         THE~~TTORNEYGENERAL
                   OFTEXAS
                   Arrs~mr.   ~EKAS     78711

                    April 5, 1977




The Honorable Ronald L. Wilson           Opinion No. H-971
Criminal District Attorney
405 County Courthouse                    Re: Constitutionality
Galveston, Texas 77550                   of sections 12.109 and
                                         77.025, Parks and Wildlife
                                         Code, relating to the
                                         confiscation of shrimp.

Dear Mr. Wilson:

     You have requested our opinion regarding two provisions
of the Parks and Wildlife Code. Section 77.025 provides:

             When an enforcement officer of the
          department believes that a person has
          unlawful possession of any shrimp taken in
          violation of this chapter, all shrimp
          aboard any vessel involved or in the trawl,
          whether in storage, on deck, and whether
          alive or dead, whole or headed, frozen or
          fresh, shall be deemed to have been taken
          in violation of the chapter and shall be
          confiscated by the arresting officer. The
          cargo of shrimp shall be sold to the highest
          of three bidders by the officer. The proceeds
          of the sale shall be deposited in the state
          treasury to the credit of suspense fund
          number 900, pending the outcome of the action
          taken against the person charged with the
          illegal possession.  Unless the person is
          found guilty, all the proceeds shall be paid
          to the defendant.

Section 12.109 is to the same effect, except that its applica-
tion extends to "fish, oysters . . . or other marine life,"
as well as shrimp. You ask whether either of these statutes
might deprive a person of due process of law in violation of
the Fourteenth Amendment to the United States Constitution.




                              p. 4043
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The Honorable Ronald L. Wilson - page 2   (H-971)



      First, it is our opinion that the statute's standard of
seizure by an enforcement officer when he "believes" that an
individual has unlawful possession of shrimp will be inter-
preted by the courts of this state as requiring~the consti-
tutional standard of probable cause. See Carroll v. United
S'tates. 267 U.S. 132 (1925). For exam=.     a Parksynd
Wildlife Department enforcement officer has reasonable or
probable cause to believe that a Gulf operator is unlawfully
in possession of marine life if he has in fact observed him
shrimping in closed waters; therefore, there is no denial of
due process when an individual is arrested and his shrimp is
confiscated under these circumstances.    Second, we believe
that the sale of the confiscated shrimp pursuant to the
statutory provisions in section 77.025 and 12.109 of the
Parks and Wildlife Code is not violative of the due process
clause of the Fourteenth Amendment to the United States
Constitution.   To begin with, the Submerged Lands Act of
1953, 43 U.S.C. 5 1301 et. seq. (19701, declares that title
to the natural resources within "navigable waters within the
boundaries of the respective States" is vested in the re-
spective States. Id. 9 1311(a). Furthermore, the Act
defines natural re=rces    to include shrimp. Sec. 1301(e).
The recently enacted Texas Parks and Wildlife Code specifi-
cally states that ' [a]11 the beds and bottons.and the
products of the beds and bottoms . . . of that partof the
Gulf of MEicwithinthe      jurisdiction of this state are
property of this state." sec. 1.011(c). See generally
McCready v.            94 U.S. 391 (1876). Section   1.011
also stat= %=+2
             t at t e Parks and Wildlife Department "shall
regulate the taking and conservation of . . . shrimp.. . ."
Sec. 1.011(d). Thus, title to game and fish or at least the
reaulation of their takina remains in the state until all
requirements for their legal taking have been met. See Geer
v. Connecticut, 161.U.S. 519, 533 (1896); Sterrett vxibson,
if?8 S.W. 16, 19 (Tex. Civ. App. -- San Antonio 1914,no
writ); Attorney General Opinion WW-672 (1959). We are
advised that the two statutes in question were enacted for
the conservation and protection of shrimp as they migrate
from nursery areas to the Gulf of Mexico,   and we believe
that the Legislature balanced the necessity of conserving
these natural resources for the benefit of all the people
as against the inconvenience caused by confiscation of
illegally taken shrimp held by some operators.

     In an earlier attack on similar shrimping regulations,
a South Carolina statute "providing a closed season for
catching . . . shrimps" was upheld as a valid exercise of
legislative power. Shipnan v2 DuPre, 88 F. Supp. 482, 488



                          p. 4044
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        The Honorable Ronald L. Wilson - page 3   (H-971)



        (E. D. S.C. 1950), 339 U.S. 321 (1950), on remand 73 S.E.2d
        716 (S.C. 1952). On remand from the Sunreme Court for stat-
        utory interpretation, the South Carolina Supreme Court held:

                 The State has a wide latitude of dis-
                 cretion in the matter of the amount of
                 the penalty. . . . This discretion is
                 governed by the interests of the pub-
                 lic, the normal opportunities for com-
                 mitting the offense and the amount
                 necessary to secure a prompt compliance
                 with the statutory enactment. Shipman
                 v. DuPre, 73 S.E.2d 716, 718 (S.C.
                 T.552).

