Untitled Texas Attorney General Opinion

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Honorable Sam Devall
County Attorney, Lavaca County
P. 0. BOX 273
Hallettsvllle, Texas
Opinion No. M-10
Re: Legality of taking
fish using only the
Dear Mr. Dsvall: hands to do so.
You have requested our opinion as to whether Article
927, Vernon's Penal Code, prohibits the taking of Tish using
only the hands to do so.
You refer particularly to the practice of "under-bank"
fishing for large catfish in the Lavaca and Ravidad Rivers
and some of their tributary streams and point out that con-
siderable numbers of yellow catfish are taken from under the
banks of these rivers and streams using onlg the handa for
this purpose.
Article 927 provides:
"Except the ordinary hook and line or trot
line, or a set or drag net or seine, the meshes
of which shall be three or more inches square,
or a minnow seine not more than twenty feet long
used for catching bait, no person shall place in
any fresh water river, creek, lake, bayou, pool,
lagoon or tank, in this State, any net, trap z
,other device for catching fish, or take or catch
any fish from said waters with any net, seine,
device, or hook and line or trot line, other than
as permitted herein. Whoever violates any pro-
vision of this article shall be fined not less
than twenty-five nor more than one hundred dollars."
(Emphasis added:)
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Honorable Sam Devall, Page 2 (M-10)
Only if human hands are a 'device" as the term is used in
the statute is their use in taking fish prohibited.
The doctrine of ejusdem generis is decisive of the question
before us. This doctrine, which is a prime rule of statutory
construction, imports that general words following an enumeration
of'oarticular or sneciflc thinsrswill be confined to'thinns of
the-same kind and class as those enumerated. ~53 Tex.Jur.sd 223:
Statutes, Sec. 155: Farmers' ECMechanics' Nat. Hank v. Hanks, 104
Tex. 320, 137 S.W. 1120 (1911); Stanford v. Hutler, 142 Tex. 692,
181 S.W.2d 269 (1944). Human hands are not a "device" of the
same kind and class as a net, trap or seine.
While the Texas appellate courts have not construed Article
927 In this respect, the Supreme Court of Michigan In In re Yell,
65 N.W. 97 (1895), in construing a similar Michigan statute, said:
"Section 2 reads that it shall not be lawful
for any person or persons to set, place or use any
pound, trap, stake, gill, or set nets or seines, or
any device of any kind, for taking fish in any of
the tributaries of the Saginaw river. It is con-
tended that the title gives no intimation of a pur-
pose to entirely prohibit fishing in the tributaries
of the Saginaw. We need not consider whether, if
section 2 were to be construed as an entire prohibi-
tion of fishing, It would be within the title of the
act, as it is our view that it was not intended by
this section to prohibit fishing with hook 'and line.
The term 'device' may be broad enough to cover hook
and line, but when read in connection with the other
words of the section 1: must be construed to mean a
device of a like ki.. (Emphasis added.)
Since the Michigan Supreme Court had little difficulty in
holding a hook and line not to be a device of like kind with
pounds, traps, stakes, gills, nets and seines, it seems clear
that the Texas courts would have even less difficulty in holding
human hands not to be a device of like kind with those devices
the use of which Is prohibited by the Texas statute.
In our opinion, Article 927 does not prohibit the taking
of fish using only the hands to do so. This opinion is limited
to the construction of Article 927, as we have not considered
local and special laws, which govern fishing in specified
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Honorable Sam Devall, page 3 (M-10)
counties or areas, a8 none of these relate to Lavaca County.
SUMMARY
Article 927, Vernon's Penal Code,
does not prohibit the taking of
fish using only the hands to do so.
ney Genepal of Texas
NW:ms
Prepared by Neil Willlams
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Philllws, Chairman
W. V. Geppert, Co-chairman
Thomas Mack
Pat Bailey
John Reeves
W. 0. Shultz
Staff Legal Assistant
A. J. Carubbl, Jr.
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