Ronopable Murrell L. Buckner, Chairman
Game, Fish and Oyster Commission
Austin, Texas
Dear Sir t Opinion No. O-4307
Re: Should the persons who fish as
described be licensed as “com-
mercial fishermen’?
From your letter of recent date we quote the follow-
ing:
“A number of fishermen along the Texas Coast
own1 their own boats, together with their crews,
go in3 o the Gulf of Mexico beyond the territorial
waters of the State of Texas to catch red snapper,
and, upon completing their catch return to.ports
along the coast and sell the fish caught.
‘Club-Section (a) of Section 1 of Article 93’ra
ddfinee d ‘commercial fisherman’ to be ‘any per-
son who takes fish or oysters or shrimp or other
edible aquatlo products, porn the ,waters of t
sfrlsltp, for pay, or for the purpose of sale, b?
ter or exohange,’ whloh would seem to limit the
taking of aquatio products from the waters of
this State, whioh fact is not present in the
statement of facts hereinabove made, however, Sec-
tlon 11 of said Artl.ole 934a reads in part as
ro11ows I ‘Provided that no person shall bring
into this State any aquatio produots and in this
State offer .them for sale without procuring the
lioense required for such transaction by a dealer
in this State, and the fact that suoh aquatic
products were oaught in another State shall not
entitle -the person claiming to have caught them
to sell ~same ln this State as a oommerolal flsh-
erman.. f
“We contend that that portion of Section 11
of the Aot, hereinabove quoted, would oblige
those who fish as above set out to be lioensed a?
‘oommerclal fishermen’. The fisherman concerned
oontend, however, that a part of Section 11 of
Honorable Murrell L. Buckner, Page 2 O-4307
sald Act hereinabove quoted and reading as fol-
lows: 'and the fact that such aquatic products
were caught in another State shall not entitle
the person claiming to have caught them to sell
same in this State as commercial fishermen,'
limits the construction contended for by the
Commission to products caught in the waters of
another State and not in the Gulf of Mexico
beyond the territorial jurisdiction of this or
any other State."
Your reference to Article 934a of the Penal Code
of Texas 1s to Vernon's Annotated Penal Code, and the Legis-
lation was originally enacted in 1933 by the 43rd Leglsla-
ture.' See Acts 1933, 1st C.,S., ch. 29, p. 85. Amendments
were adopted In 1934 and 1935. See Acts 1934, 3rd C. S.,
ch. 40, p. 83 and Acts 1935, Reg. Sess., ch. 345, p. 808.
Your reference to sub-section (a) of Section 1 is correct,
but that portion of the act referred to in your letter as
Section 11 is really sub.-section11 of Section 3 of said
Article 934a.
We think it pertinent to quote in full the two sub-
sections under consideration. Section 1 defines a "commer-
cial fisherman" as follows:
"(a) A 'Commercial Fisherman1 Is any per-
son who takes fish or oysters or shrimp or other
edible acquatic oroducts from the waters of this
State, for pay, or for the purpose of sale, bar- .
ter'or exchange."
Sub-section 11 of Section 3 reads as follows:
"11. Place of buslness, as used in thls'A t,
shall include the place where orders for acqua E ic
products are received, or where acquatlc products
are sold, and if sold from a vehicle, the vehicle
on which, ore from which such acquatic products
are sold, shall constitute a place oftbusiness.
The license'shall at all times be publicly dis-
played by the dealer in his place of business SO
as to be easily seen by the public and the em-
ployees of the Game, Fish and Oyster Commission.
And if any acquatic products are transported for
the purpose of sale in any vehicle the license ,re-
quired of such dealer shall be displayed inside of
such vehicle. Provided that no nerson shall bring
into thFs State anv acauatlc nroducts and In this
State offer same for sale without orocurlng the
Honorable Murrell L. Buckner, page 3 0 -4307
license reoulred for such a transaction by a deal-
er in this State. and the fact that such acauatlc
products were caught in another State shall not
entitle the person clalmlnR to have caunht them to
sell same in this State as a commercial fisherman."
‘(Bmphaslsours)
We think that portion of the statute underscored by
us for emphasis 1s susceptible or division; that the first
part contains the broad prohibitory provision that "no
person shall bring Into this State any acquatic products"
Ifi om anv ulace without this State, whether such place con-
stitutes waters of another state or waters beyond the ter-
ritorial jurlsdlctlon of any state) "and In this State of-
fer same for sale without procuring the license required
for such a transaction by a dealer in this State." Under
the.facts stated by you, if the fish were taken wlthln the
territorial jurisdiction of Texas, there could be no argu-
ment but that the statute would require "CommercFal Fish'
ermen's License".
The second portion of the underscored quotation
would seem merely to be tinexample or condition; that is,
that even if the fish or acquatlc products were caught In
another State (with the virtual certainty of having to ob-
tain licenses from such State to legally use lts waters)
that nevertheless such fact should not entitle the person
who caught them "to sell same In this State as a commercial
fisherman."
It is therefore our opinion that the persons men-
tioned in your letter should obtain Commercial Fishermen's
License as described in sub-section 1 of Section 3 of Artl-
cl8 934a, Vernon's Annotated Penal Code.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BW:GO:uc By s/Benjamin Woodall
Assistant
APPROVED JAN 20, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNBYGENBRAL
Approved Opinion Committee By s/BWS Chairman