                 EATICORNFIY   GENE
                      OF TEXAS




                               August   2g,.lg63



  Mr. H. D. Dodgen                                 Opinion   No.   C- 129
~’ Secretary
   Etame and Fish. C.ommlsslon.                    Re:    Whether a person who
   Austin,   Texas                                        buys, unloads,.handles,
                                                          and resells shrimp chan-
                                                          nelling all of his shrimp
                                                         ~'to wholesalers Is required
                                                          b virtue of H.B. 109,
                                                          58th Leg    to possess a
                                                          Shrimp Ii&e Operator's
                                                          License and related ques-
  Dear Mr. Dodgen:                                        tions.
                           i
            In your letter of,July 8,, 1963, you asked six
  questions concernl~ngHouse Bill No. 109 of the 58th Leglsla-
  ture, which amend% .the,Texas Shrimp Conservation Act. The
  portions of your letter dekllng with the various questions
  will be quoted and answered separately.
              Question 1:  "If a person buys, unloads,
         handles and resells shrimp, channelllng all
         of his shrimp to.a wholesaler, Is he now re-
         quired to have a Shrimp House,Operator's
         license?"
            Se~ctioni(i) of Article 4075b, Vernon’s  CW.iL
  Statutes.ja%.aTended by House Bill No'.109,'~defines ,a :.
  ShrimpsHouse Operator as follows:
              "(i) A 'Shrimp House Operator' as used
         herein, means qny person other than one who has
         purchased a license as a 'Wholesale Fish Dealer'
         as tnat term is defined by Section l(b) of Ch -
         ter 29, Forty-third Legislature of Texas, Fir::
         Called Session, 1933, who operates a shrimp house,
         plant or other establishment for compensation or
         profit for the purpose of unloading and h dli
          rom commercial gulf shrimp boats or comm%cia?g
Mr. H. D. Dodgen, Page 2 (C-129   )


    bay shrimp boats, fresh shrimp and other edible
    aquatic products caught or taken from the coastal
    waters of this State, or from salt waters outside
    of this State and brought into this State without
    having been previously unloaded in some other
    state or foreign country." (Emphasis added).
          Friar to the 1963 amendment of this section a
Shrimp House Operator was defined as one who unloaded and
handled shrimp "for pay." In construing this language At-
torney General's Opinion ~~-1480 held that a person who per-
formed the acts described In the statutory  definition for
profit was not a Shrimp House Operator, and not required to
be licensed. The 1963 amendment, by substituting the words
"for compensation or profit" In lieu of "for pay now elimi-
nates this distinction and It is our opinion that a person
who engages In'the activities described In your first question
falls within the statutory deflnltlon of a Shrimp House Operator
regardless of the particular method by which he Is compensated
and must therefore obtain a license  under the provlsions of
Section 9 of House Bill No. 109, 58th Legislature, Regular Ses-
sion.
          Question 2. "If a person buys shrimp and re-
     sells itto retail fish dealers, cafes, and con-
     sumers, Is he required to have a wholesale Fish
     Dealers license, or'can he operate on a Shrimp
     House Operatorls license?"
          A Wholesale Fish Dealer Is defined by Section l(b)
of Article 934a, Vernon's Penal Code as follows:
         "A 'Wholesale Fish Dealer' is any person
    engaged in the business of buying for the purpose
    of selling, canning, preserving or processing, or
    buying for the purpose of handling for shipments
    or sale, fish or oysters or shrimp or other commer-
    cial edible aquatic products, to Retail Fish Deal-
    ers, and/or to Hotels, Restaurants, or Cafes and to
    the Consumer." (Emphasis added),
          The activities described in your second question
correspond to the above quoted statutory definition of a
Wholesale Fish Dealer. Section 3(t),  quoted earlier, defines
$ Shrimp House Operator as one who operates an establishment
 . . .for the purpose of unloading, and handling from commercial
shrimp boats . . . fresh shrimp and other edible aquatic products.
. . .   This definition does not Include such activities as re-
selling shrimp to fish dealers, cafes and consumers, and a person

                         -639-
Mr. H. D. Dodgen, page 3 (C- 129 )


