Game, Fish and Oyster Commission Opinion No. O-5372
Austin, Texas Re: May any person legal-
ly use a net or seine for
Attention: Mr. H.~ D. Dodgen the purpose of taking mul-
let ,within, a distance of
less than one mile from a
pass leading from the in-
,land bays or tide waters
of this State to the Gulf
of Mexico other than a
cast net used in taking
bait, provided such person
holds a permit issued to
him by the requisite au-
thorities of the Game, Fish
and Oyster Commission au-
thorizing him to do so?
Dear Sir: And other related questions.
We have received your letter of recent date requesting
our opinion upon the above stated question and other related
matters. Your letter r,eads as follows:
“Because of present demands fork increase in
food production, an added number of requests are
being made for permits to be issued under the terms
of House Bill 820 Acts of the Regular Session,
Forty-sevenths Legjslature. The concern of the Game,
Fish and Oyster Commission regards the,issuance of
such permits authorizing the taking of mullet from
certain of the ,tidal waters, of this State where the
;I; of nets and seines is otherwise prohibited by
Competent authorities of the Game Fish ,and
Oyster Commission have classified mulled as a non-
game fish in accordance with the provisions of the
above mentioned H. B. 820.
“This Department respectfully requests your
opinion on the follow+g quest ions;
‘,! i
“1. May any Orson ,‘legally ,,use a net or seine
for the’purpose’of taking mullet within a distance
of less than one mile from a pass leading from the
inland bays or tide waters of this State to the Gulf
Game, Fish and Oyster Commission, page 2 (O-5372)
of Mexico other than a cast net used in taking bait,
provided such person holds a permit issued to ‘him by
the requisite authorities of the Game, Fish and Oyster
Commission authorizing him to do so?’
“2. May any person legally use a net or seine
for the purpose of taking mullet or other non-game
fish from any of the tidal waters of ~thisstate not
mentioned in Article 941, 1925 P.C. as emended?
“3. May a permit be legally issued by the Game,
Fish and Oyster Commission to any person or persons
authorizing the taking of mullet or other inan-game
fish by use of nets or seines from any of the tidal
waters of this State in which a trammel net,, set net,
or gill net is now prohibited by law? May the hold-
er of such permit legally proceed, when holding such
permit to operate in such restricted areas by tak-
ing m&et and/or other non-game fish by use of nets
and seines?
“4. May the Game, Fish and Oyster Commission is-
sue permits for the use of nets and seines having
smaller mesh or of greater length than is otherwise
permitted by law?”
House Bill 820, referred to in your letter, is the
same as Article 952L-11, Vernon’s Annotated Penal Code. we
are primarily interested in Section 3 thereof, part of which
provides as follows:
II. . .
“In order to control such nongame marine spe-
cies and to permit their utilization and when it has
been found that the taking of such nongame’species
will not adversely affect the conservation ,of game
species, it shall be the duty of the Gamei Fish and
Oyster Commission to issue permits for ,the use of
any net or device for the taking of sudh nongame
species under the terms, conditions, and stipulations
herein provided.
‘I. . .
“(b) It shall be ~unlawful for the holder of a
permit issued hereunder to operate any~net or device
that is not now legal in any of the tidal waters of
this state in which a trammel net, set net, or gill
.
Game, Fish and Oyster Commission, p.ag,e 3,~ (Q-,5372)
net is now prohibited by law. And it shall
be unlawful, to .‘operate a jdevice permitted under
the terms of this Act until ‘such deviicehas been
inspecte.d, approved, ,and’~t agged, and while: in, dp-
eration bearsa ‘metal~tag~identifying said de~vicg
issued by said, Com&s~Sion.~ ; “~’ :’
“(c) It shall be unlawful to use a device
otherwise prohibi,ted by the .laws of this State but
permitted under the ter:ms ~of thi’s Act for the tak-
ing and posse,ssion of ‘any game fish or any other,
species of salt-water fish exc’epting those spec-
fically named in the permiC authorizing the use, off
said devices or to operate or permit ,the operation
of such a device.,in a manner that will or does
needlessly or carelessly injure marine products
other than those’permitted to be taken inthe es-
pecially authorized net; ~. . .‘I
We quote as follows from 41 Words and Phrases 624, as
to the waters which come within the’~category of “tidel waters:”
“Tide. waters are waters~ whether salt or ”
fresh, wherever the ebb and kow of the tide of
the sea is felt’. Commonwealth v. Vincent, 108
Mass. 441, 447.”
Article 941,~ VernonrsAnnotated Penal Code, makes it
use nor drag any seine,
and shrimp other than or-
el. artificial bait,
trot line, set line,,‘or cast-net or minnow’~seine of’not more than
twenty feet in length, for catchin,g bait within certain tidal wat-
ers therein named, ‘including waters within one mile of any pass,
stream or canal leading from done ‘body of, Texas or coastal waters
into another body of such waters, providing that nothing in this
article shall prevent the use, of a spear or gig and light for
the purpose of taking, flounders.
