T~~~A~ORNEYGENE~L
OF TEXAS
AUSTIN 11. ‘Jk=e
FVILL WILSON
AITORNEYCENERAJ.
July 3, 1957’
“
i’ : Texas Game’and Fish Commlsslea .
,‘. Austin, Texar
Opiales No. WW-151.
Re: Jurisdiction of the Gsti
and Fish Commlsslon’with
z%spcct to the removal
of “non-merchantable”
material utiderlyiag pub-
lic waters.
Gentlemen:
B? letter dated April 4, 1957, you state that the corn-
mission ‘anticipator being faced with the decision a8 to
whcthcp er not It has any official jurisdiction in the matter
relating to the construction ef a navigable channel la Gal-
veston Bay .‘I While you now and In the paat have arserted juri~-
diction in the bby arcaa with rerrpcct to the commercial salt
of aand, shell, gravel bad marl; you adviac that you have
neither exercised n,or aeeerted jurisdiction with respect to
dredging 5.a coancction~wlth a project not involving the com-
mercial eale of the materials mentioned. Yeu conclude with
;a requcrt for an opinion from this office “ag to whether the
.,, ‘(iam and Fish Commiseion is charged by law with lsaulag pe,r-
mltr for the removal or dlclplacement of non-merchantable
material” from the bay .*
Prior to 1911 the publia generally was fret, without
control’ or supervision, to remove mudahcll, sand, gravel and
other materials from the bottoms, underlying the public water6
of thlr State; Gore v. City of Rosenberg, 115 S.W. 663, (Tex.
Civ. App., 19097 no writ hirtory).
.S’
It Is fairly inferable that the Gore case, Bupra, fc-
cused the lttcntien of the Legislature mhe situation then
exletieg, for that body in 1911 enacted the first laws de-
rigmed-for the protection of the bottoms undcrlyln the pub-
llo.waterr and the tiarlae life contained therein. 7S.B. 348,
Gen. L&wr, 32nd Leg., ch. 68, p. 1.18).
The basic enactment, although &mended several tlmce
im minor ~8~6, ia the lgll~Speclal See8to8, ia 1919, la 1925,
and firally la 1951, has for al.1 purposes material to the
- .
I .
Texas Gemc and Fish Commission, page 2 (WW-151)
present inquiry remained unchanged. The pertinent pertions
thereof pc now codified as Articles 4051, 4052, and 4053,
V.A.C.S. It ia unnecessary te quote verbatim all of the
provisions of these atatutea. Suffice It to say that Article
4051 pravidea that: “All of the ielamde, reefs, bars, lakes
aad bays . . . tegcther.with all ef the marl and sand of
oommeralal value, etnd all the shelle, mudahell or gravel ef
whatioevor kind” were included within the provisiona of the
Act and were thereby “placed,under the maRagemcnt, control
aad protection of the Commiesioner.” Artlole 4052 vests in
fhe Commissioner “all the powers ard ,&uthority aeoesaary,to
aarFg’imtd effect the provleioas” if the Aot and direct8 that
the Commleeloaer shall have “full charge and disaretion over
all matters pertailrlmg to the sale, the taking, the oarrying
away or disturbin@ of all marl, rard or gravel of aommeroial
value; a8d all gravel and shells or mudrhell and oyster beds
a8d tholr protootiom from froo uee and u8lawful disturbing or
approppI8tIon of same” exaept aa provldod In the Aot.
Fiially, germane to the questiom under aonslderatloo~,
the Legialaturc prescribed ii Artiale 4053 the prooedure amd
comditlers under which persons mey purohaee~marl amd rand of
aommeroial value “or otherwise operatie”’ In the- pubU.0 landa
and waters ilsoluded withFa the provielona of the,Aot. Thw
PrOVi~miQni8 made for an applioatiom therefor‘tio tho Commir-
eiombr and,if, after irvestigatloa, that agenoy I+ satisfied
nthat the taking, carrylag away or disturbing of the marl,
:graeel, aand, ehcll or mudshell . . . would not damage or
: ~imjutiiounly affeot” the waters aed land lnoluded in the Act
~f@mer‘ohange or indurioualy affeot amy ourremt thet would
affoat navigation a permit may be labued after the applioaQt
.,*shall have complied with all requirement8 derorlbed by the
Commlesioner. ‘2
From a reading of the pertinent etatutee, It is Plain
that $he paramount intention :of the LcglelatUrc was and le. the
I proCeotio8 of oyster beds, fish ahd fish breeding grouada.
