        .




                                              The Attorney          General of Texas
                                                                Au:xt   30, 1984
     JIM MATTOX
     Attorney General



     Supreme      Court Building             Mr. Charles D. Travis                    Opinion No. ~~-196
     P. 0 Box 12546                          Executive Director
     A!rs!in. TX. 78711. 25.:6               Texas Parks and WildLife Department      Re:   Construction of section
     51214754!501                            4200 Smith School Ksad                   66.216 of the Parks and Wild-
     Telex 9101674-1367
     Telecopier     512/475-0266
                                             Austin, Texas   787$1                    life Code prohibiting posses-
                                                                                      sion of a fish having the head
                                                                                      or tail removed
     714 Jackson.  Suite 700
     Dallas, TX. 75202.4506
                                             Dear Mr. Travis:
     2141742-6944

                                                  You have requested a" interpretation of section 66.216(a) of the
     4624 Alberta       Ave., Suite    160   Texas Parks and WillLife Code:
     El Paso, TX.       79905-2793
     9151533.3464                                      566.216.    ?ossession of Headed or Tailed Fish
,-
       0, Texas.    Suite 700
                                                         (a) N3 person may possess a finfish of any
     Houston,    TX. 77002-3111                       species tn'cenfrom coastal water, except broadbill
     7131223-5666                                     swordfish, shark, and king mackerel, that has the
                                                      head or tail removed unless the fish has been
                                                      finally ~Zcocessed and delivered to the final
     606 Broadway,        Suite 312
     Lubbock,     TX.    79401-3479
                                                      destinatixx or to a certified wholesale or retail
     6061747-5236                                     dealer.

                                                  Your question has reference to a recreational fishing club which
     4309 N. Tenth, Suite B
                                             has set up a camp (1~.
                                                                  one of the spoil islands located along the land
     McAllen,     TX. 76501.1665
     5121662-4547
                                             cut between Baffin I&y and the lower Laguna Madre Bay System. This
                                             spoil island is one of a group of such islands which were created by
                                             dredging operations for the channel that bisects the waterway between
     200 Main Plaza. Suite 400               the mainland and tlw barrier islands to the east. The fishing club
     San Antonio,  TX. 762052797
                                             has received a peruit from the General Land Office under which it
     5121225-4191
                                             leases a state-owned cabin on the spoil island. The lease specifies
                                             that the cabin js to be used for recreational purposes only. This
     An Equal       Opportunity/             cabin serves ss a I-tsidenceduring the club's fishing expeditions to
     Affirmative      Action     Employer    the land cut. The ':lubfillets fresh fish in the kitchen of its spoil
                                             island cabin. I" a<lllitio",
                                                                        the cabin has facilities for refrigerating
                                             and storing the filleted ffsb before it is transported back to the
                                             !Xsi"ls"d. You ask whether section 66.216(a) prohibits the club's
                                             possession of fille1:edfish at its spoil island camp. We conclude
                                             that it does.

                                                  Section 66.216(a) was enacted via House Bill No. 1000, chapter
                                             153. at 347. Act:i 1981, 67th Leg., ch. 153, 56, at 376. This




                                                                           p. 860
Mr. Charles D. Travis - Page 2        (JM-196)




legislation was intended strictly to enforce the bag and possession
limits on redfish and spotwd sea trout. See generally Solis v.
w,     524 F.Supp. 1069 (S.D Tex. 1981). Because, outside of the
laboratory, ft is difficult t) identify a fish once its head or tail
has been removed, inspectors wst be able to view the fish before it
has been filleted. Effectiw policing of fishermen is, therefore,
crucial to the proper enforcement of these possession limits.

     Section 66.216(a) allow fishermen to possess filleted fish only
if either of the following is true: (1) the filleted fish have been
delivered to a final destination, or (2) the filleted fish are
delivered to a certified (lixnsed) wholesale or retail fish dealer.
It is our opinfon that neitlwr of these is true in the case of the
spoil island fishing club.

     We first conclude that a spoil island is not a final destination.
Our research has not found any court opinions nor any attorney general
opinions which construe the t.crm"fins1 destination" as it appears in
section 66.216(a). As allowwl by the Code Construction Act, we base
our interpretation of this tern on the Parks and Wildlife Department's
owu construction. V.T.C.S. srt. 5429b-2, §3.03(6). The Parks and
Wildlife Commission has adopted the following definition of a final
destination ss that term is used in section 66.216:

          a place either on tilemainland, a peninsula, or a
          barrier island where a fisherman finally lands his
          catch and does not further transport his fJsh by
          hoat. Ffnal destirsfi~ondoes not include jetties
          or piers.

