of shrimp with heads attached, . .~."
The State Is th8 owner of the fish, shrimp and
other products of the tidal waters of the Gulf of Mexico
within the jurisdiction of this State. Arti&le 4026, V.
c. s.; Raymond v. Kibbe, 95 S.W. 727, 729, 730;.Stephen-
son v. Wood,.34 s. w; (26.)246, 119,Tex. 964; Tuttle v.
Wood. 35 S. W. (2d) 1061. writ refused: Mccreadv v:Vir-
gini;, 94 U. S.:391, 24 L. Ed. 248; Geer v. Conhectlout,
161 U.S. 519.
Article III, Section 56 of the T8Xas Constitu-
tion, aft8r prohibiting the Legislature from passing
"any local or special lawn in certain enumeratad instan-
ces, oontains th8 following provision:
" . . . . provided, ,that nothing herein
contained shall be construed to prohibit the'
Legislature from passing speaial laws for the
preservation of the game and fish of this State
in certain localities."
In Stephenson v. Wood, Civil Appeals, 35 S. W.
(2d) 794, the Galveston Court in construing this provi-
sion of the statute said:
"It occurs to us that by the 'paragraph
last quoted the``framersof the Constitution
meant to declarethat nothing in the Consti-
tution should prohibit the Legislature from
Hon. Jam8S C. Martin, page 3, V-431
passing laws, 'special or local,( for the
preservation of the game and fish of this
state, whether made to apply to the Who18
state or to certain localities without no-
tic8 required in the passage Of laws rela-
tive to the subjects mentioned in sections
56 and 57 of article 3 of the Constitution."
It is immaterial that a game law applies to
some counties and not to others or that different laws
apply to different counties. The counties, as such, have
no right to complain that the game laws applicable to it
are different from the game laws applicable to certain
other counties. For instance, there are very few coun-
ties that have the same squirrel laws. Whatever the law
is in a particular county, it applies equally and with-
out diScriminStion to all persons in the county. The
State owns the fish and game, which are ferae naturae,
and through its Legislature it may prohibit their tak-
ing altogether, or place such restrictions on their tak-
ing, as it may se8 fit, either as to the place or th8
means of taking, or both. See authorities cited above.
In Tuttle v, Wood, San Antonio Court of Civil
Appeals, 1930, 35 S. W. (2d) 1061, the court said:
'1. . , . It must be conc8d8d that the
state has the inherent power, to be exercis-
ed through the Legislature, to regulate the
taking of fish and shrimp from its public
waters, -and to prohibit from time to time such
taking, in order to conserve those natural re-
sources for the ultimate benefit of all the peo-
ple. So long as that power is reasonably exer-
cised by the legislative authority, no other
branch of the government may interfere there-
with. Ordinarily, the necessity or reasonable-
ness of regulation or prohibition in specific
cases, for the time being, are left to the dis-
cretion of the Legislature, whose determination
thereof, in the exercise of a sound discretion,
is conclusive upon the courts. . . .v
The Legislature of T8XaS is authorized to en-
act special laws for the preservation of game and fish
without notice required for the passage of "special or
looal laws", and it is immaterial that such laws apply
to certain localities and not to others,
Hon. James ~C. Martin, page 4$ V-431
SUMMARY
House Bill No, 380 (Acts 50th Leg, 19klo
'Ch. l&I?,p0 149) amending Art, 952, L-11, V,
?. co, pertaining to the taking end sale ef
shrimp, and provfdfng that there may be uaed
fn Galveston County, Texas fn a bait trawl for
the takfng of shrimp, a board not more than
20" wide and not more than 60" long, and in
tihsr oountirs lf the State a board not mor8
than 12" wide nor more than 18" longs,is con-
atitutional.
Yours very truly
XITOIU'IEYGENSML OF TXM
-1
David Wuntch
.Assirta&
ATTORNEY GXhXRAL '
.