December 22, 1948.
Hon. Howard D. Dodgen, Executive Secretary
Game, Fish and Oyster Commission
Austin, Texas
Opinion No, V-751.
Re: The authority of the Game,
Fish and Oyster Commission
to regulate the taking and
the possession limit of min-
nows from Possum Kingdom
Lake.
Dear Mr. Dodgen:
You have requested an opinion with reference to
the above-captioned subject, in the following respects:
"At the regular,quarterly meeting of
the Game, Fish and Oyster Commission held
in Austin, Thursday, October 14, 194b, a
resolution was adopted, under the authority
of H. B, 1049, 47th Legislature, page 839,
chapter 515, whereby a previous resolution
adopted by said Commission was amended.
"The resolution referred to, among
other things, prohibited the taking of
minnows, by any means and at any time,from
the waters of Possum Kingdom Lake. The
more recent amendment referred to seeks
to relax the previous regulation so as to
allow the use of common minnow seines of
not more than ten feet in length, in the
taking of minnows from Possum Kingdom Lake,
and to further restrict the number of min-
noawhich may be taken from said Lake and
which may be possessed.
Ite o . We, therefore, respectfully re-
quest your opinion on the following ques-
tions:
Hon. Howard D. Dodgen, Page 2, v-751.
"1. Does the Game, Fish and Oys-
ter Commission have authority to regu-
late or prescribe the means and methods
for taking minnows from Possum Kingdom
Lake?
“2 * Does the Game, Fish and Oys-
ter Commission have authority to limit
the number of minnows to be taken and
possessed from such Lake?"
Your inquiry requires the consideration of
whether the statute authorized the Commission to pro-
mulgate the rule in question initFally, and thereafter
whether such authority *as repealed by subsequent leg-
islation.
We first dispose of the question as to whether
Acts 1941 47th Leg., Ch. 515, Page 839, codified es Art.
978j(notej, V. P. C., authorizes the Commission to amend
a rule previously adopted by it with reference to the tak-
ing of minnows from Possum Kingdom lake.
The pertinent provisions of the foregoing Act
are:
"Section 1. It shall be unlawful
to take, catch, or attempt to take,
catch, or have in possession, OP dis-
pose of, any fish from the waters of
the lake impounded by Possum Kingdom
Dam, which Dam is situated in Palo
Pinto County, except when same may be
permitted in regulations promulgated
in accordance with the directions given
in this Act.
“Sec. 2. It shall be the duty of
the Game, Fish and Oyster Commlssion im-
medlatelg, and thereafter from time to
time, to make studies of the supply of
fish and each species of fish In the body
of water impounded by Possum Kingdom Dam;
to determine the food supply available
therein for the various fishes; the rela-
tionship of the species of fish one to
the other; the spawning habits and rate
of reproduction of the different species
.: .
Hon. Howard D. Dodgen, Page 3, v-751.
of fish in this body of water; end on the
basis of this information to equitably
permit the taking of any species of fish
from said body of water at such time or
seesons, and in such numbers and sizes,
and with such tackle or gear es will not
Interfere with the conservation of fish
in said body of water in the public ln-
terest. It shall also be the duty of the
Game, Fish and Oyster Commission to pro-
vide regulations that will permit a reason-
able harvest of the annual increase of any
end all species of fish in the lake waters
impounded by Possum Kingdom Dam with due
regard to the future supply of such fish
and the maximum public recreational bene-
fit therefrom.
"Sec. 4, Any regulation permitting
the taking of fish or permitting the use
of certain gear or tackle or providing an
open season for taking fish on the waters
impounded by Possum Kingdom Dam made in
accordance with the provisions of this Act
shall remain in full force and effect un-
til same is suspended or emendep, end any
suspension or amendment of a regulation
shall be done after the same manner and
with the same approval required for the
promulgation of a regulation made here-
under,
"Sec. 5. Any person who fishes, OP
attempts to take or catch fish, or has
any fish in his possession, or disposes
or attempts to dispose of same, or who
uses any tackle or gear for taking or et-
tempting to take or catch fish in any of
the waters impounded by Possum Kingdom
Dam, except in accordance with permissive
regulations Issued by the Game, Fish and
Oyster Commission of the State of Texas
and approved by the Board of Directors of
the Brazos River Conservation and Reclame-
tlon District end then in effect, OP with-
out having in his possession the license
required of him by this Act, shall be deem-
ed guilty of a misdemeanor end upon copvic-
tlon shall be fined in a sum not less than
Ten Dollars ( lo), nor more than Two Hun-
dred Dollars $200).
Hon. Howard D. Dodgen, Page 4, V-751.
“Set, 7. All laws or parts of laws
of this State which to any degree permit
fishing in Possum Kingdom Lake be and the
seme are hereby repealed, and all other
fishing laws of this State, in so far as
they conflict with any provision of this
Act, be end the same are hereby repealed.”
Under authority granted the Commission by the
foregoing provlslons, the Commission previously promul-
gated a rule closing the waters of Possum Kingdom Lake
to the taking of minnows. You now wish, by amendment,
to relax such rule by permitting the taking of minnows
through the use of a minnow seine not to exceed ten feet
in length, end not to exceed fifty minnows in possession.