7 Tex. Rep,.952 (1982) (to be codified in 31 T.A.C. §57.391).

     t,longwith the Publication of the final destination definition in
the Texas Register, the Park; and Wildlife Depnrtment explained that
!~,I:r
    definition was intended to allcw

          the coasts].fishern,anJ ulethodof preservation to
          protect hj~scatch from spoilage while transporting
          thr fish to his permsnent residence.

' Te:i. Reg. 452 (1982). TFc definition achieves this goal in the
frzllcwinguay. To prevent spoilage, it is crucial that a fisterman
Picperly refrigerate the fish he has caught. In general, fishermen
store their fish jn portable i[.c chests. They then transport their
fish  in these portable 5~ceclwsts bxk to their permanent residences.
Pt:cause these ice chests arc relatively small and because they are
u:,u;illyquit& bwvy, effjriert use of the space within the ice chests
i9 ess~ltlal. The "final destination" deftnition was enacted to al!ow
.> iishermsn to remove the head s and tails from the fish as soon as the
L;?t reschcs land. Because the filleted fish, with heads and tails



                                 p.    861
     Mr. Charles D. Travis - Page 3   (JM-196)




     removed, will take up much 1.2;sspace in the ice chests, a fisherman
     can preserve more of his catch, and fewer fish will be wasted. The
     "final destination" excepticn to the article 66.216(a) prohibition
     against the possession of headless or tailless fish distinguishes the
     "final destination" -- the place at which a fisherman finally lands
     the fish -- from the "ultimE,tedestination" -- the place to which a
     fisherman ultimately transports the fish. The definition allows a
     fisherman to fillet his catch at the final destination before
     transporting them to the ultimate destination.

          In addition to helping fishermen to preserve the fish that they
     catch, the final destjnatiol definition also helps in the general
     enforcement of article 66.2101'a). The final destination at which the
     fisherman finally lands his catch, whether at the mainland, a
     peninsula or a barrier islancl:will be subject to periodic inspection
     hy the Parks and Wildlife Department. The definition specifically
     includes only points from wh::ch a fisherman must no longer "transport
     his fish by boat." The Park:;and Wildlife Department informs us that
     this language was intended to totally prohibit fishermen from
     possessing filleted fish on a boat.

          Fishing boats pose great enforcement problems for inspectors. If
     an inspector were to stop a fishing boat and discover filleted fish,
.-
     it would be difficult for him to determine either that the filleted
     fish were redfish or that the fisherman had exceeded his daily catch
     limit. A fisherman could ear:ilydeny that the fish were redfish, a
     position difficult to refute outside the laboratory. or he could
     assert that he had accumulared the fish over several days, never
     having exceeded the limit on any one day. These potential problems
     are avoided by the final destjnation definition.

          We note that the usual wily to remc~vefish from a spoil island is
     by boat.    Because the fir,el destination definition specifically
     prohibits the possession of filleted fish at any place from which they
     will be further transported by boat, wc conclude that   a spoil island
     cannot be a final destination    Further, we believe that allowing the
     possession of filleted fish cln a spoil island would be inconsistent
     with the intent behind the final destination definition. Because
     spoil islands are surrounded by water and, thus, difficult to police
     effectively, the enforcement problems with respect to spoil islands
     will be similar to those witI!respect to boats. It is, therefore, our
     opinion that the legislature i~ntendedthat a spoil island should be
     treated no differently from ,xboat with respect to article 66.216(a).
     Neither a boat nor a spoil irilandcan be a final destination.

          Section 66.216(a) also c:,ceptsfrom its strict prohibition on the
     possession of filleted fish any person who is either a certified
     wholesale or retail fish dea.er. You ask whether the cl.ubwould be
     protected from the force of section 66.216(a) if it were to obtain a
     retail fish dealer's license. We conclude that it would not.




                                      p. 862
MI.   Charles D. Travis - Page 4




       Section 47.001 defines a retail fish dealer:

              (4) 'Retail fj.L,h dealer' means a person
           engaged in the bus:.rless
                                   of buying for the purpose
           of sale to a consumer fresh or frozen edible
           aquatic products.

As we have pointed out earl::c:r, the club's permit to use the spoil
island specifies that the isL.andcamp shall be used for recreational
purposes only. Therefore, the!club may not obtain a retail dealer's
license for its camp on the spoil island itself. However, you are
concerned about the followire situation. The club about which you
inquire maintains a facilit:? in Corpus Chkisti, and the club has
received a retail fish dealelr'slicense in that city. Because it is
the club itself and not thcz location which is licensed, the club
argues that its retail license protects its members while on the spoil
island.

