October 6, 1989
Mr. Charles D. Travis Opinion No. JM-1106
Executive Director
Texas Parks and Wildlife Re: Validity of a municipal
Department ordinance prohibiting the
4200 Smith School Road towing or dragging of .nets
Austin, Texas 78744 near a bulkhead (RQ-1734)
Dear Mr. Travis:
The Village of Tiki Island has adopted an ordinance
prohibiting the towing or dragging of nets of any size
behind boats in certain public waters that are within the
corporate limits of the village. You state, "It has been
suggested that this action by the Village of Tiki Island,
Texas is contrary to Chapter 77 of the Parks and Wildlife
Code" and ask for our opinion on the validity of the
ordinance. We assume that your concern focuses on section
77.041. Assuming that the ordinance was adopted in accor-
dance with law and that the waters that it designates as
restricted are within the corporate limits,1 we believe
that, on its face, this is a valid ordinance.
You also state that the ordinance was adopted pursuant
to section 31.092 of the Parks and Wildlife Code, which
reads in part as follows:
(a) The governing body of an incorporated
city or town, with respect to public water
within its corporate limits and all lakes
owned by it, may designate by ordinance
certain areas as bathing, fishing, swimming,
or otherwise restricted areas and may make
1. We make this assumption because, while part of the
restricted area is identified as being within the corporate
limits of the village, part is identified as "any area
nearer than three hundred (300) feet from any bulkhead
adjacent to any land within the corporate limits of the
Village." Village of Tiki Island, Ordinance No. 4-89-l
(1989).
P. 5796
Mr. Charles D. Travis - Page 2 (JM-1106)
rules and regulations relating to the
operation and equipment of boats which it
deems necessary for the public safety. The
rules and regulations shall be consistent
with this chapter.
. . . .
(d) A copy of all rules and regulations
adopted under this section shall be summarily
filed with the department.
Parks & Wild. Code 5 31.092.
The ordinance declares that the towing of nets
"threatens the safety of recreational and other users of the
waters within the corporate limits" and that the prohibition
is reasonably "necessary to promote safety within such
waters." of course, the reasonableness of an ordinance is a
question of fact, which we cannot resolve in the process of
issuing an opinion. S e. e.a,, John v. State, 577 S.W.Zd
403 (Tex. Crim. App. 1z79); Citv f Cl e v._Lin 446
S.W.2d 377 (Tex. Civ. APP- - HousEon ';ist Dist.yC%,
writ); Citv of Cornus Christi v. Unitarian Church, 4::
S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd
n.r.e.); Sitterle Victoria Cold Storaae Co., 33 S.W.Zd
546 (Tex. Civ. Appy' - San Antonio 1930, writ dism'd).
We find no conflict between the ordinance and the other
provisions of chapter 31. The chapter generally relates to
water safety, La, identification and registration of
motorboats (subchapter B), required safety equipment (sub-
chapter C), prohibitions on dangerous boating activity
(subchapter D), and enforcement and penalty provisions (sub-
chapter E). We believe that the ordinance conforms, at
least on its face, to section 31.092(a): finding it
necessary for the public safety, the governing body of an
incorporated town has enacted an ordinance, with respect to
public water within its corporate limits, designating
certain areas as "otherwise restricted."
Nor do we believe that the ordinance conflicts with
section 77.041. Chapter 77 generally regulates the
possession, catching, weighing and sale of shrimp, including
restrictions on the size of nets and the size of the mesh.
Section 77.041 provides general authorization to use
equipment on licensed commercial shrimp boats, as follows:
All shrimp trawls and fishing gear, except
fishnets or seines, with which a boat having
a commercial shrimp boat license issued under
P. 5797
Mr. Charles D. Travis - Page 3 (JM-1106)
this subchapter is equipped may. .be used B,D=
le the u is otherwise nrohibited bv law .
(z:hasis :zded.)
Parks & Wild. Code 0 77.041.
Webster's New Collegiate Dictionary defines lqtrawl,"
when used as a noun, as "a large conical net dragged along
the sea bottom in gathering fish or other marine life."
While granting general authority to use trawls or nets
on licensed shrimp boats, the legislature chose to except
use that is "otherwise prohibited by law." The legislature
could have excepted use that is otherwise prohibited by
"this chapter," "this title," or "this code." See Citv of
Stamford v. Ballard 345 S.W.2d 596, 600 (Tex. Civ. App. -
Eastland 1960, no whit) (legislature could have prohibited
other burdens rather than other "like burdens"). By using
the general term, *'law," the legislature clearly intended to
except use prohibited by any law, including a municipal
ordinance enacted under the authority granted in section
31.092(a). &R Choice v. Citv of Dallas, 210 S.W. 753 (Tex.
Civ. App. - Amarillo 1919, no writ). On the basis of the
information furnished us, the particular ordinance *
question is not in conflict with section 77.041 of the Parg
and Wildlife Code. We do not reach any constitutional issue
here.
SUMMARY
The Village of Tiki Island is authorized
to enact an ordinance prohibiting the towing
of nets in certain areas of public water
within the corporate limits of the village.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
P. 5798
Mr. Charles D. Travis - Page 4 (JM-1106)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
Pa 5799