           THE              RNEY        GENERAL
                       OF      %-EXAS




Honorable James Ui Cross                Opinion No.M-1135
Executive Director
Texas Parks & Wildlife Dept.            Re:   Whether a licensed
John H. Reagan Bldg.                          wholesale fish dealer
Austin, Texas 78701                           may import black bass
                                              from Mexico for sale
                                              in Texas without deal-
                                              ing through a licensed
                                              custom broker, and
Dear Mr. Cross:                               related questions.

     This is in response to the following inquiries from your
office:

          1. "Is it lawful for a licensed wholesale fish
     dealer to import black bass from the Republic of Mexico
     for sale in El Paso County without dealing through a
     licensed custom house broker?"

          2. "Assuming that it is lawful for a licensed
     wholesale fish dealer to import black bass, are the
     bass imported by such dealer required to be tagged
     under the provisions of Article 978e-1, Texas Penal
     Code?"

          3. "Under the provisions of Article 978e-1,
     Texas Penal Code, can a licensed wholesale fish
     dealer apply for and obtain tags in the same manner
     as a licensed custom house broker?"

     Article 978e, Texas Penal Code states in part:

          "It shall be unlawful for any person, firm,
          or corporation, or their agents, to buy or
          sell, or offer for sale, or offer to buy, or
          have in his or their possession for sale, or
          carry, transport, or ship for the purpose of




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Hon. James U. Cross, page 2      (M-1135)



          sale, barter, or exchange, any fresh water
          crappie, or bass within the State of Texas."

     Article 978e-1, Texas Penal Code, deals with the sale of
imported black bass in El Paso County, Texas, under certain
conditions and reads as follows:

         " (a) The sale in El Paso County, Texas, of
         black bass imported from without the United
         States, which were caught in inland waters of
         a foreign country but not from international
         waters of the United States and such foreign
         country, shall be lawful, so long as the taking
         of these fish for sale is permitted in the
         country from which they are imported. No person
         shall sell or attempt to sell any such black
         bass in El Paso County, Texas, however, unless
         the fish bear a properly attached tag as provided
         herein.

           (b) Any licensed custom house broker who desires
         to handle the importation of black bass for sale
         in El Paso County, Texas, shall notify the Texas
         Game and Fish Commission, and the Commission shall
         assign the broker a permanent record number. The
         Commission shall manufacture or cause to be man-
         ufactured, on request by a broker, any desired
         number of metal tags. The cost of manufacturing
         these tags shall be paid by the broker who requests
         them, and each tag shall bear the broker's permanent
         record number and a separate number to identify
         the tag. One of these tags shall be attached to
         the gill, dorsal fin or tail of each black bass to
         be sold in El Paso County, Texas.

           (c) Any person who sells or attempts to sell a
         black bass in El Paso County, Texas, which does not
         bear a properly attached tag shall be fined not less
         then Twenty-five Dollars ($25) nor more than Two
         Hundred Dollars ($200)."

     The Legislature in enacting Article 978e-1, has permitted
the sale of imported black bass in El Paso County, Texas, as an




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^_.    - .




      Hon. James U. Cross, page 3     (M-1135)



      exception to the general provisions of Article 978e, provided
      the fish are tagged according to the provisions of the act.
      These provisions as set out in paragraph (b) authorize only
      custom house brokers to apply for and obtain tags from the
      Parks and Wildlife Department, and under paragraph (c) any
      person who sells or attempts to sell a black bass which does
      not have a properly attached tag shall be fined.

           By   designating custom,house brokers to the exclusion of
      others,   it would appear the Legislature considered such a pro-
      caution   and condition necessary for effective enforcement and
      control   of the sale of black bass in El Paso County, Texas.

           It is therefore our opinion that it is unlawful for a li-
      censed wholesale fish dealer to import black bass from the Re-
      public of Mexico for sale in El Paso County without dealing
      through a licensed custom house broker and without said fish
      being tagged according to the provisions of Article 978e-1.
      We also conclude that unless a licensed wholesale fish dealer
      is also a licensed custom house broker, he may not apply for
      and obtain tags in the same manner as a licensed custom house
      broker.

                                  SUMMARY

                  It is unlawful for a licensed wholesale fish
             dealer to import black,bass from the Republic of
             Mexico for sale in El Paso, County, Texas, without
             dealing through a licensed custom house broker and
             without said fish being tagged according to the
             provisions of Article 978e-1, Texas Penal Code.
             Further, unless a licensed wholesale fish dealer
             is also a licensed custom house broker, he may not
             apply for and obtain tags in the same manner as a
             licensed custom house broker.
                                           n




                                                 C. MARTIN
                                                 General of Texas




                                    -5529-
Hon. James U. Cross, page 4      (M-1135)



Prepared by Guy C. Fisher
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Max Hamilton
Bob Gauss
Fisher Tyler
Austin Bray

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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