     The club bases its arguaent on the language of sectiou 47.001 of
the Parks and Wildlife Code which defines place of business:

           (9) 'Place of business' means the place where
           orders for aquatic products are received or where
           aquatic products are sold, including a vehicle if
           aquatic products art sold from the vehicle, but
           does not include t, public cold-storage vault,
           temporary receiving station, or vehicle from whkh
           no orders are taker-or no shipments or deliveries
           are made other thar to the place of business of a
           Mcensee in this state. (Emphasis added).

     The club contends that the spoil island site is analogous to a
"receiving station" and thus is not a "place of business," and,
therefore, the club's Corpus Zristi retail fish dealer's license will
allow club members to possess filleted fish et their spoil island
camp. We disagree.

     This office discussed these temporary receivj.ng stations in
Attorney General Opinion O-1596 (1939). The opinion concluded that
these temporary receiving sta:ions  must all be considered places of
busjness and thus separately licensed. However, in 1973, section
47.001 of the Parks and Wildlife Code was amended to exempt receivj.ng
stations from the license requirements. Acts 1973, 63rd Leg., ch.
125, at 263. Cealers now pay ,ne license fee which covers the central
place of business and all mtside receiving stations. The club
believes that because only thf:central place of business needs to be
Ucensed and the receiving    !:t:ation
                                     is covered by that  license, the
club's Corpus Christi license should protect the club members from
violations of article 66.216f;i)while they are on the spoil island.
It is our opinion, however, that the instant case of a recreational



                                   p. 863
.


    Mr. Charles D. Travis - Page 5    (JM-196)




    fishing club's attempt to cjrcumvent a statute must be distinguished
    from a wholesale or retail business's interest in avoiding the payment
    of multiple license fees.     We note that the receiving stations
    referred to in Attorney Gene::;11
                                    Opinion O-1596 (1939) were all on the
    mainland. We assume that the wholesale and retail dealer exception in
    section 66.216(a) was directc:d at these mainland receiving stations
    which were also the subject of the amendment to the "place of
    business" definition in sectjcr 47.001.

         Viewing recefving stations as mainlan~d facilities of an
    established business for prcfit, we conclude that the legislature
    intended that receiving starions could be exempted from section
    66.216(a) because they wou:~! be subject to periodic inspections.
    Although the legislature ha: declared that these receiving stations
    are not "places of busines::!" they do sometimes temporarily house
    filleted fish. We assume rhst the retail and whclesale dealer
    exception was meant to prote:t them. In our opinion, the disjunct
    "final destination or . . . \folesale or retail dealer" applies to the
    temporary receiving stations rhich are not "ultimate" destinations, in
    the sense that the filleted fish are later transported somewhere else,
    but which are subject to so-~ control - via their association with an
    established commercial fish ttsiness.

         No such guarantees are Ilresent in the case of the recreational
    club about which you inquirr. It is our opinion that the wholesale
    and retail dealer exception ':o the prohibition in section 66.216(a)
    applies only to the mainlEnd receiving stations of established
    businesses because these rect,lvingstations, unlike spoil islands, are
    subject to periodic inspectic#rby fish and game wardens.

         Moreover, it does not appear to us that the club qualifies as a
    retail fish dealer within th,zstatute definition of that term. Texas
    Parks and Wildlife Code, slxtion 47.001(4) defines a "retail fish
    dealer" as

              a person engaged ir;the business of buying for the
              purpose of sale tc a consumer fresh or frozen
              edible aquatic proc!t,cts.

    The facts as given to us ini,icatethat the club catches fish for its
    own consumption, that it is n,t engaged Iana commercial business, and
    that it does not buy fish fcmrthe purpose of sale. However, we need
    not pass judgment on the propriety of this recreational club's
    obtaining a retail fish dealcl,'slicense in the city of Corpus Christi
    because we conclude that its having this license will not serve to
    allow the club to possess hxdless or tailless finfish at its spoil
    island club.




                                     p. 864
Mr. Charles D. Travl~s- Page ,j (J-l-196)




                             .;LJMMARY

            Article 66.216(~: of the Parks and Wildlife
         Code prohibits the possession of filleted fish on
         a spoil island.




                                    Jq;&
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney Genecll

DAVID R. RICHARDS
Executive Assistant Attorney :zneral

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
DeVld Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                   p. 865