engaging In such activities could not be licensed as a Shrimp
House Operator, but would have to be licensed as a Wholesale
Fish Dealer. Although a Wholesale Fish Dealer Is excluded from
the definition of a Shrimp House Operator" and cannot be li-
censed as such, we agree with your departmental construction
that a Wholesale Fish Dealer Is entitled to do any act which
a Shrimp House Operator may do. The Wholesale Fish Dealer can
operate a Shrlmp House, but Is not a statutory "Shrlmp House
Operator."
               Question 3. "In view of the language of
        Section   10(a) and of the general scheme of separa-
        tion, what is meant by the language found In Sec-
        tion 3(j), @any person other,than one who has pur-
        chased a license as a "Wholesale Fish Dealer" as
        that term Is defined. . .I? Does this language
        mean that a Bait-Shrimp Dealer's privileges are
        included In those of a Wholesale Fish Dealer, or
        does It mean that persons who are licensed as a
        Wholesale Fish Dealer are precluded from being
        Bait-Shrimp Dealers?"
          Section 3(j) of Article 4075(b), as amended by
House Bill 109, defines a 'Bait-Shrimp Dealer' as follows:
             "(j) A 'EaltShrimp Dealer', as used
        herein, Isany person other than one who has
        purchased a license as a 'Wholesale Fish Dealer'
        as that term Is defined by Section l(b) of Chap-
        ter 29, Forty-third Legislature of Texas, First
        Called Session, 1933, who operates an established
        place of business in any coastal county of this
        State for compensation or profit for the purpose
        of handling shrimp caught or taken for use as
        bait from the inside waters of this State."
          The definition, by using the phrase 'I.. .other than
one who has purchased a license as a 'Wholesale Fish Dealer'
      " clearly excludes a person licensed as a Wholesale Fish
ieilic from holding a license as a Bait Shrimp Dealer.

          Although a Wholesale Fish Dealer is excluded from
the definition of a "Bait Shrimp Dealer" and cannot be ll-
tensed as such, a Wholesale Fish Dealer is entitled to do any
act which a "Bait-Shrimp Dealer" may do, except the Wholesale
Fish Dealer cannot purchase bait shrimp from a "Bait Shrimp
Boat Operator.' A Wholesale Fish Dealer may operate an es-
tablished place of business in any coastal county for compen-
sation or profit for the purpose of handling bait-shrimp, but

                             -640-
Mr. H. D. Dodgen, page 4 (C- 129 )


is not a statutory "Bait-Shrimp Dealer." The Wholesale
Fish Dealer cannot buy shrimp from a Bait-Shrimp Boat
Operator by virtue of Section 6(4) of the Act which reads
as follows:
          "It shall be unlawful for any bona
     fide commercial bait-shrimp boat operator,
     at any time, to sell or unload any shrimp
     caught under the provisions of this Act to
     any person except to a bona fide bait-shrimp
     dealer, as that term is herein defined, or
     except to a sports fisherman while operating
     a boat or vessel on the inside waters."
     (Emphasis added).
As the term "Bait3hrlmp Dealer" as defined in Section 3(j)
ex~ressly~excludes~a persflnwho has purchased a license as
a 'Wholesale Fish Dealer,   Section 6(4) makes it unlawful
for a Bait-Shrimp Boat Operator to sell or unload shrimp to
a Wholesale Fish Dealer.
         Question 4. "If you answer . . .that a
    Wholesale Fish Dealer,is precluded from being
    a Bait-Shrimp,Dealer, then can a Wholesale Fish
    Dealer lawfully buy bait shrimp from a Bait
    Shrimp Dealer (or can a Bait Shrimp Dealer
    lawfully sell bait shrimp to a Wholesale Fish
    Dealer)?"
          In connection with this fourth question you state:
          "It is the desire of this Commission to
     have outlined in response to the fourth ques-
     tion the lawful and permissible channels of
     commerce In bait shrimp among the following:
               Bait Shrimp Boat Operators,
          ;:   Bait Shrimp Dealers,
               Wholesale Fish Dealers,
          2    Retail Fish Dealers, and
          5.   Any other categories of persons
               necessary to a full clar1fi.cation
               of such commerce."
          After a careful study of the entire Act, it Is our
opinion that:
          (1) A Bait-Shrimp Boat Operator can only sell
bait shrimp to a bona fide Bait-Shrimp Dealer or to a sports

                           -641-
Mr. H. D. Dodgen, page 5 (C- 129 )


fisherman while operating a boat or vessel on the inside
waters. Section 6 (4).
          (2) A Bait-Shrimp Dealer can sell bait shrimp
to another Bait-Shrimp Dealer, a Wholesale Fish Dealer,
a Retail Fish Dealer, and to a sports fisherman.
          (3) A Wholesale Fish Dealer can sell bait shrimp
to a Retail Fish Dealer, and to a sports fisherman, as he Is
a consumer of such shrimp.
          (4) A RetaSP Fish Dealer can only sell bait shrimp
to a sports fisherman, as Section 1 (c) of Article 934a of
Vernon's Penal Code defines a Retail Fish Dealer as follows:
          "(c) A "Retail Fish Dealer" is any person
     engaged in the business of buying for the pur-
     pose of selling either fresh or frozen edible  ,_':
     aquatic products to the consumer."
          By virtue of the proviso in Section 10(b) of the
Act which reads as follows:
          11   .provided, that any grocery stores in
     said &aital counties which do not unload or
     purchase shrimp directly from commercial bait-
     shrimp boats shall not be required to hold a
     Bait-Shrimp Dealer's License."
it is our opinion that grocery stores who do not unload or
purchase shrimp directly from commercial bait-shrimp boats
can become bait-shrimp dealers without securing a license.
          Question 5. "Can any former conviction
     for a violation of Article 4075b suffice to
     support a prosecution for a second offense, or
     must the two offenses be of a similar nature?"
          Section 13a of Article 4075bb as amended by House
Bill 109, Vernon's Civil Statutes, provides as follows:
          "Section 13. (a). Any person who shall
     violate any provision of this Act shall be
     deemed guilty of a misdemeanor and upon con-
     viction therefor shall be, for the first of-
     fense, fined not less than Fifty Dollars ($50)
     nor more than !&toHundred Dollars ($200) and,
     for the second offense, shall be fined not less
     than One Hundred Dollars ($100) nor more than

