                                      AUSTIN.           TJICXAS          78711



                                                    March       19,     1975



The    Honorable          Clayton       T.    Garrison                         Opinion         No.    H-        558
Executive         Director
Texas      Parks        & Wildlife      Department                             Re:      Factors         to be considered
John H.         Reagan      Bldg.                                              by Parks          and Wildlife             Depart-
Austin,         Texas      78701                                               ment      in adopting            regulations
                                                                               to protect         wildlife.


Dear      Mr.     Garrison:


            You     have     asked      three    questions           concerning           the duties            of the
Parks      & Wildlife         Commission.               You    first     ask:


                         Is it the duty         of the Parks            and Wildlife             Com-
                         mission        to consider           each     of the following               factors
                         prior       to the adoption          of wildlife         regulations            in
                         accord       with     the Uniform             Wildlife       Regulatory           Act:
                          (a) Studies        of the supply,            (b) Economic             value,      (c)
                          Environment,            (d) Breeding            habits        and,    (e) factors
                         affecting       the increase           or decrease              of the wildlife
                          species?


            Section        2 of the Unifqrm             Wildlife        Regulatory             Act,    article          978j-1,
Penal     ~Auxiliary        Laws,       pr.ovides       in pertinent            part:


                          In order      to better        conserve          an ample            supply      of the
                          wildlife     :resources        in the counties                to which         this     Act
                          applies      to the end that the most                      reasonable          and
                          equitable      privileges           may      be enjoyed         by the people
                          of said     counties         and their        posterity         in their         ownership
                          and in the taking            of such         resources,          it is      deemed          for
                          the public         welfare     that this        Legislature             should        provide
                          a law      adaptable         to changing          conditions           and emergencies




                                                         p.    2508
The Honorable             Clayton       T.        Garrison            page      2      (H- 558)




                      which         threaten          depletion         or wa s t e of the wild-
                      life    resources              in said         counties.           The      Parks      and
                      Wildlife           Commission                  &therefore              granted        the
                      authority,             power         and duty’ to provide                   by proclama-
                      tion,      rule        or    regulation,              from      time     to time,       periods
                      of time        when          it shall         be lawful         to take      a portion        of the
                      wildlife        resources               in said         counties        or in any portion
                      of any        of said         counties          when      its    investigations             and
                      findings          of fact       disclose          that there           is an ample           supply
                      of such        wildlife            resources            that a portion           thereof        may
                      be taken          which         will     not threaten             depletion         or waste
                      of such        supply.


           Under     section        2 of the Act,               the Commission                  has    the duty         to pro-
mulgate     regulations          providing            for     periods          of time       during       which     wildlife
may    be taken.          However,           the statute             also     contemplates            that       such     “open
season”     times     are     to be declared                 when       the investigations                of theCommis-
sion   disclose      that the taking                of wildlife         at that particular                time     will      not
threaten    depletion         or waste             of the supply              of the wildlife         resources.


           Section    4 of the Act                discusses           the investigations               the Department
must   make       prior     to declaring             an open          season:


                              It shall        be the duty             of the Parks             and Wildlife
                      Department                  to conduct,          from   time to time,     or
                      continuously,                 scientific         research   investigations                    and
                      studies        of the         supply,          economic          value,       environment,
                      breeding          habits        and,          so far     as     possible,       the sex         ratio
                      of the different                species          of wildlife           resources           as well
                      as     the factors            affecting          their        increase       or decrease,
                      particularly                with     reference           to hunting,          trapping,
                      fishing,        disease,              infestation,             predation,        agricultural
                      pressure,              over-population,                   and any and all             other
                      factors        that         enter      into    a reduction             or an increase             in
                      the supply             of such         wildlife         resources           of this    state.
                      Pursuant           to and based                upon       such     studies,         said
                      Commission                   shall     enter      its    findings        of fact      with




                                                             pm 2509
The   Honorable       Clayton         T.     Garrison            page      3         (H-558)




                     respect          thereto,         and if,      in the opinion               of the
                      Commission,               an open          season         or period            of time
                     may         be safely       provided          for    any        of the wildlife
                     resources               of said     county,         said        Commission              is
                     authorized              and directed          from         time     to time         to
                     provide          an open         season       or period            of time         when
                     such         wildlife      resources          may         be taken.