We think that minnows, which are unquestionably
fish, come within the regulatory provisions of Section 2
of the Act, which, under the clear language of the Act,
grants authority to the Commission to regulate the “tackle
or gear” with which fish may be taken from Possum Kingdom
Lake, end the possession limit thereof. Regulating the
length of a minnow seine would come within such prescribed
authority.
The authority of the Commission to amend a rule
previously adopted by it, with respect to the-n of
fish from Possum Kingdom Lake, is found in Section & of
the Act.
The second consideration requires the determin-
ation of whether subsequent legislation has repealed the
authority of the Commission to regulate the taking of min-
nows from Possum Kingdom Lake.
In this regard, you particularly refer us to
the provisions of Acts 49th Leg., 1945, Ch. 9, Page 13,
codified es Art. 9276, V. P. C., the pertinent provisions
of vhich are:
“Section 1. There shall be no closed
season OF period of time when it shall be
unlawful to take, catch or retain fresh
water fish by the use of ordinary hook end
line OP artificial lures. Other devices,
the use of which 1s permitted by law, mey
be used for the purpose of taking fresh
water fish et any time of the year, but
only In compliance tiithsuch other restric-
tions as are placed on their use by the laws
of this state.
Bon. Howard D. Dodgen, Page 5, v-751.
"Set o 2.. It shall be unlawful for
any person to take from public fresh we-
ters,end retain, or place in any contain-
er, boat, creel, live-box OP on any fish-
stringer any large-mouth black bass, small-
mouth black bass, spotted bass, or any
sub-species of large-mouth black bass,
smell-mouth black bass, spotted bass, that
is less than seven (7) inches In length.
'Sec. 3* It shall be unlavful for
any person In any one day to catch end re-
tain, or to place on or In any device OP
container for holding same while he is
fishing, any fish that is taken from the
public fresh waters of this state in ex-
cess of the following limits: large-
mouth black bass,small-mouth black bass,
spotted bass, or any sub-species of the
seme, singly or in the aggregate, fifteen
(151, of which not more than ten (10)
shall be of greater length than eleven
(11) Inches; white bass, twenty-five (25);
blue catfish, channel catfish and yellow
catfish, singly or In the aggregate,twenty-
five 25 ; crappie or white perch, twentg-
five t251 D
“Sec. 4. Any person who violates any
provisions of this Act, upon conviction
shall be fined In a sum not less than Five
&L,O;L Dollars, nor more than Fifty ($50.00)
“Sec. 5. All laws or parts of laws,
local, general, or speciel,insofar as they
provide a closed season or period of time
when It Is unlawful to take or catch fish
or to use artificial lures, or insofar as
they provide a size limit, possession limit,
or daily catch limit, or otherwise conflict
with any provision of this Act, shall be end
the same are hereby repealed; except that
nothing herein contained shall repeal Cha ter
213, House Bill NO. 654, Regular Session,g8th
Legislature, or regulations made thereunder
to govern the taking of fish in Lake Texoma,
which Is the body of wtter impounded by the
dam at Denlson, Texas.
Hon. Howard D. Dodgen, Page 6, V-751.
Sectlon 1 of the foregoing Act, as quoted
above, does not repeal the authority of the Commis-
sion to promulgate regulations prescribing the means
and methods with which fish may be taken from Possum
Kingdom Lake, except to the extent that the Commission
may not close the fishing season on Possum Kingdom Lake
at any time during the year for the taking, catching
or retaining of fresh water fish "by the use of ordin-
ary hook and line or artificial lures.l' Section 1
further provides specifically that:
II
. . . Other devices, the use of
which is permitted by law, may be used
for the purpose of taking fresh water
fish at any tFme of the year, but only
in compliance with such other restric-
tions as are placed on their use by the
laws of this state."
This language would indicate that the Commis-
sion is not authorized to close any portion of the year
to the taking of minnows by the use of a minnow seine
from the waters of Possum Kingdom Lake, but no further
restriction is imposed on the regulatory authority of
the Commission pertaining to the length of minnow seines.
With reference to the authority of the Commls-
sion to exact,'by proper regulation, a possession limit
on minnows taken from Possum Kingdom Lake, it will be
observed that Art. 927a, V. P. C., quoted above, prescribes
a pcesession l'imiton large-mouth black bass, small-mouth
black bass, spotted bass, white bass, blue catfish, chan-
nel catfish, yellow catfish and crappie. No imposition of
a possession limit on minnows is found in the general pos-
session statute as noted. Therefore, the provisions of
Art. 927a, V. P. C., are not incompatible with the imposi-
tion of a possession limit by the Game, Fish and Oyster
Commission, by a proper regulation complying with the pro-
visions as to notice, on minnows taken from the waters of
opossum Kingdom Lske.
No inquiry having been made as to the constltu-
tlonalitg of Acts 47th Leg., 1941, Ch. 515, Page 839, we
express no opinion thereon.
Ron, Howard D, Dodgen, Page 7, V-751.
SUMMARY
The Game, Fish and Oyster Commis-
sion Is authorized under the provisions
of Acts 47th Leg., 1941, Ch, 515, Page
839, to amend a regulation heretofore
adopted by it, in order to prescribe the
means and methods with which rbinnowsmay
be taken from the waters of Possum iiing-
dom Lake and to set a possession limit
on same,
Yours very truly
ATTORIVEYGENERAL OF TEXAS
APPROVED:
DJC:jmc
Untitled Texas Attorney General Opinion
Combined Opinion