HE NEY GEM
OF TEXAS
Honorable Clayton T. Garrison Opinion No. H- 92
Executive Director
Texas Parks & Wildlife Department Re: Status of Galveston
John H. Reagan Building Ship Channel under
Austin, Texas 78701 Shrimp Conservation
A,ct, Article 407513,
Dear Mr. Garrison: V.T.C.S.
Your recent letter to this office states as follows:
“Section 6 of the Texas Shrimp Conservation
Act, Art. 4075b, V.A. T.S., governs the taking of
shrimp in the inside coastal waters of the State of
Texas. Section 6(b) of the Act provides that it shall
be unlawful for any person to take or catch or attempt
to take or catch, shrimp of any size or species within
the natural or man-made passes leading from the
inside waters to the outside waters of this State.
“The Galveston Ship Channel is situated between
Galveston Island and Pelican Island as indicated on
the attached map. At one time this channel was dredged
and channel markers were maintained for boat traffic
to and from West Galveston Bay and the Gulf of Maxico.
At the present time it is not maintained. Another channel
has been constructed and is maintained through the nor-
thern part of Pelican Island. At certain times of the
yea=, especially during the spring bay open season,
there is a great influx of small shrimp into this old
channel area. A 300 pound daily limit is set for ‘,a
commercia~l bay shriinp boat operator’ during the entire year.
At the time of the shrimp migration through the Galveston
Ship Channel it becomes extremely easy for any and all
commercial shrimp boats working such channel to exceed
the daily limits.
p. 424
Honorable Clayton T. Garrison, page 2 (H-92)
“Given the above information, the following
questions are submitted for your consideration:
“1. Is the Galveston Ship Channel a pass within
the meaning of Section 6(b) of the Shrimp Conser-
vation Act, Art. 4075b, V.A. T.S.?
“2. In the event you find the Galveston Ship
Channel is not a pass, is the channel to be con-
sidered a major bay for purposes of Section 6 of
the Shrimp Conservation Act, Art. 4075b, V. A. T. S. 7 ”
The purpose of the Texas Shrimp Conservation Act is declared in 5 1
of Article 4075b as follows: “[I]t is hereby declared by the Legislature of
the State of Texas to be the public policy of this State that the shrimp resources
of the State of Texas be conserved and protected from depletion and waste. . . . ”
Section 6b provides specifically as follows:
“(b) It shall be unlawful for any person, at any
time, to take or catch,. or to attempt to take or catch,
shrimp of any size or species within the natural or
man-made passes leading from the inside waters to
the outside waters of this State. ”
While the Texas Shrimp Conservation Act, supra, fails to define the
term “pass”, Texas Courts have construed the term in a similar factual and
statutory context. In Gibson V. Sterrett, 144 S. W. 1189 (Tex. Civ. App., San
Antonio, 1912, no writ), the plaintiff sought to enjoin the Game and Fish
Commission from arresting him for violating a Penal Code Provision which
prohibited the taking of fish except by hook and line in all water within one
mile of either side of all passes leading from the Texas coast waters into
the Gulf of Mexico. Plaintiff argued that the “pass”, in which fishing was
prohibited, was restricted to that part of the channel which was bounded on
either side by coastal lands. The court relied on testimony which showed a
defined channel, through which tide-water flowed and ebbed, pleading for sev-
eral miles from the interior end of the strait separating Padre and Mustang
p. 425
Honorable Clayton T. Garrison, page 3 (H-92)
Islands (Corpus Christi Pass) to Corpus Christi Bay. Finding that the
purpose of the enactment was “to enable fish at all times to pass to and
from the coast waters of the State without being molested by the character
of fishing prohibited, ” the Court held that the channel extending from the
strait between the is,lands to Corpus Christi Bay was as much a part of
the pass leading from such coast water to the Gulf as the strait itself. The
court concluded:
“The construction of the word ‘pass’ insisted
by appellant would defeat the evident purpose of the
statute. ‘The purpose the Legislature had in view was
to enable fish to have free access to and from the coast
waters, and if they are allowed to be intercepted in or
near the channel aforesaid the purpose would be defeated.
In arriving at the sense of the term ‘all passes’, the pur-
pose it had in view must be consulted. ”
Fol .lowing the holding in Gibson v. Sterrett, supra, the Court of
Criminal A,ppeals in Gavinia. v. State, 145 S. W. 594, 596 (Tex. Crim. 1912)
held that “the pass intended by the legislative act was certainly the entire
length of the channel from the bay to the gu,lf. ” In A,ttorney General Opinion
No. V-119,1 (1951), this office relied on Gibson, supra, and Gavinia, supra,
in recognizing that the Legislature intended to protect the free passage of
fish in inside coastal waters to and from outside coastal waters.
A similar construction of the term “pass”, as used in Section 6(b)
of the Texas Shrimp Conservation Act, supra, is warranted here where
the manifest purpose of the Act, supra, as expressed in $1, is the pro-
tection and conservation of shrimp.
That the Galveston Ship Channel is no longer maintained i s not
material to the question of whether the channel is a “pass”. Costa1 tide-
waters flow and ebb through the channel; shrimp and other esturine and
marine wildlife migrate through the channel to and from the Gulf; the
Legislature, in enacting the Texas Shrimp Conservation Act, intended
to conserve and protect the shrimp resources of the State; and, as pre-
viously construed by Texas courts, the term “pass” is not restricted to
p. 426
Honorable C,layton T. Garrison, page 4 (H-92)
that outer strait intersecting the Gulf, but includes a channel leading
from an inner strait far into the bay itself. All of this clearly indicates
that the Galveston Ship Channel is a “pass” within the meaning of $ 6(b)
of the Texas Shrimp Conservation Act.
Our affirmative response to your first question renders your second
question moot.
SUMMARY
The Galveston Ship Channel is a “pass” within
the meaning of 5 6(b) of the Texas Shrimp Conservation
A,ct, Texas Revised Civil Statutes, and Article 4075b,
1966.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 427