THE ATTORNEY GENERAL
OF TEXAS
Mr. Andrew Sansom Opinion NO. JM-1206
Executive Director
Texas Parks and Wildlife Re: Whether licensed commercial
Department shrimpers must hold commercial
4200 Smith School Road finfish fisherman's licenses in
Austin, Texas 78744 order to. sell finfish (RQ-1852)
Dear Mr. Sansom:
Your predecessor requested the opinion of this office
on an issue concerning the authority of commercial shrimpers
to sell finfishl captured in the course of harvesting shrimp
from the waters of this state. You ask whether the captain
and each paid member of the crew of a boat licensed as a
F commercial shrimp boat are required to hold both a general
commercial fisherman's license and a commercial finfish
fisherman's license in order to sell finfish species that
are otherwise lawful to sell. The staff of the Parks and
Wildlife Department has answered the question in the affir-
mative.
It is well established that the construction of a
statute by the agency charged with its administration is
entitled to great weight. Ex oarte Roloff, 510 S.W.Zd 913
(Tex. 1974). This is especially true where the administra-
tive construction is contemporaneous, or nearly so, with the
statute itself. Durrouahs V. les 181 S.W.2d 570 (Tex.
1944). The courts will not, howeve;, abide by an adminis-
trative agency's interpretation that is contrary to the
clear meaning of an unambiguous statute. Texas Health
Facilities Comm'n V. Paso Medical 573 S.W.2d 291 (Tex.
Civ. App. - Tyler 1978, writ ref'd n.h.e.); 2 Tex. Jur. 3d,
1. B*Finfish" are @@those living natural resources hav-
ing either cartilaginous or bony skeletons (Chondrichthyes
and Osteichthyes)." Parks & Wild. Code § 47.001(14).
p. 6383
Mr. Andrew Sansom - Page 2 (JM-1206)
'.
The captain and each paid member of the crew of a boat
licensed as commercial shrimp boat under chapter 77 of the
Parks and Wildlife Code must obtain a general commercial
fisherman's license. Parks & Wild. Code 5 77.040(b). A
commercial fisherman is
a person who catches edible aquatic products
except oysters from the water of this state
for pay or for the purpose of sale, barter,
or exchange, or any other commercial purpose.
J&g& 5 47.001(l). The general commercial fisherman's license
authorizes the licensee to engage in business as a commer-
cial fisherman. w ia, 5 47.002(a).
In contrast, section 47.003(a) of the code provides,
"No person may engage in business as a commercial finfish
fisherman unless he has obtained a commercial finfish
fisherman's license." A commercial finfish fisherman is na
person who catches onlv finf~ish from the tidal waters2 of
this state for pay or for the purpose of sale, barter, or
exchange.w Id. 5 47.001(2) (emphasis and footnote added).
The department's position on this issue is based on its
understanding of the nature and purpose of the commercial
finfish fisherman's license. The license is thought to
constitute a specialized and restricted entitlement to
capture finfish species for commercial purposes. The
restriction, we are told, was meant to protect a segment of
the commercial fishing industry while at the same time
promoting conservation of finfish species. In support of
these claims, our attention is directed to public testimony
offered in support of Senate Bill 302 of the 66th
Legislative Session in 1979.
Senate Bill 302 would have added a new class of
commercial fishing license -- the "tidal water commercial
finfish fisherman's license" -- to the then existing tidal
water commercial fisherman's license and nontidal water
commercial fisherman's license. Bill File, S.B. 302, 66th
-g. (1979) (introduced version). It would also have
changed the definition of "tidal water commercial fisherman"
to mean, in relevant pa*, "a person who catches fish, other
than." The term "finfish" was limited in the bill
2. "'Tidal water' means all the salt water of this
state, including that portion of the state's territorial
water in the Gulf of Mexico within three marine leagues from -,
shore." L 5 47.001(7).
p. 6384
Mr. Andrew Sansom - Page 3 (JM-1206)
to eight particular species of fish. The bill would have
carved a special niche for holders of commercial finfish
fisherman's licenses, in essence granting them the exclusive
right to exploit the designated finfish species for com-
mercial purposes. &!8 Public Hearina on S.B. 302 Before th
66th Leg. 1979:
(testimony of Senator Babe &hwarts) (tape(%laLfe from
Senate Staff Services).
The bill history prepared by the Legislative Reference
Library shows that Senate Bill 302 was never reported out of
the Senate Committee on Natural Resources. The failure to
report a bill from committee or inaction by the legislature
on a particular bill does not conclusively establish
legislative intent as to the subject matter of the bill. El
Chico Cgpp. V. P 0 ole , 732 S.W.2d 306, 314-15 (Tex. 1987).
This rule, strictly speaking, means that the failure of the
legislature to act on Senate Bill 302 is not indicative of
its intent to reject the principles embodied in the bill.
Such intent, however, is clearly evident from a comparison
of the provisions of the bill with the sections of the Parks
and Wildlife Code that occupy their place.
The plaip language of the Parks and Wildlife Code does
not support the dichotomy set out in Senate Bill 302.
Because the captain and crew of a commercial shrimp boat are
entitled by their licenses to engage in business as com-
mercial fishermen, they are by definition not prohibited
from catching, in addition to shrimp, edible aquatic
products other than oysters. The definitions of "commercial'
fisherman" and "commercial finfish fisherman" now in place
were adopted during the same legislative session at which
Senate Bill 302 was offered. Acts 1979, 66th Leg., ch. 260,
at 550; Acts 1979, 66th Leg., ch. 623, at 1398. These
definitions clearly indicate that the legislature intended
the latter occupation to constitute a subset of the former,
at least where edible species of finfish are concerned.
Neither the definitions nor the provisions governing the
issuance of the two licenses inform those persons who must
determine the effect of the statutes on their occupations of
the dichotomy urged by the department.
The best indicator of legislative intent is the lan-
guage of the enacted law. &R wre v. Citv of Dam
170 S.W.Zd 722 (Tex. Comm'n App. 1943, opinion adopted;;
Citv of Nassau Bav v. moarad 582 S.W.2h 505, 508 -(Tex.
Civ. ADD. - Houston rist Dist.i 1979, writ ref'd n.r.e.).
The rei&ant provisions of the -Parks and Wildlife Code may
not describe the activities in which holders of general
commercial fisherman's licenses may engage in the way the
r department would prefer, but we do not believe they are
indefinite or misleading. Accordingly, we conclude that the
p. 6385
Mr. Andrew Sansom - Page 4 (JM-1206)
captain and paid members of the crew of a boat licensed as a
commercial shrimp boat are not required to obtain commercial
finfish fisherman's licenses in addition to the general
commercial fisherman's license required by section 77.040 of
the Parks and Wildlife Code in order to sell finfish species
that otherwise are lawful to sell.3
The captain and paid members of the crew
of a boat licensed as a commercial shrimp
boat are not required to obtain commercial
finfish fisherman's licenses in addition to
the general commercial fisherman's license
required by section 77.040 of the Parks and
Wildlife Code in order to sell finfish
species that otherwise are lawful to sell.
JIM MATTOX
Attorney General of Texas
i
WARYXELLER
First Assistant Attorney General
mu MCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
3. It might be argued that our conclusion here renders
the commercial finfish fisherman's license wholly redundant,
since the only license any individual would need is the
general commercial fisherman's license. We acknowledge this
prospect, but add that the result is compelled by the plain
language of the Parks and Wildlife Code and is beyond our
authority to correct.
p. 6386