           In our    opinion,         section         4 clearly        requires           the Department                 to
consider      each   of the factors             listed       in your      question             to determine              whether
an open     season       may      “safely       be provided”             for    any wildlife             resources.


           You    next    ask:


                     Is it the duty             of the Parks             and Wildlife                Department
                     to consider              each     of the following                factors         prior       to
                     the issuance              of a permit          for    the taking                of marl,
                     gravel,          sand,      shell         or mudshell:


                             a.     Whether          operation         under         the permit          would
                     damage           or injuriously             affect        any     oysters,          oyster
                      beds        or fish      inhabiting         waters         thereof         or adjacent
                     thereto.


                             b.     Whether           such     operation         would         damage             or
                     injuriously             affect      any island,            reef,     bar,channel,
                      river,        creek       or bayou          used    for        frequent         or occa-
                      sional        navigation          or injuriously               affect      any     current
                     that would             affect     navigation.


                             c.     The      requirements              of industry             for    such
                      sedimentary              materials          and the relative                   value
                     thereof         to the State            of Texas          for     commercial
                     value?


           Article       4053,      V. T. C. S.,          provides         the procedure                 whereby          the
Parks      and Wildlife          Commission             may      issue     permits             to persons              who seek




                                                          p.    2510
The    Honorable           Clayton       T.      Garrison            page       4     (H-558)




to purchase          or remove           marl,         sand,       gravel,          shells         or mudshell             from
waters     within      the    Commission’s                 jurisdiction.                  Under      section           1 of that
article,      such    persons         must        first     make        a written           application            to the
Commission           for     the permit.             The       section         then       states     that:


                        If the Parks              and Wildlife            Commission                finds     that
                        the taking,              carrying        away        or disturbing             of the
                        marl,         gravel,        sand,         shells      or mudshell             in the
                        designated             territory         would         not damage            or in-
                        juriously           affect  any oysters,    oyster  beds,   fish
                        inhabiting           waters   thereof   or adjacent  thereto     or
                        that     such       operation          would        not damage              or injuriously
                        affect       any island,            reef,       bar,        channel,         river,            creek
                        or bayou          used      for     frequent           or occasional             navigation,
                        or change             or otherwise              injuriously           affect        any
                        current          that would          affect       navigation,              it may         issue        a
                        permit         to such         person        after      such       applicant          shall       have
                        compli.ed           with    all     requirements                  prescribed          by said
                        Parks         and Wildlife             Commission.


              Although         the language               of the     statute         is    disjunctive,            it is our
opinion     that the statute             should        be construed                 to require         the Commission
to find    prior      to issuing         a permit           that    the operati~ons                 under     consideration
do not injuriously             affec,t      a3      of the three            mentioned              areas:         l)oysters,
oyester     beds,      fish      inhabiting         water          thereof        or adjacent           to the operation;
2) any island,         reef,      bar       channel,           river,       creek         or bayou          used        for    frequent
or    occasional       navigation             and 3) any           current          that would         affect          navigation.


           In reaching           this     conclusion            we are         guided        by the rule               of statutory
construction          that    unless        there      is no alternative,                   a statute         will       not be
interpreted          so as     to lead        to an absurd              result.           McKinney           v.        Blankenship,
282    S. W. 2d 691 (Tex.               Sup.      1955).        To construe                the statute            as    requiring
that the Commission                  find      the operations               under         consideration                will    not
injuriously        affect      only      one of the three                stated       areas         wouldlead            to absurd
results.       For     example,             if a person            wished         to remove           sand        from         an area
in a manner          which       clearly         was      not injurious              to any        currents            affecting
navigation,          he would         be able       to qualify           for    consideration                by the Commission




                                                             pe 2511
       .        ,




The        Honorable        Clayton         T.    Garrison                  page      5     (H-558)




for    a permit         even     though          the removal                of the        sand     might       injuriously            affect
several        reefs      and destroy             oyster        beds.          We do not believe                      the legislature
intended        such      a result.


