--,   .



                        E                      ENE




   WILL   WILSON
AlTORNEYGENERAL
                              March 8, 1962

          Honorable Howard D. Dodgen    Opinion No. WW-1275
          Executive Secretary
          Game and Fish Commission      Re: Whether the Game &
          Austin, Texas                     Fish Commissionhas
                                            the authority to
                                            regulate the size of
                                            oysters to be taken
                                            from private oyster
                                            leases in Galveston
                                            and Chambers Counties
          Dear Mr. Dodgen:                  and related question.
                  You have requested the opinion of the Attorney
          General by your letter of January 16, 1962, as to the
          following:
                  Based on Article 4042, V.C.S., 1925; Article 968,
          V.P.C. 1925, Article 971, V.R.C., 1925, Acts 1957, 55th
          Leg. R.S. ch. 217, and other applicablestatutes:
                   1. Does the Game and Fish Commissionhave
                   ,authorityto regulate the size of oysters
                   to be taken from private oyster leases in
                   Galveston and Chambers Counties?
                   2. Does the Game and Fish Commissionhave
                   authority to fix a size of less than three
                   and one-half inches on oysters taken from
                   public reefs in Galveston and Chambers
                   Counties by proclaiminga smaller size
                   limit for any and all public reefs in that
                   area, or must such proclamationbe issued
                   separatelyfor each distinct reef?
                  The first ues;;i.;involves this langua e from
          Article 4042, V.C.8          l'...oysterstaken !
          deposited in the p&c    waters of this state as iz:eoig
          provided shall become the personal property of the
          person or corporationso taking or depositingthem."
                  It is contended that this language operates so
          as to deprive the Game and Fish Commission of the power
          of control over oysters taken and deposited in accordance
Hon. Howard D. Dodgen      page   2   (W-1275)



with Article 4042. The theory of this contention
is that State power of regulation is based upon
State ownerzhip of wildlife resources in the public
waters, Article 4026, V.C.S., 1925. By the trans-
fer of title in Article 4042, it is said that the
State (Game and Fish Commission)has lost all
 ;oC;ftiregulation, Jones v:State, 45 SW2d 612,
if       ., 1932). Therefore, it is contendedthat
the Game and Fish Commissionhas lost the power to
enforce size limit regulationsunder Articles 971,
V.P.C.'1925and 4042, V.C.S. 1925.
        Such a contentionis the equivalentof a
statement that private property is not subject to
regulationby the State, and this is true to a
limited extent. The Jones case, sunra, held that
the game and fish law'saT-exas did not apply to
game fish in a tank on private lands, since the
waters of such,a tank were not public waters and the
fish therein were not at large to swim wherever
their natural inclinationsshould dictate.
        The language quoted above does~not expressly
remove any statutory power given the Game and
Fish Commissionto regulate the oyster industry, It
merely transfers title to the oysters from the,State
to the oysterman.
        Under proper Constitutionaland Legislative
authority, the State has the power to regulate pri-
vate property in the interest of conservationof
natural resources, Constitution1876, Article 16,
Section 59, Marrs-v. Railroad Commission,142 Tex.
293, 177 SW2d 941, Brown v. Humble Oil and Refining
L&., 126 Tex. 296, 83 SW2d 935.
        Has the Legislatureexercised this power as
to oysters placed in accordancewith Article 4042 on
 rivate oyster leases in Galveston and Chambers
$ounties?
        The statutes governing the operation of the
Texas oyster industry are numerous, and to preserve
continuity in this opinion, they are set out in the
Appendix at the end of this opinion.
.   ’




        Hon. Howard D. Dodgen      pa@;e3     (m-1275)