Secti~on la of Arti,cle’ 941 supra, and 945, Vernon’s Ann.
penal Code, read respectively asp fo i lows:
“Provided that -‘it,, shall be’ unlawful fork any
person to drag any ‘seine, or use any drag seine, or
shrimp trawl for catching fish’or shrimp;‘or to take
or catch fish or, shrimp with any de,vice other than
with the ordinary pole and line, casting rod, rod
and reel, artificial, bait, trot line, set line, or
cast net, or minnow seine, ~,of not more than twenty
Game, Fish and,Oyster Commission, page 4 (O-5372)
feet in length for catching bait or to use a set
net, trammel net or strike net, c he meshes of which
shall not be less than one and one-half inches fr,om
knot to knot, in any of the tidal bays, streams,
bayous, lakes, lagoons or inlets, or parts of such
tidal waters of this &ate ‘not mentioned in Section
1 hereof .I’
“The mesh of all seines and nets used for tak-
ing fish in salt waters of this State, not including
the bag, shall not be less than one and one-half
inch square mesh. The mesh of the bags and for fif-
ty feet on each side of the bags, shall not be larger
than a one inch square mesh. No seine or net of any
kind of over two thousand. feet shall be dragged or
pulled in the salt water of this State,, and any per-
son dragging such seine, or dragging two or more
seines which are connected or’ tied together with a
combined length of more than two thousand feet, shall
be upon first conviction thereof fined not less than
twenty nor more than one hundred dollars; upon second
conviction thereof shall be fined not less than fifty
nor more than two hundred dollars and shall have his
license revoked for a period not iess than thirty nor
more than ninety days; and upon third conviction there-
of shall be confined in jail for not less~ than thirty
nor more than ninety days, and shall have his license
revoked for a period of not less than one year.”
Article 947 of the Penal Code make,s it an offense to
catch fish or attempt to catch fish in any of the bays or navi-
gable streams of the State, withinthe limits or within one mile
of the limits of any city or town in this State with seines,
set nets. trammel nets, or by any of the, other described methods
therein named.
Article 952L-10, Vernon’s Ann. Penal~Code, also makes
it a penal offense to use strike nets. sill nets. t ammI netg,
or shrimp trawls as defined by the statutes for thertakeing of
fish and shrimp from certain named and defined waters during the
period beginn&ng August 15 and ending May 15 of each year. Safd
article makes it unlawful for any person to use in said waters
during the closed season any strike net, gill net, trammel net
or shrimp trawl contrary to provisions of article 941, supra.
Section 2 of said article provides:
“It shall be unlawful to have in possession any
seine, strike net, gill’net, trammel net, or shrimp
Game, Fish and Oyster Commission, page 5’ (O-5372)
trawl in or on any of the tidal waters of this State
where the use,of ‘said seine strike newt gill net,
trammel net,, or shrinp’.traw 1, is prohibited from be-
ing used in taking or catching ‘fish and/or shrimp,
unless such’setie,‘strike net, gill~net, trammel
net, or shrimp trawl 1s~ ‘on~board a vessel when such
vessel is at ports or in,a channel while en route to
or from the Gulf of Mexico.”
There may be other statutes specifically inhibiting
the use of seines or’any or all of the types of nets above
mentioned in certain tidal waters for the purpose of taking or
attempting to take fish. We have mentioned articles 941, 947
and 952~10 for the ‘purpose of showing the established policy
of the State to inhibit the use of trammel nets set nets, and
gill nets those types of nets specifically men4ioned in sub-
section (b) of section 3 of House Bill 820, and seines in cer-
tain tidal waters of this State, for the purpose of taking or
attempting to take from said waters fish of any and all kitis,
whether game or nongame. Therefore, the Legislature not only
made the use of such nets in certain tidal waters a penal of-
fense, but to make the purpose of the statutes more effective,
made the possession of any seine, strike net gill net or tram-
mel net in any of the tidal waters of this Siate, where the
use of seines or said nets is prohibited, a penal offense, un-
less the seine or nets is on board a vessel when such vessel is
in port or in a channel while en route to or from the Gulf of
Mexico o (Art. 952L-10, Sec. 2)
It is perfectly clear in our minds that the Legisla-
ture did not attempt to change the established policy of the
State, above set forth, by the passage of House Bill No, ,820,
but to the contrary took every,precaution therein to preserve
that policy, as evidenced by the plain provisions of subsection
(b) and (c) of section 3 thereof,, quoted above*
The purpose of this statute is to permit the taking
of nongame fish from the tidalwaters of this State by means
and methods not theretofore,permissible under the law. For in-
stance, it is a matter of common knowledge that some nongame
fish are too small to be taken by seines and nets with meshes
as large as the minimum size prescribed by section la of Article
941, supra, hence the law contemplates the Commission may grant
a permit for use of a seine or net with a smaller mesh or great-
er length than those which may be used for taking game fish.
However, the waters in which such seines or nets may be legally
used ape limited by section (b) to those tidal waters where it
is lawful to use a trammel net, set net, or gill net. There-
fore, such seines and nets as may be approved by the commission
. .._.
Game, Fish and Oyster Commission, page 6 (O-5372)
for taking nongame fish may not be lawfully used in any of
the waters named or defined by ,Articles 941 947, 952-10, or
in any other waters not embraced in such sirc icles, if there
be such, where the use of such nets are inhibited by statute
or by thecommission under authority of law. It is evident
that the Commission has no, authority to grant a permit for the
use of a net or other device for taking nongame fish in waters
where the use of same by the permittee is made unlawful.
We trust the foregoing satisfactorily answers all
your questions.
Very truly yours,
ATTORNEY
GENERAL
OF TEXAS
By /s/ Fred C. Chandler
Fred C. Chandler, Assistant
By /s/ Robert 0. Koch
Robert 0. Koch
APPROVED JUL 9, 1943
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMAN
ROKsff:wb