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
