                                                                545




       OFFICE   OF THE   ATTORNEY     GENERAL   OF TEXAS
                             AUSTIN




RonorableA. C. %nborn
crL%InalDistrict Attorney
Rarris County
Eouston2, Texas
Gear Sir:                  Opinion No. O-6525
                           Re:




      ' Tour request for 'en=;+)
reads in part, 3s follows:
                                                y thi G~overl
    nor anenaing Ii0                            er 11, Acts
    of the 46th La                            nonresident
                                              nt cozkieroi31
                                              ses for 3ame.
                                               licenses to
                                               to nonresident
                                              st 31st of
                                           your opinion 3s
                                      ct cencels 311 licenses
                                      ued to nonresident

                    ng the above inquiry as it pertains to
                    cm131 fisherman*3 license, ?Veinvite
                    ction 1 of House Dill 683, Chapter 11,
                    xth LeGisletuce,appenring 3s Article
                    nnoteted Pen31 Code. said  section read-

        .%ec. 1. A *nonresidentcomercial fisher-
    man* for the purpose of this Act is hereby Gefined
    3s folloV~s:
         "'Any person v&o is a citizen of any other
    stete, or any person who has not contlnusllybeen
                                       flonorable
                                                A. C, Nlnborn, Pag3 2


                                           a bone fide resident of thia state for a period
                                           of tdme more than twelve (12) months, end who
                                           takes, catches, or assists in taking or cotching,
                                           fish or shrimp or oysters or any other edible
                                           aquatic life from the tidal sslt waters of this
                                           State for pay or for the purpose ofsale, b3rter,
                                           or excb3.npe,'n
                                                Section 1 of House Bill No. 211,'Aots of the Forty-
                                       3bt.hLegislature, in emending the above quoted Artiole reads
                                       88 follows:
                                                Wection 1. A 'Non resident ComnercielFisher-
                                           menf,for the purpose or this Act is hereby defined
                                           as follorvs:
                                                *'Any person who is 3 citizen -ofeny State,
                                           or ans DCrUOnvihoh3s not continuallybeen 3 bona
                                           fide "tihabitantof this state for 3 bsriod of t&e
                                           more than Welvs (12) :nonths,the word person shsll
                                           Include partnerships,associatiions 3ncicorpor3tions
                                           U&o have not continuallyhad 3 bona fide place of-
                                           business in this state for a period of ti1
                                                                                    116more
                                           than twelve (12) months, and who tekes, assists iu
                                           taking or catching,fish or shrimp or oysters, or
                                           eny other edible aquatic life from the tidsl salt
                                           waters of this state for pay or forthe purpose of
                                           sale, bertor or exchanee+(" (Emphasisadded)
                                                 A comparisonof the above sections discloses that
                                       the amending legislationfunctions only to broaden the scope
                                       of those persons required to hold 3 nonresidentco~mmeroiel~
    ‘-.
          ”
                                       fisherman'slicense. This view is supported in that the Two
                                       hundredDollar (+200.00)iee for such licenses remains nn-
:             i
                                       ch3ng3a.
                                                Therefore, it is our opinion that House Bill No.
                                       211,Aots of the Fortg-ninthLegislaturedoea not canoe1 said
                                       licensesand those fishermen operstinp,thereundermay continue
                                       untilAuGust 91, 1945, the normal date of expiration.
                                                 )n determiningyour inquiry 3s to whether Seotion
                                       4 of House Dill Xo, 211, Aots of the Forty-ninthLegislature,
                                       canoelsall prior licenses issued on nonresidentcdnucercial
                                       fishermen'sboata, we call to your ettention that prior to




                                ,i<
_,_           c _.__..   -...     .)
         A. C, Winborn, Pege 3
JJJnorable


passage of the above Act, the law contained no speoific pro-
visionpertaining to the licensingof nonresident commercial
fishing boots. Resident and nonresident oo,amercial fisher-
can both receiving tholr boat llcenoea by virtue of Article
9943, Section 3, Subsection 7, V.A.P.C., sa%a subsection
readingas follows:
         "Fish Boat License; for boats equipped with
    e motor of any kind or with sells, fee Three Dol-
    lers‘($3).n
          Seotions 2 and 4 of Eouse Bill no. 211, Acts of
the Forty-ninthLegislnture,have made specific provisions
for thenlicensing of nonresident commercial fishing boats;
said sections reodlng es follov~s:
         Sea. 2. A *IJonresid&tCommercialFishing
    Boat' for the purposea of this Act is Imreby de-
    fined as follows:
         "'Any boat or vessel, which Is reglstered~in
    any other State, or which hasnot continually been
    registered in this State f6r a period of time more
    than twelve (12) months, or which is not owned by
    any person,.partnership,association of persons
    or corporationwhich has h8d e bona fide place of
    business in this State for 3 period of time more
    than twelve (12) months, end which is used for,the'
    purpose of tekingj or assisting in taking or catch-
    ing, fish, shrimp, oysters or any other edible
    aquatic life from the tidal salt waters of this
    Steto for pay or for the purpose of sale, barter
    or exchange."
         "Sec. 4. License for Nonrealdent Commercial
    Fishing Peak required;-amount of fee. Before any
    *NonresidentCommercial Fishing Boat' shall be
    used for the purpose of taking or assisting in
    taking or catching, fish, shrimp, oysters or any
    other edible aquatic life from the tidal salt
    waters of this State for pay or for the purpose
                                 3 license to be knovm
    of sale, barter or 'exchan.Se,
    es 'lionresidentCo-mmeroielFishing Poet License',
    shall first be procured from the Came, Fish 3nd
    Oyster Coa31aslon of Texas, or one of its author-
    ized agents, privilegingthem.90 to do.
            HonorableA.      C. Sinborn, Page 4
 .,.            ‘.
.I._.   :