                It will be noted that four classifications
        of oyster beds are contemplatedby the statutes. These
        are:
                1,) F;l;c or natural oyster beds. Article 4027,
                     . . ., 1925,
                2.) ;iEiau artificialoyster beds, Article 4028,
                     . . ., 1925,
                3.) Artificial leased oyster beds, grown from seed,
                    Articles
                    -^^-     4035 through 4041, inclusive,V.C.S.,
                4.) ~%.cial    leased oyster beds used to prepare
                    oysters for market, Article 4042, V.C.S., 1925.
                Oyster size limits are set forth in Articles.4042,
        V.C.S., 1925 and 971, V.P.C., 1925. In Article 4042, the
        application is to the taking of oysters from public beds for
        transplantingto one of the private categories. Article 971
        of the Penal Code is of general application, It will be
        noted that no part of Article 971 indicatesany legislative
        intent to exempt any cate,ory of private lease from its
        operation. Unless there fs some other statute dealing with
        the question which would take private leases out from the
        operation of Article 97l,,we must hold that it governs pri-
        vate leases.
                It is necessary to construe statutes passed at
        the same Legislaturetogether to ascertain the Legislative
        intent.
                All Acts of the Legislatureare presumed valid
        and conflicts in the Statutes must be harmonized if at all
        possible.
                Article 961, V.P.C., 1925, indicatesthat it is a
        complete defense to a prosecutionfor,a violation of oyster
        conservationlaws that the oysters in question were pro-
        duced on a riparian artificialbed. Therefore we hold that
        the State has relinquishedall right of control over
        oysters produced from riparian artificialbeds.
                Article 968, V.P.C., 1925, is cited as indicating
        a Legislativeintent that the State has similarly re-
        linquishedthe right of control over the lease type pri-
        vate oyster beds. Article 968 denounces as a crime the
        shipping or receiving for shipment of oysters from pub-
        lic beds during the period from May 1st to September 1st of
        any year. It further says that such shipment is not a
        crime when the oysters are "taken from a private bed
        located under the laws of this State."
Hon. Howsrd D. Dodgen    page 4    (w-1275)


        It IS apparent from this language that no vio-
lation of the harvest season law (Article966 V.P.C.,
1925, closed from April 1st to September 1st) is con-
templated by the Legislature in the case of private
oyster beds. We think,however,that any release of
State authority pursuant to the shipment law is limited
to seasonal criteria and does not affect the general
supervisionand control of the State, praticularly
since Article 968 has reference to seasons and Article
971 refers to sizes.

        We are aware of no other statute which makes
inroads on the general authority to regulate oyster
sizes conferredby Article 971.
        In connectionwith general authority.over
oystering in Chambers and Gslveston Counties, it is
necessary to take notice of Chapter 217, Acts of the
55th Legislature,1957. This law, set forth in the
Appendix,setsup penal laws setting the season, equip-
ment, hours and daily maximum harvest. The only re-
quirement in Chapter 217 as to size is that the oysters
be "of legal size.11 Ws take this to be a reference to
Articles 971 and l&.$2. We~expresa no opinion as to
the effect of Chapter 217 on riparian artificialbeds,
but we note that it purports to ap ly generally to
oysters in Galveston and Chambers Eounties, therefore
it must apply to private non-riparianoyster locations.
        It is the opinion of the Attorney General that
since Article 971, V.P.C., 1925, confers on the Game and
Fish Commission power to regulate oyster sizes and there
appears to be no statute which serves to deprive the
Commission of such power as to private, non-riparian,
leases, the Cqtiissionhas-authorityto regulate the size
of oysters taken from private, non-riparian,oyster
leases in Galvestonand Chambers Counties.
        As to the second question, the power to reduce
sizes on any reef includes the power to reduce sizes
on all reefs and a valid reduction may be accomplished
in an omnibus proclamationwithout naming specific
reefs.
Hon. Howard D. Dodgen     page 5     (w-1275)