                         -642-
Mr. H. D. Dodgen, page 6 (C-129   )


     Five Hundred Dollars ($500) or be sentenced
     to serve not less than ten (10) days nor more
     than sixty (60) days in the county jail or
     shall be punished by both such fine and im-
     prisonment; and, for the third and all sub-
     sequent offenses, shall be fined not less than
     Five Hundred Dollars ($500) nor more than Two
     Thousand Dollars ($2,000) and shall be con-
     fined In the county jail for not less than
     thirty (30) days nor more than six (6) months."
           Section 13 states that a person "who violates s
provision of this Act shall be . . . for the first offense
     . and for ihe second offense . . ., and for the third of-
iekes             Nowhere In the Act Is there any indication
that thi if?!e&ea must be of a similar nature. The obvious
legislative intent Is to make any former convictions under the
Texas Shrimp Conservation Act sufficient to support a prosecu-
tion for    subsequent offenses, even though the former convic-
tions were had prior to the amendment of the Act by House Bill
109.
          Question 6. "When a prosecution Is com-
     menced for a first offense, does jurisdiction
     of such a case lie in Justice Court or a higher
     court? In your answer, please explain the ef-
     fect, if any, on Article 893, V.P.C. and opinions
     of the Attorne General C-5 and c-36, made by
     Section 13(d).X
          The penalty provided for a conviction for a first
offense by House Bill No. 109 of the 58th Legislature is,
under the provisions of Article 13(a), V.C.S., not less than
fifty dollars nor more than two hundred dollars.
          Article V, Section 19 of the Texas Constitution,
states:
          "Justices of the Peace shall have juris-
     diction on criminal matters of all cases when
     the penalty or fine to be imposed by law may
     not be more than two hundred dollars. . . .'
          Section 13 of House Bill No. 109, 58th Legislature,
sets forth at length the criminal sanctions to be imposed upon
persons violating provisions of the Act, and are Intended to be
exclusive. It is therefore not necessary to discuss either




                          -643-
Mr. H. D. Dodgen, page 7 (C- 129 )


Article 893, Vernon's Penal Code, or opinions of the Attorney
General C-5 and c-36, as they have no application to Article
4075b, Vernon's Civil Statutes. We are therefore of~the opinion
that a prosecution for a first offense under the provisions of
Article 4075b may be had In the Justice Court.

                    SUMMARY
         (1) A person who buys, unloads, handles,
    and resells shrimp, channelllng all of the shrimp
    to a wholesaler, Is required to have a Shrimp
    House Operator's License under the provlslons of
    the Texas Shrimp Conservation Act.
         (2) A person who buys shrimp and resells
    to retail fish dealers, cafes, and consumers, can-
    not operate under a Shrimp House Operator*8 License
    but must have a Wholesale Fish Dealers License.
          (3) A Bait-Shrimp Boat Operator can only
     sell bait shrimp to a bona fide Baft-Shrimp Dealer
     or to a sports fisherman while operating a boat or
     vessel on the inside waters. Section 6 (4)
          (4) A Bait-Shrimp Dealer can sell bait shrimp
     to another Bait-Shrimp Dealer, a Wholesale Fish
     Dealer, a Retail Fish Dealer, and to a sports fisher-
     man.
          (5) A Wholesale Fish Dealer can sell bait
     shrimp to a Retail Fish Dealer, and to a sports
     fisherman.
          (6) A Retail Fish Dealer can only sell bait
     shrimp to a sports fisherman.
          (7) Any former convictions for a violation
     of the Texas Shrimp Conservation Act is sufficient
     to support a prosecution for subsequent offenses
     under Section 13(a) of the Act, even though the
     former convictions were had prior to the amendment
     of the Act by House Bill No. 109.
          (8) The Justice of the Peace Court has
     jurisdiction for prosecution for a first offense
     for violation of the Texas Shrimp Conservation Act.



                          -644-
 Mr. H. D. Dodgen, page 8 (C- 129 )


                              Very truly yours,
                              WAGGONER CARR
                              Attorney General




                                   Assistant
1RW:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
V. F. Taylor
Murray Jordon
Paul Phy
APPROVEDFOR THE ATTORNEY GENERAL
BY: Stanton Stone




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