January 25, 1972
Honorable James U. Cross Opinion No. M-1045
Executive Director
Texas Parks h Wildlife Dept. ne: Authority of Parks &
John H. Reagan Building Wildlife Department
Austin, Texas 78701 under the General.Law
Statutes or the Uniform
Wildlife Regulatory Act
to place special restric-
tions on removal of fish
from public waters in
bass tournaments, and
Dear Mr. Cross: related questions
In your opinion request to this office you ask the
following questions:
1. Does the Parks and Wildlife Department have
authority under the General Game Law Statutes or
under the Uniform Wildlife Regulatory Act (Art.
978j, V.P,C,) to place special restrictions on the
removal of fish from public waters by participants
in bass tournaments?
2. If your answer to question one is affirmative,
under what circumstances or conditions would regu-
lation be legally authorized?
3. Does a bass tournament constitute a lottery
when prizes are given to successful fisherman?
4. When a tournament is conducted on a lake pre-
viously stocked with bass at State expense, can
the Department impose restrictions on participants
in bass tournaments which would not otherwise
apply to single fishermen?
The Legislature has granted the Parks and Wildlife
Commission authority to issue proclamations, rules or
regulations to control the means and method and place and
manner in which wildlife resources may be lawfully taken,
and to issue rules setting forth the most equitable and
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Honorable James U. Cross, page 2 (M-1045)
reasonable privileges in the taking of,such wildlife. ~See
Article 9783-1, Sections 2, 4 and 5 Vernon's Penal Code.
Subject to the restrictions placed upon the commis-
sion by the above statutes, the commission has authority
to control the taking of fish from public waters. We are
unanle to express an opinion as to whether a special re-
striction on the removal of fish from public waters by
participants in bass tournaments would be constitutional
as we do not have sufficient facts to decide this issue.
However, we would express serious doubts about the validity
of any rule or proclamation that arbitrarily imposes re-
strictions on participants in bass tournaments but would
not similarily restrict single fishermen.
It is the opinion of this office that a bass tourna-
ment is not a lottery even though prizes are given to
successful fishermen. One of tne elements needed to con-
stitute a lottery is the award or distribution of the prize
by chance. City of Wink v. Griffith Amusement Company, 100
S.W.Zd 6Y5 (; Pex.Sup. 1936); Smith v. State, 127 zd 297
(Tex.Crim. 193Y); &ice v. SG ste, 156 Tex.Crim. ?;:I 242
S.w.Zd 433 (1951);- State v. Socony Mobil Oil Company, 386
S.W.Zd 169 (Tex.Civ.App. 1964, err. ref., n.r.e.). The
catching of bass involves more skill than luck.
SUMMARY
Under Art. 978j-1, V,P,C,, the Parks and
Wildlife Commission and Department have authority
to control the taking of fish from public waters.
As to whether certain proposed special
restrictions are valid we can not say because
they have not been presented to us.
Prepared by Dunklin Sullivan
Assistant Attorney General
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I .
Honorable James U. Cross, page 3 (M-1045)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
non Darden
Jim Swearingen
Linward Shivers
Glenn Brown
SAM McUANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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