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Srptember 11, 1972
Bon. Clayton T. Garrison Opinion No. M- 1210
Executive Director
Texas Parks & Wildlife Dept. Re: Public's right to fish
John H. Reagan Bldg. in newly created water-
Austin,,Texas 78701 ways along the Texas
Coast, and related
Dear Mr. Garrison: questions?
In your request for an opinion concerning the above matter,
your letter states the following;
"Article 4026, Texas Civil Statutes reads:
All aquatic animal life contained in
public rivers',lagoons, bayous, lakes,
creeks, bays and inlets in this state
and all that part of the Gulf of Mexico
within the jurisdiction of this state
are considered to be the property of
the State of Texas. . .
"The rapid growth of private developments adjacent
to the Texas coast has raised a number of questions
as to the Department's jurisdiction and responsi-
bilities in these areas. One hazy area involves
the dredging of canals from our bays into private
property where summer homes are built on the im-
proved elevated lots. These canals are affected
by the ebb and flow of the tides once constructed.
During severe cold spells trout and redfish seek
deeper warm water offered by the canals and boat
basins. Many of the private developments join
bays closed to seines and nets by state law. If
the canals are not subject to game and fish regu-
lations, large numbers of fish that are the property
of the State of Texas and utilize these areas could
be harvested by seines or nets, and these actions
would appear to circumvent the intent of the sta-
tutes. With these facts in mind, please consider
the following questions.
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Honorable Clayton T. Garrison, Page 2, (M-1210)
Question No.
-- 1
"Under the situation as stated above, should the
fish in these canals be considered state property
as defined by Article 4026, Texas Civil Statutes
and under the jurisdiction of the Parks and Wild-
life Department?
Question No.
-- 2
"Do the state fishing and water safety laws apply
in the waters of these canals?
Question No. 3
"If you find that the fish in these canals are
public property, would a member of the public be
in violation of Article 1377b, Texas Penal Code
(Trespass Law), by fishing or boating therein?
The Legislature has declared by statute that the waters
of every Texas flowing river or natural stream and of all lakes
bays or arms of the Gulf of Mexico are the property of the
State. Section 5.021(a), Texas Water Code.
The Legislature, in enacting Article 4026, Vernon's Civil
Statutes, has provided that all the fish and other aquatic
animal life contained in the fresh water, rivers, creeks, etc.
of the State are the property of the people of the state: that
all of the public rivers, bayous, lakes, etc. in the state, to-
gether with their beds and all the products thereof, shall con-
tinue and remain the.property of the State of Texas, and that,
insofar as the use of such water and beds shall relate to the
taking or conservation of~fish, oyster, etc., they shall be
under the control of the Game, Fish and Oyster Commission, now
represented by the Parks and Wildlife Department. (See Art.
978f 3a, V.P.C.) Diversion Lake Club v. Heath, 86 S.W.Zd 441
(Tex.Sup. 1935). So long as not reduced to possession, the
ownership of water and fish are held to be in trust for the
people of the state. Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.
2d 588 (1948); Goldsmith Powell v. State, 159 S.W.Zd 534 (Tex.
CiV.App. 1942, error ref.); 36A C.J.S. 499, Fish, Sec. 2.
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Honorable Clayton T. Garrison, Page 3, (M-1210)
Therefore, the state has the widest powers over the taking
and handling of fish within its borders. Gulf Fisheries Co.
v. Darrouset, 17 F.2d 374 (S.D. Tex. 1926), and the power of the
state to regulate and control the taking of fish has been said
to be absolute. Sterret v. Gibson, 168 S.W. 16 (Tex.Civ.App.
1914, no writ); Poon v. Miller, 234 S.W. 573 (Tex.Civ.App. 1921,
no writ); 36A C.J.S. 535, Fish, Sec. 26a.
However, generally speaking, private waters are not subject
to the regulatory powers of the state. The term "private" is
not self-explanatory and the question of what are "private" and
"public" waters for the purpose of application of the Fish and
Game regulatory statutes may present questions for decision from
time to time.
The Courts generally recognize that a body of water is not
private so as to be exempted from regulation merely because the
soil underneath the water is privately owned or because it is
surrounded by land privately owned. The main test appears to
be whether the body of water involved is connected either con-
tinuously or at intervals with other bodies of water so as to
permit the fish to move to and from the two places, or whether
the body of water is entirely isolated. Thus, if connected with
other waters at all times or at intervals, the courts have main-
tained in most cases that the public has an interest in the fish
therein and therefore the state statutes regulating the time and
manner of fishing in waters within the state will apply to those
bodies of water. Article 4026, V.C.S.; Taylor Fishing Club v.
Hammett, 88 S.W.Zd 127 (Tex.Civ.App. 1935 error dism.); 15 A.L.R.
d 154, Fish and Fisheries, S9 (1949).