                        APPENDIX
a)   Revised Civil Statutes, 1925
Article 402Z
        All oyster beds not designatedprivate shall be
public. All natural oyster beds and reefs of this State
shall be public, A natural oyster bed shall be declared
to exist when az many.as five barrels of oysters may
be found therein within twenty-fivehundred square feet
of any position of said reef or bed; and any lauds covered
by water containingless oysters than the above amount
shall be subject to location at the discretionof the
Commissioner,but this shall not apply to a reef or bed
that has been exhaustedwithin a period of eight years.
Article 4028
        Whenever any creek, bayou, lake or cove shall be
includedwithin the metes and bounds of any original grant
or location of laud iu this State, the lawful occupant of
such grant or location shall have the exclusive right to
use said creek, lake, bayou or cove for gathering, planting
or sowing oysters. The Commissionermay require the owner
of oysters claimed to be produced on such lands, when such
oysters are offered for sale, to make affidavit that such
oysters were produced on such lauds. If said creek, bayou,
lake or cove is not so included,then the exclusiveright
of the riparian owner shall, whenever the width of such
creek, bayou, lake or cove is two hundred yards or less,
extend to the middle thereof, and wherever the width of
such waters is more than two~huudredyards, extend one huu-
dred yards from shore. The right of the riparian owner
for planting oysters along any bay shore in this State
shall extend one hundred yards into the bay from high
water mark or where the land survey ceases. The riparian
owner's right to any natural oyster bed located on such
one-hundred-yardreservationshall not be exclusive.
Article 4035
        Any person who is a citizen of the United States
or any domestic corporationshall have the right of ob-
taining a location for planting oysters and making private
oyster beds within the public waters of this State, by making
written applicationto the Commissionerdescribing the
location desired. A fee of ,twentydollars cash must accompany
such application.
Hon. Howard D. Dodgen    page   6   (w-1275)


Article 4036
        When the applicationand fee provided for in the
preceding article have been received by the Commissioner
he shall examine thoroughlythe location desired, as soon
as practicable,with tongs, dredge or any other efficient
means. If the same be not a natural oyster bed or reef;
and exempt from location by any article of this chapter,
he shall have the location surveyed by a competent surveyor.
In making said location, said surveyor shall plant two
iron stakes or pipes on the shore line nearest to the pro-
posed location, one at each end of the proposed location,
which said stakes or pipes shall not be less than two
inches in diameter, and be set at least three feet in the
ground. Said stakes or pipes shall be placed with reference
to bearings of not less than three natural or permanent
objects or landmarks. And the locator shall place and
maintain under the direction of the Commissionera buoy at
each corner of his oyster claim farthest from the land. No
person shall locate water or ground covered with water
for planting oysters along any bay shore in this State,
nearer than one hundred yards from the shore.
Article 4037
        The Commissionershall give the locator a certifi-
cate signed and sealed by the Commissioner. Such certificate
shall show the date of application,date of survey, number,
descriptionof metes and bounds with reference to the
points of the compass and natural and artificial objects by
which said location can be found and verified. The locator
shall, before such certificateis delivered to him, pay
the Commissionersurveyor's fees and all other expenses
connectedwith establishingsuch location. If such sums, as
costs of the location and establishmentof the claim, are
less than twenty dollars paid to the Commissioner,the
difference in amount shall be returned to such locator by
the Commissioner. If such expenses amount to more than
twenty dollars the deficit shall be paid to the Commissioner
by the locator.
        At any time not exceeding sixty days after the date
of such certificateof location, the locator must file the
same with the county clerk of the county in which the lo-
cation is situated, who shall record the same in a well-
bound book kept for that purpose, and the original with a
certificateof registrationshall be returned to the owner
or locator; the clerk shall receive for the recording of such
certificatethe same fee as for recording deeds; the original
or certified copies of such certificateshall be admissable
in evidence under the same rule governing the admission of
deeds or certified copies thereof.
Hon. Howard D. Dodgen   page 7      (w-1275)