                     “The fee ‘fora Nonresident CoznmercialFishing
                Boa’tLicense shall be Two Thousand Five Bundred
                ($2500.00)Dollars.”
                      For a oonslderationof the constitutionalityof
 : .,       the above sections of House Bill No. 211, Aots of the Porty-
 ..*.       ninth Le&slature, rvequote from the following authorities:
                      Voluma 11, Seotion 34, Ruling Case Law, page 1046,
            reading, in part, as follows:
                     “By reason of,the fact that title to fish
                and Earnowithin the boundaries of a state is vest-
                ed in the ~onle of the state in their sovoreion
                capacity, ihe-Legislaturebas greater pov:erov&
                such property than it has over almost any other
                conznodity,and in order to preserve such property
                to the people of the state, the &~vnakin& asselrl-
                bly may cneot that only citizens of the state shall
                take fish from the weters v:lthinits jurisdiotion
                 .   .   .


                     “. . .  Likewise, the state( having pov;erto
                exclude nonresidents from fishing In the state,
                may grant them the privilec,eupon conditions&if-
                ferent from those it imposes on its residentsas,
                for example requiri~nga larger boat license fee.”
                (Emphasisadded)
                     On this point see McCready v. Va., 94 U. S. Tieports
            395;Qroer v. Bonn., 161 I?.3. Reports 519; People v. Setun-
            “ky,126 N. Vi, 844, 161 &?itih.
                                          624.
                      Bearing in mind that the state through its sovereign
            Foviersmay oonstitutional.lyexclude nonresidentsaltagether
            fromits territorialwaters,.,weinvite your attention to Vol- .
            Rae 33, Section 21 of American Jurisprudence,pas!o342, read--
            in&,In pert, es,follows:
                      “Sec. 21. The oonstitutionalinhibitionas
                 to impairment of .the obligationof’aontractsdoes
                 not extend to licenses. A license itself is not
                 a oontract between ,thesovereigntyand the licensee,
                 and is not property in ‘any constitutionalsense.
                 It does not oonfer a vested, permanent or absolute
                 right, but only a personal privilege to be exar-
                 cised under existing restrictionsand such as may
                                                   .
             .       I




         .       .




                                                                          .

,::
                         Honorable A. C. Wnborn, Pace 5


                             thereafterbe reasonably imposed. Free latitude
                             is reserved by the povernmentolauthority to im-
                             pose new or additional burdens on the licensee or
                             to revoke the license. Moreover, this is I& pen-
                             era1 rule notwithstanding,the expondituroof money
: . _.                       by a licensee in relianoo upon the license. .,. a"
                             IDnphasis added)                  .

                                  .On this point see State ex rel Ohsnan EzSons Co.,
      :‘;                Ino,, V, Starkweather, 7 N. X. 26 747; Olson et al. v. State
                         ConservationCommission, 293 N. %. 262, 255 ':!is;473.
                                   Thus it is seen that the state, after choosing to
                         crant liccnsas to nonresidents,mey impose nevior additional
                         burdens upon these liaensoas, or may revo!cessid licenses
                         altogether,without abridging the obligationsof a contraat,
                                   This being true, Article 4, Seotion 2, of the Fed-
                         eral Constitution,entitled the nDrivilegesand &munitios*~
                         clause, is the remaining fsctor to be met in our determina-
                         tion of the effect of House l3111No. 211, Acts of tho Forty-
                         ninth Legislature,as pertains to nonresidentco.mneroi3l
                         fishermen'sboat lioonsos. In this oonnection,we direct
                         your attention to State v. Ashman, 135 S. Y. 325; 123 Term.
                         654, a case which contains a good statement of tha .majority
                         rule in the United States. Said statement reads as follows:
                                  "The rights, privileges, and inmunitieswhich
                             are secured by this clause to the ~inhabltantsof
                             the several states do not include 8ny riflhtsin
                             the,property of the several statesheld in trust
                             for their own inhabitants, and laws which prohibit
                             them in whole or in part from participatingin the
                             benefits.of that property do not deprive-themof
                             any constitutionalrights. The majority of the
                             states have enaoted laws prohibiting or limiting
                             the rights of nonresidents to take game or fish
                             within.their respective .boundaries,and, upon the
                             prinqiples above stated, thia legislationhas been
                             Invariablyupheld by all the oourts."
                                   In the light of the above oited suthorities, it is
                         the opinion of this department that Section 4 of House Bill
                         no. 211, Acts of tho Forty-ninth ~JeGiSIStUro, cancels all
_             .   1                                                                                           :   550
                      i
                                                                                                          .
                      i
 .“::‘,::“                ~onoradleA.            C. i&born,‘Page 6


                      ’ exfstinglicenses issued on nonresfdentcomerolal rishing
.-
                        boats;the bill having become effeotive as of April 2, 1945,
                        by passing v;iththe required number of votes In eaoh house
. .
                        of th.eLegislature and sipned by the Governor.
                             ..
..I                                                             Yours vory truly
                                       .
    :
                                                           ATTORQq GENmL OF TEXLS

        , .: .,
         .~,._

                                                                                         Benjamin xoodall
                                                                                               Assistant



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