In view of the fact situation stated in your letter, that
once constructed, the newly created canals or waterways are
effected by the ebb and flow of the tides, and that they are
continuously connected with the tidal waters on the Coast of
Texas, so as to permit fish to move to and from these waters,
it is our opinion that the water and fish in these canals or
waterways are property of the state as defined by Section 5.021
(a), Texas Water Code, and Article 4026, and therefore are under
the jurisdiction, regulation, and control of the Parks and Wild-
life Department. Article 978f-3a, V.P.C.
This authority also extends to the regulation of water
safety provided for in Article 1722(a), Vernon's Penal Code,
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Honorable Clayton T. Garrison, Page 4, (M-1210)
in that the act clearly authorizes the Parks and Wildlife Depart-
ment to control water safety on all public waters within the
territorial limits of the state.
Your third question, whether a member of the public would
be in violation of the trespass law of the state, Article 1377
(b,),Texas Penal Code, by fishing and boating therein, will now
be considered.
As noted above, the public has the general right to fish
in public streams and waters subject to regulations imposed by
the state. 25 Tex.Jur. Zd 374, Fish and Fisheries, Sec. 1.
However, the right of fishing in public or in navigable waters
in Texas does not permit a trespass on the lands of another.
Diversion.Lake Club v. Heath, supra; Reed v. State, 175 S.W.2d
m3 (Tex.Civ.App. 1943, no writ). Furthermore, the Legislature
is without power to confer on anyone the right to go on the lands
of another to catch fish~in waters thereon. Smith v. Godart,
295 S.W.Zd 211 (Tex.Civ.App. 1927, no writ). The public has no
right to enter on the private property of another for the purpose
of catching fish, although the fish until caught may belong to
the public and be subject to regulation by the state. Taylor
Fishing Club v. Hammett, supra.
We will assume from the fact situation in your letter that
the public, in asserting a right to fish, has access to these
canals or waterways without trespass on adjoining lands, and
that the issue to be decided is whether the owner of the fee in
the soil not covered by public waters at the time of its original
grant but which subsequently becomes submerged and subject to
the ebb and flow of the tides making it part of the navigable
waters of the state, is entitled to the exclusive enjoyment of
all the rights incident to ownership, including the exclusive
right of fishing in the waters covering his land.
In Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d
441 (193%. 47 A.L.R.2d 399 , the Suoreme Court held that the
right of fishery follows ownership of the bed of streams, and
since the stream there in question was owned by the state, the
public had the right of fishery therein. This case establishes
the proposition that the public has the legal right to fish in
public waters over private lands. The courts of a number of
other states have reached similar holdings. See Annotation in
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Honorable Clayton T. Garrison, Page 5, (M-1210)
57 A.L.R.Zd 573, et seq. In our view, the law is now settled on
this point, and the Court of Civil Appeals holding in Fisher V.
Barber, 21 S.W.2d 569 (Tex.Civ.App. 1329, no writ), to the extent
thatit may conflict, is no longer the law.
The water that fills these newly created canals and water-
ways and the aquatic life contained therein originates from the
public waters of the bays, inlets, and arms, of the Gulf of
Mexico, and the lands and bottoms underlying the bays and other
areas along the Gulf of Mexico within the tide water lands are
property of the State of Texas. Article 4026; Butler v. Sadler,
399 S.W.2d 411 (Tex.Civ.App. 1966, error ref., n.r.e.)
Therefore, assuming that the public has access to these
canals and waterways without trespassing on adjoining lands,
it is our opinion that the public's right of fishing and boat-
ing extends to these newly created canals or navigable water-
ways and in exercising the right the public will commit no
trespass.
However, the provisions of Article 1377b, Texas Penal Code,
are applicable regarding the privately owned banks. See the
Diversion Lake case, p. 447.
SUMMARY
The water and fish in the newly created
canals or waterways, created by dredging from
state.bays into and over private property, are
property of the State as defined by Section
5.021(a), Texas Water Code, and Article 4026,
Vernon's Civil Statutes, and therefore are
under the jurisdiction, regulation, and con-
trol of the Parks and Wildlife Department.
Article 978f-3a, Vernon's Penal Code.
This authority extends to the regulation
of water safety provided for in Article 1722
(a), Vernon's Penal Code, in that the act
authorizes the Parks and Wildlife Department
to control water safety on all public waters
within the territorial limits of the state.
Assuming that the public has access to
these newly created canals and waterways
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Honorable Clayton T. Garrison, Page 6, (M-1210)
without trespassing on adjoining lands,
the public right of fishing and boating
extends to the newly created canals or
navigable waterways and in exercising the
right the public will no trespass.
very tr/uly,
Prepared by Guy C. Fisher
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Vince Taylor
Houghton Brownlee
Bill Campbell'
Jay Floyd
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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