Article 4038
        Any person who shall be granted a certificateof
location as provided for in the preceding article shall be
protected in his possession thereof against trespass
thereon in like manner as freeholders are protected in
their possession as long as he maintains all stakes and
buoys in their original and correct position, and complies
with all laws, rules and regulationsgoverning the fish
and oyster industries.
Article 4039
        No person, firm or corporationshall ever own- lease
or otherwise control more than one hundred acres of land
covered by water, the same being oyster locations under this
chapter, and within the public waters of this State; and
any person, firm or corporationthat now holds more than one
hundred acres of oyster locations, shall not be permitted
hereafter to acquire, lease or otherwise control more; pro-
vided that no corporationshall lease or control any such
lands covered by water unless such corporationshall be duly
incorporatedunder the laws of this State.
Article 4040
        Any person, firm or corporationwho has secured, or
may hereafter secure a location fora private oyster bed in
this State, shall keep the two iron stakes or pipes and buoys
as provided for by law, in place, and shall preserve the marks
so long as he is the lessee of said location, and this shall
apply also to any person, firm or corporationacquiring any
location by purchase or transfer of any nature, and said lo-
cator or the assignee of any locator shall have the right to
fence said location or any part thereof; provided that said
fence does not obstruct navigation through or into a regular
channel or cut leading to other public waters.
Article 4041
        The owner or locator of private oyster beds under the
foregoing provisionsehallnot be required to pay any rentals
on such locations for a period of five years, or till such
time as he shall begin to market or sell oysters from such
location or bed. When such locator shall begin to sell or
market oysters from such location,he shall pay the State one
dollar and fifty cents per acre per annum and two cents a
barrel on oyster sales. Failure to pay such rentals by the
first day of March each year shall annul and be a forfeiture
of his lease. And if oysters are not marketed or sold from
such location within five years from the date of location, such
location shall become void.
Hon. Howard D. Dodgen     page 8     (w-1275)


Article 4042
        Any person who is a citizen of the State of Texas,
or any corporationchartered by the State to engage Fn the
culture of oysters or transact business in the purchase and-
sale of oysters and fish, and composed of American citizens,
wishing to plant oysters on their own oyster locations or
take oysters from oyster reefs and public waters of the State
for the purpose of preparing them for market, shall make
applicationto the Commissionerfor permission to do the same.
In such applicationthe applicant shall set out distinctly
the purpose for which he desires such oysters and also the
number or amount that he desires to take from the beds and
waters mentioned. The Commiaaionermay grant such permit or
he may refuse to do 80. If he should grant such permit, he
shall require the applicant to take the oysters he is author-
ized to take from beds or reefs designated by such Commissioner
and name them in the permit, and it shall be unlawful for
any person to take oysters of less size than three and one-
half inches from hinge to mouth from any such designated beds
or reefs unless authorized to do so by the Commissioner;he
shall mark off the exact area of such beds or reefs from
which such oysters shall be taken; he shall designate the
bottoms on which such oysters shall be deposited, if'they
are taken to be prepared for market; he shall require the
applicant to cull the oyatera on the gro.undswhere they are to
be located; he shall state what implementssuch as tongs
and dredges shall be used in taking such oysters, and he shall
make and enforce all other regulationshe may think necessary
to protect and conserve the oysters on such public reefs or
beds. All oysters taken from or deposited in the public
waters of this State as herein provided shall become the
personal property of the person or corporationso taking or
depositing them. Such~person or corporationshall, by buoys
or stakes or by fences, clearly and distinctlymark the
boundaries of the private bed planted, or the boundaries of
the deposit of oysters made for preparationfor market; and
no prosecutionof anyone shall be permitted for taking such
oysters unless the boundaries of such beds and deposits are
establishedand maintained,


b)   Penal Code, 1925
Article 961
        When any creek, bayou, lake or cove shall be in-
cluded within the metes and bounds of any original grant
or location of land in this State, the lawful occupant of
Hon. Howard D. Dodgen    page 9   (W-1275)


