May 12, 1967
Honorable Jack Hightower Opinion No. M- 72
Chairman, Qame & Fish Committee
Texas Senate Re: Validity of that portion
Austin, Texas of Senate Bill 462 of the
60th Legislature providing
for
.. cancellation
_ _ of_ _ per-
mlts to areage shell or
Dear Senator Hightower: mudshell in certain areas.
Your request for an opinion reads as follows:
“Attached are copies of Senate Bill 462
and Committee Substitute for Senate Bill 462,
I would appreciate an opin?.on regarding the
constitutionality of cancellation of permits
which would result from passage of this bill.”
Senate Bill 462 of the 60th Legislature amends Article
4053, Revised Civil Statutes of Texas, 1925, as amended, by
adding a new Section 2A, which provides that no permits to dredge
shell or mudshell in certain areas shall be granted, Subsection
contained in Committee Substitute for Senate Bill 462 reads
~Yfollows:
“(b) Every permit issued before the ef-
fective date of this section is hereby revoked
to the extent that it grants any authority in
conflict with the statutory conditions stated
in Subsection (a) of this section.”
Subsection (f) of Senate Bill 462 reads as follows:
“Every permit issued before the effective
date of this section is hereby revoked to the
extent that it grants any authority in conflict
with the statutory conditions stated In Sub-
sections (d) or (e) of this section.”
- 330 -
Senator Jack Hlghtower, page 2 (M-72)
Subsection (a) referred to in the Committee Substitute
and Subsections (d) and (e) referred to in Senate Bill 462 are
those subsections prohibiting the issuance of permits to dredge
shell and mudshell in certain areas designated therein. You have
requested our opinion on the validity of those portions of Senate
Bill 462 and the Committee Substitute for Senate Bill 462 above
quoted~.
Article 4051, et seq., Vernon’s Civil Statutes, au-
thorize the issuance of permits to dredge in waters of this
State shell or mudshell under certain conditions prescribed by
the Legislature. Senate Bill 462 of the 60th Legislature, if enacted,
would amend Article 4053 so as to prohibit the issuance of such
permits in certain waters of the State, and the provisions which
you Inquire about, if enacted, would revoke permits heretofore
issued by the Parks and Wildlife Commission rather than merely
prohibiting the Issuance of any permits from and after the ef-
fective date of Senate Bill 462.
The State may either grant or refuse the privilege of
exploitation of the resources of Texas bays and other public waters.
Texas Oyster Growers Association v. Odem, 385 S.W.2d 899 (Tex.Civ.
A P. 19ob , error re . n.r.e. . Haden v. Dodgen, 158 Tex.
4, 308 S .W. 2d 838 (1958)) the Co&-d at page 842:
I,
. . .Power to sell mudshell Is conferred by
statute on the Game and Fish Commission of Texas.
Article 4052 provides that the Commission ‘shall
have full charge and discretion over all matters
pertaining to the sale’ of mudshell and other deposits.
Art. 4058d provides that with appyoval of the
Governor the Commission ma 3 sell upon such ,terms
and conditions as he f-it may deem proper.
There is no statutory-pr%islon governing or
limiting the manner of sale. So far as the statutes
are concerned the Commission may sell by contract,
m’iiiifally binding on the State and the vendee, or
by permit revocable and amendable at the will of
the Commission. Its selection of the manner of making
sales as well as its decision as to whether the manner
it has followed constitutes a valid contract Is the
selection and decision of the State; and however in-
correct the latter decision may be, a suit to test
it by seeking enforcement of contract rights is
necessarily a suit against the State which caanot
be maintained without legislative permission.
(Emphasis added.)
- 331 -
Senator Jack Hightower, page 3 (M-72)
In view of the foregoing, the Parks and Wildlife
Department may grant the privilege of exploitation of the resources
of the public waters in the State by permits revocable and amendable
at the will of the Department. Thus a person granted a permit
does not acquire any rights which may not be revoked by the State.
Therefore, you are advised that under the provisions of
Senate Bill 462 of the 60th Legislature and the Committee Substitute
for Senate Bill 462, if enacted, the State is merely exercising
its authority to refuse the privilege of exploitation of the
resources of the public waters of the State. The bill does not
affect any contract for sale of property of the State by contract
mutually binding on the State and a vendee, but only affects per-
mits which are revocable and amendable at the will of the State.
You are therefore advised that the provisions of Senate Bill 462
and provisions of the Committee Substitute for Senate Bill 462
are constitutional’,
S U MM A R Y
Senate’ Bill 462 of the 60th Legislature and
the Committee Substitute for Senate Bill 462 pro-
viding for cancellation of permits granted by the
Parks and Wildlife Department pursuant to the pro-
visions of Articles 4051, et seq., Vernon’s Civil
Statutes, if enacted, are constitutional since
their provisions do not apply to any contract
of sale, but only affect permits revocable and
amendable at the will of the State.
Vefi truly yours,
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
- 332 -
Senator Jack Hightower, page 4 (M-72)
Pat Bailey
William J. Craig
Neal Williams
Houghton Eirownlee
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.
- 333 -
Untitled Texas Attorney General Opinion
Combined Opinion