              Our      interpretation             of the        statute        as     conjunctive              rather      than dis-
junctive        is further         reinforced             by Sutherland                   on Statutory              Construction
section        252     which     states:


                           The popular              use     of ‘or’          and ‘and’            is    so loose       and
                           so frequently             inaccurate                that it has              infected      statutory
                           enactments.                While          they     are     not treated              as    inter-
                           changeable,              and     should           be followed                when    their
                           accurate          reading        does            not render            the sense           dubious,
                           their     strict         meaning          is more              readily         departed         from
                           than that         of other           words,         and one read                 in place          of
                           the other          in deference                  to the meaning                 of the context.


~[cited with          approval       in Witherspoon                    v.     Jernigan,                76 S. W.      445      (Tex.
Sup.        1903)    and Young         v.     Rudd,        226       S. W. 2d 469                (Tex.      Civ.      App.
--Texarkana              1950,     writ      ref.     n. r. e.)].


               Thus,      in our      opinion,            the Commission                    must          not only      consider
the factors           listed     in part         (a) and part          (b) of your                 second question                 prior
to issuing           a permit       under        article         4053,    but also                the Commission                   may
not consider            issuing       such       a permit            unless         it finds           that the      operations
satisfy        the requirements                  listed     in section              1 of that article.


              Once       the Commission                   has    found         that       the operations              under        con-
sideration            satisfy    the requirements                      of section            1,    the Commission                   is then
in a discretionary                 position.          The        statute        states        that the Commission
“may”         issue      a permit       to the applicant.                      At this        point        in the permit              pro-
cedure,         the Commission                   should         be guided           by section             2 of article            4053,
which        provides:


                                   In determining                whether            or not such              permit
                            should     be issued,               the Parks             and Wildlife              Com-
                            missionshall             take       into        consideration                any injurious




                                                                p.     2512
                                                                                                                        .        I




The   Honorable          Clayton         T.     Garrison                page      6    (H-558)




                        effect        which      might           occur     to any        oysters,         oyster
                        beds,         fish     inhabiting           waters        thereof         or adjacent
                        thereto,         as well            as the requirements                       of industry
                        for     such     marl,          sand,        gravel,          shells      or mudshell
                        and the relative                   value        thereof       to the State          of Texas
                        for     commercial                 use.


            Thus,       in answer            to part        (c) of your           second         question,         the Com-
mission      must       consider             prior     to the issuance                 of a permit           the require-
ments     of industry           for    the sedentary                materials           and the relative               value
thereof     to the State          of Texas           for     commercial                use.


            Your     final      question         is whether:


                        In the exercise                 of its       general          authority         over     the
                        various         species            of wild       animals,             birds     and fish
                        within        this     State,        does        the Parks            and Wildlife
                        Commission               have the duty to consider  both economic
                        as well as             environmental  factors  when establishing
                        policy        guidelines             for    the Department?


            The     Parks       and     Wildlife           Commission                 when      establishing           policy
guidelines        for   the Department,                     should,        like       any other         department,
establish     policies          which        comport             with    the specific            statutes       which         give
the Department            its    jurisdiction               over     wildlife         resources.               Absent       your
providing      us with          a particular               set    of guidelines           promulgated              pursuant
to a particular          statute,        we are            unable        to answer            your     question.


                                                        SUMMARY


                                 It is the duty              of the Parks             and Wildlife             Commission
                         to consider             each        of the factors             listed        in section        4 of
                         the     Uniform          Wildlife          Regulatory            Act     prior        to the
                         adoption            of wildlife           regulations.               Under      article       4053,
                         the Commission                     must        consider        prior         to issuing        a
                         permit        for     the taking            of marl,          gravel,          sand,      shell
                         or mudshell,                all     of the factors             cited     in section           1 of




                                                                 pm 2513
     .     .




The Honorable      Clayton        T.    Garrison             page     7      (H-558)




                  that article.             If the requirements                  of section         1 are
                  met,      the    Commission               in deciding          whether       to issue
                  a permit,            must       then    consider        the factors         listed      in
                  section     2 of article               4053.      The      Commission,             when
                  establishing            policy         guidelines       for    the Parks          and
                  Wildlife        Department,               must      establish        policies       which
                  comport         with      the specific           statutes       which      give     the
                  Department              its    jurisdiction         over      wildlife     resources.


                                                                          Very     truly     yours,




                                                                          Attorney         General        of Texas
APPROVED:



                                  Of
DAVID     M.   KENDALL,           First         Assistant




C.   ROBERT     HEATH,        Chairman
Opinion   Committee




                                                    p.    2514