such grant or location shall have the exclusivewrightto
use said cr,eek,lake, bayou or cove for gathering, plantin
er sowing oysters within the metes and bounds of the officfal
                                                            '
grant or patent. The C.ommissioner may require the owner of
oysters produced in said waters when offered for sale, to
make an affidavit that such oysters were so produaed. The
failure of the person claiming that such oysters were pro-
duced on his ~privateoyster bed or bottoms, to have and to
show such affidavit to the Commissioneror one of his
deputies, or to whoever he offers such oyeters for sale,
shall be presumptivethat such oysters were taken from a
public bed, and on prosecutionfor the same it shall de-
vo~lve.onthe defendant to show that such Oysters were taken
from his private bed, or bottom of oysters.
Article 966
        Whoever shall take or cat&oysters from any public
beds or reefs for sale or for market from the first day of
April to the first day of S.eptember,shall be fined not less
than ten nor more than two hundred dollars. Each day ia a
separate offense. That part of'the Laguna Madre which is
South and West of Baff.ins Bay is exempt from the operation of
this article.
Article 971
        Any person offering for sale, or who shall sell, any
cargo of oysters which shall contain more than five per cent
young oysters shall be fined not less than ten nor more than
two hundred dollars. Any oyster that measures less than three
and one-half inches from hinge to mouth shall be deemed a
young oyster for the purpose of this chapter. The Commissioner
is authorizedto permit the taking of oysters of less size
than three and one-half inches from any reef he may designate
but it shall be unlawful to take any oysters from reefs other
than those designated by such Commissioner,and any one taking
such oysters smaller in measurementthan three and one-half
inches from hinge to mouth from other than such reefs as de-
signated by such Commissionershall be fined not less than
twenty-fivenor more than two hundred dollars.

c) Session Laws
Chapter 217, Acta 1957. 55th Legislature
Section 1. It shall be unlawful to take or catch oysters
from the public;waters of Chambers and Galveston Counties for
the market from the first day of April to the first day of
November.
Hon. Howard D. Dodgen   page 10     (w-1275)


Section 2. In the public waters of Chambers and Galveston
Counties no person shall operate or have in use from any
one (1) boat more than one (1) oyster dredge which shall
not exceed thirty-six (36) inches in width across the
mouth and shall not have a capacity in excess of two bushels.
Section 3. During the open season herein provided, it
shall only be lawful to take or catch oysters from the public
waters of Chambers and Galveston Counties from sunrise to sun-
set.
Section 4. No person, firm or corporationshall~haveon
board any commercialfishing boat, barge, float, or other
vessel while in the public waters of Chambers and Galveston
Counties more than fifty (50) barrels of oysters which shall
be culled oysters of legal size. If a boat is pulling or
towing another boat or boats, then such towing and towed
boats combined shall not have aboard more than fifty (50)
barrels of oysters, culled and of equal size. As used here-
in, a barrel is equivalentto three (3) bushels.
Section 5. Any person violating any of the provisions of this
Act shall be fined not less than Twenty-fiveDollars ($25)
nor more than Five Hundred Dollars ($500).

                    SUMMARY


       The Game and Fish Commissionhas no regulatory
       power over private cultivated oyster leases
       operated by the riparisn owner located within
       an original grant of land from the sovereign
       of Texas, other than that the Commissionmay
       require an affidavit at the time of sale that
       the oysters were produced from such a reef.
                          2
       The Game and Fish Commissionhasauthorityto
       regulate the size of oysters taken from other
       private oyster leases in Galvestonad Chambers
       Counties.
                          3
       The Game and Fish Commissionmay lower the
       size of oysters taken from public reefs in
Hon. Howard D. Dodgen      page 11    (w-1275)



          Galveston and Chambers Counties by a general
          proclamationor by a specific proclamation.
                              Yours very truly,




JEL:bjh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Gordon Zuber
Virgil Pulliam
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