        In short, the regulation of coastal fisheries is "within the
        police power of the individual states." Corsa v. Tawes, 149
        F. Supp. 771, 777-78 (D. Md.), aff'd 355 U.S. 37(195.
        The modern concert contemulatina state control is "founded
        upon the power tb regulate in the state the protection of.
        these resources 'fish1 for all the people." Kake v. Egan,
        174 F. Supp. 500, 502-04 (D. Alaska 1959), aff'd 369 U.S. 60
        (1962). Accord Glenovich v
        1291-93 (mska),      affrd*Om;            :?~7~~,~~~&,"""
        involved the protection    migrating salmon.        , the
        Legislature, in weighing the public interest in wildlife and
        the ease with which the shrimp may be illegally taken, took
        necessary action to secure compliance with closed seasons
        and provided proper penalties for such violations without
        denying due process to any Gulf operators.

             If, for example, an individual is acquitted of the
        offense of illegal possession, "all the proceeds . . .
        [are] paid to the-defendant," and, in such event, no depri-
        vation of due process occurs. xthzgthedefendzt        is
        deurive~ofis    catch, he receives its equivalent -- pro-
        ceeds from the sale -land courts and legislatures have long
        recognized that perishable property nay be sold pending
        trial. See United Finance Corp. v. Woodruff, 112 S.W.2d
        219, 220(Tex. Civ. App. -- Galveston 1937, no writ); 7
        C.J.S., Attachment 9 319.
             If a defendant is convicted under sections 77.025 or
        12.109 of the Texas Parks and Wildlife Code, the confis-
        cation of the illegally obtained shrimp does not violate due
        process because title remained in the state since the require-
        ments for their legal taking were not met. See Geer v.




                               P. 4045
The Honorable Ronald L. Wilson - page 4   (H-971)



Connecticut, supra. A problem nay develop, however, if the
defendant hascomingled  legally obtained shrimp with shrimp
obtained in violation of the Shrimp Conservation Act, Chap-
ter 77, Texas Parks and Wildlife Code. The statutes do not
prohibit the court from awarding a convicted individual a
portion of the proceeds representing his legal catch; how-
ever, it is our opinion that a convicted defendant is not
denied due process even if the court refuses to do so since
the defendant has

         the burden of pointing out his own goods,
         and, if this cannot be done, he must bear
         the loss that results from it. Holloway
         Seed Co. v. City National Bank, 47 S.W. 95,
         ---
         97 (Tex. 1898).

Legislative discretion has reasonably determined that
regulations and prohibitions for the taking of shrimp in
closed season are necessary for the preservation of this
natural resource of the state, and the public interest
requires that any individual convicted under these statutes
bear the burden of proving up the amount of his lawful
catch. However, a defendant may file a claim under section
e of article 18.17, Texas Code of Criminal Procedure, to
obtain proceeds from the legally taken portion of the catch.

     Finally, you suggest in your brief that the confisca-
tion of the shrimp may act as a forfeiture which would oust
a Justice of the Peace court of jurisdiction in favor of a
district court under article 1906, V.T.C.S.  However, a
defendant can forfeit only shrimp that he owns. See 25
Tex. Jur.2d, Forfeitures 99 1, 20. The Justice court de-
cides whether a defendant has taken shrimp legally: a de-
cision that he has not works no forfeiture but only locates
title in the state, where it has always been. When the
defendant cannot prove what portion of commingled shrimp he
took legally, there is again no forfeiture, but merely a
failure to prove that he acquired title. The defendant nay
recover the legally taken part of the catch through court
order or petition under section 18.17 of the Code of Crin-
inal Procedure.  Thus, a disposition of the proceeds of the
confiscated shrimp by a justice of the peace does not vio-
late article 1906. In short, the Justice court decides
whether the defendant violated the law and the disposal of
the catch itself is provided for by statute. It is our




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        The Honorable Ronald L. Wilson - Page 5, (H-971)


          . .
        oprnron, ,therefore, that neither section 77.025 nor section
        12.109 'of the Parks and Wildlife Code contravenes an indi-
        vidual's due process rights; instead, section,s 77.025 and
        12.109 are a valid exercise of the State's police power in
        the conservation of shrimp for the ~benefit of the people of
        the State of Texas.

                             SUMMARY

                  Sections 77.025 and 12.109 of the Parks
                  and Wildlife Code, which provide for the
                  confiscation of all shrimp aboard a vessel
                  upon which any shrimp have been unlawfully
                  taken, does not deprive the owner of the
                  shrimp of due,process of law.

                                          ery truly yours,




                                         Attorney General of Texas




        Opinion Committee

        km1




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