Tm&, provision ia alae made ,for the commcrolal dlsposltlon
if $ho m8teriUa on the bettoms and shorts of the area8 under
aonbideNtlo8. Thlr ditipoabtlon, however, wisely was placed
in the atate agemy most familiar with and ataffod with per-
sonnel trained for the protcation of the wat?r~s.a8d marime
life affected th6reby. It le sigrifiaamt, tool: that ArtSale
4051 refer@ to material8 “of, aommsroial value and materlalb
*if whatsoever kimd”; Artlale 4052 apecifles, in addition-to
aoommcrcial materiaW, t$M*t.the Commlsrboaer rhall pr6teot
from free us4 er unlawful dihturbiu& all gravel and ehells
or mud8hell ana oyrtor$eds”; while Article 4053 pertaime to
perrone desiring te pt&hare “or otherwise operate in amy of
the water@ or area in .,quostioa.
* .
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*.
Texas Game and Fish Commission, page 4 (WW-151)
JRR:bk
APPROVED:
OPI~OI! CCHMITTEE
H. Grady Chandler, Chairman
..I
1.
The office of Game, Fish and Oyster Commlssloacr was abo-
lished and In its stead~and with Its powers was created the
Game, Fish and Oyster CommisiHon. Acts 1929, 41st Leg.';' ch.
118, p. 265. The offlck of Game, Fl#h and Oyster Cemmisblon
was abolished aad In Its atcad aad with its powers was created
a Gamh and Fish Commiatilon. A&8, 1951, 52nd Leg., p. 850,~
476, ccdiflcd as Article gi'8f-3, Sec. 1, V.P.C. Heacc where
the statutes under consideration use the word "Commissioner",
the agency affected is the Game and Fi6h Commission.
2Thc priclse question under ciraldcratlon has rot been adju-
dicated. Por a aoaitructlon, of these statutes with icspect
ta conmcralal activity, set Columbia-Southern ChcmZcal-Corp.
v.~Corpus Christi Shtill Com@an 297 S.W. 2d 191 (San Antonio
Clv. APP., 195b, 80 writ histm$). The opinion of the ccurt
is nclthe% lsceislrteat with nor corroborative of the views
cxprcrscd herein.
.
. -
Texas Game and Fish Commission, page 3 (WW-151)
As above indicated, the original act of 1911 hae been
brought forward into present law with no substantial change
as far as the present question is concerned. It is interesting
to note that the emergency clause in that Act supports the
views expressed herein. Such clause provides in part
“The fact that large quantltles of
the marl, sand and shells or mudshell on
the coast are he!ny taken and carrl.ed away
dally’ and the oyster, beds and. fish breeding
waters are being disturbed and ruined, and
there being no statute protecting same from
wanton destructlen creates an emergency . . .”
10 S.B. 348 Gcn. Laws, 32nd Leg.,
I”,;;; p.‘118, ch:&.)
WC thiaK it beyond serious question that conservation
and protccticn ef marine life and breeding grounds was and Is
the chief purpose of, the Actunder consideration. Cammerclal
aalca are incident thereto.
Should it be argued that the protcctlcn of the marine
life and breeding areas was net the main and chief purpose
of the Act, such a goal, nevertheless was at the very least
a specified objective thereof. Since ‘non-commercial dredging”
would have precisely the same effect in thio respect aa ‘Icom-
mcrolal dredging” ,it followa that “nor-commercial” activity
or lpcratlon in the area in question ia within the term8 of
the Act.
We, therefore, are of the opinion, and so advise, that
you legally have the jurisdiction and responsibility for the
issuance of permits to dredge the unpatented lands underlying
public water8 in this State regardless of the purpose, com-
mercial or otherwiao, ef such dredging.
SUMMARY
e-m
The Game and Fish Commission is charged
by iaw with the determination and the issuance
.’ of permits for the removal or dlsplacemert of
aoa-mcrchantabl6 material8 from the unpatented
land& underlying the public waters of this State.
Very truly youra,
WILL WILSON
Attorney General of Tcxaa