Honorable Warden Terry          Opinion No. M-732
San Saba County Attorney
San Saba, Texas                 Re:   Whether 978f-5b, Vernon's
                                      Penal Code is constitu-
                                      tional.
Dear Mr. Terry:

     You have asked an opinion of this office as to whether
Article 978f-5b, Vernon's Penal Code is constitutional.
Your question, rephrased, is as follows:

        Is Article 978f-5b of the Penal Code of
     the State of Texas, which requires the purchase
     of a Fish Farm License at a sum of $25.00 before
     certain persons and firms can grow fish upon
     private property and sell the same, constitutional?

     Article 978f-5b, enacted in 1969 (Acts of the 61st
Legislature, Page 884, Chapter 298), reads as follows:

        "Section 1. The Parks and Wildlife Department
     is authorized and directed to issue numbered
     licenses to fish farmers operating a business
     on private lands. It shall be unlawful for
     any person, firm, or corporation to engage in
     the business of fish farming as defined in this
     Act without first obtaining the required license.

        "Section 2. Definitions:
        " (a) A 'Fish Farmer' is any person, firm
     or corporation engaged in the business of production,
     propagation, transportation, possession and sale
     of fish except propagated for bait purposes, raised
     in private ponds or reservoirs.
        "(b) 'Private Ponds' are defined as ponds or
     reservoirs located wholly within the enclosed lands




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    of an owner or lessor which is not connected
    to any stream carrying public waters not subject
    to overflow from any public waters.
       " (cl 'Owner' is defined as any person,
    partnership, corporation or firm or several
    persons licensed as 'Fish Farmers' by the Parks
    and Wildlife Department.

       "Section 3. Before any owner in this state
    shall engage in the business of fish farming
    for the purpose of sale, barter, or exchange,
    a 'Fish Farm' license shall first be procured
    from the Parks and Wildlife Department.  The
    annual fee for a Fish Farm license or Fish Farm
    Vehicle license shall be $25 and the license
    shall be on a form provided by the Parks and
    Wildlife Department.  Such license shall be
    valid from September 1 or issuance date whichever
    is later and shall expire August 31 following
    the date of issuance. A license shall be required
    for each separate premise on which Fish Farms
    are located. A 'Fish Farm vehicle license' shall
    be required for each vehicle transporting fish
    from Fish Farms for the purpose of sale from
    the vehicle. Vehicles transporting fish from
    Fish Farms when no sales are made from the vehicle
    shall carry a bill of lading reflecting the
    species of fish, number, Fish Farm owner's name,
    location, and license number of Fish Farm and
    the destination of the cargo, but said vehicle
    shall not be required to obtain a Fish Farm
    vehicle license.

       "Section 4. Each 'Fish Farm' shall maintain
    records reflecting sales and shipments of fish
    and such records shall be open for inspection
    by designated personnel of the Parks and Wildlife
    Department.

       "Section 5. Fish from 'Fish Farms' may
    be harvested by any mean, may be of any size,
    and may be sold at any time of the year, and
    in any county of the state.




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        "Section 6. Baas and crappie propagated
     under the terms of this Act may be sold only
     for stocking purposes and shall not be sold
     for resale except to another licensed Fish
     Farm. Bass and crappie may not be sold for
     consumption by individuals, cafes and restau-
     rants, or sale by Retail Fish Dealers, and
     Wholesale Dealers. All other fish propagated
     on 'Fish Farms' may be sold for any purpose.
       "Section 7. Chapter 630, 59th Legislature,
    Regular Session, 1965, is hereby repealed, all
    other laws and parts of laws in conflict here-
    with are repealed to the extent of conflict only.
        "Section 8. Any person, firm or corporation
     who fails to obtain the required license herein
     or who violates any provisions of this Act is
     guilty of a misdemeanor and upon conviction is
     punishable by a fine of nor less than $50 nor
     nmre than $200."
     Similar in both language and requirements to the above
quoted statute is Article 934a of Vernon's Penal Code, which
prescribes certain licenses for commercial fisherman and whole-
sale dealers in fish, oysters or shrimp or other edible aquatic
products. Article 934a on numerous occasions has been held con-
stitutional by the courts of Texas and the United States Supreme
Court as a vaiid inspection fee.  Gulf Fisheries Co. v. Darrouzet,
(D.C. 1927) 17 F.2d 374, affirmed 48 S.Ct. 227, 276 U.S. 124
72 L.Ed. 495; Ex parte Mehlman, 127 Cr.R. 257, 75 S.W.2d 98,'
(1903); Brownsville Shrimp Co. v. Miller,,287~S.W.?d 911 (Tex.
Civ.App., 1948, error ref., n.r.e.).
     As stated in Attorney General's Opinion No. 1473 (1939),
        "Licensing measures quite generally provide
     for the payment of a sum by the licensee to
     defray the expense of issuing the license and
     examining the applicant or supervising the
     business to be conducted. Such charges are
     usually denominated 'fees'. A license fee is
     not a tax, but a price exacted for the exer-
     cise of a privilege. It is levied under the
     police and not the taxing power, and therefore




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     differs essentially from both a propert& and an
     occupation tax.,As a rule, payment of ,the.
     license fee is made .a,.prerequisite
                                        to ,the,~right
     to exercise the privilege sought, and in many
     cases pursuit of the activity without previous
     payment of the requirements fee is made a
     criminal offense. (And cases cited) (Under-
     scoring ours) cf. 27 Tex.Jur., p. 892."
     We are cognizant of the growing commercial fish raising
industry in the State of Texas. Article 978f-5b patently has
as its object the regulation of commercial fish raising and
marketing with imposition of a license fee to support the re-
gulation costs. In our opinion, the fee imposed neither vio-
lates Article VIII, Sections 1 and 2, Texas Constitution, nor
the Fourteenth Amendment. See H. Rouw Co. v. Texas Citrus
Commission, 247 S.W.Zd 231, 234 (Tex.Sup. 19521, wherein the
Court said of such a statute:
        II . . . if its primary purpose appears to be
     that of regulation, then the fees levied are
     license fees and not taxes."
     It is therefore, our opinion that Article 978f-5b pre-
scribing license fees for "Fish Farms" is constitutional as
a lawful exercise of the state's police power. The law in
this respect is stated in Antieau's Modern Constitutional
Law, Vol. 1, Sec. 3.2, p. 296:
        "The federal government, under the Fifth
     Amendment, and the states, under the Four-
     teenth, can regulate the use of private prop-
     erty whenever such regulation is reasonable
     and reasonably related to the public health,
     safety, morality, or general welfare. It is
     only unreasonable, arbitrary or capricious in-
     terference with the use of private property
     that is unconstitutional. See Goldbatt v.
     Hempstead, (19621, 369 U.S. 590; Nectow v.
     c@&(%,l~~ZioZ          iit ] ii2 r 3: ,'ZJ&es
          .
     Our opinion, when we aonsider Article 978f-5b as a whole
and in the context of the relevant facts and circumstances




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Honorable Warden Terry, Page 5 (M- 732 )


related, is that the primary purpose of the enactment and
of the $25.00 fee by it is not the raising of revenue but
the regulation of the persons and property engaged in the
occuvation of fish farmina. This beina so, the license law
may be upheld. City of Ft. Worth v. G&f kefining Co., 125
Tex. 512, 83 S.W.2d 610, 617 (1935), in which the Court held
that:

           "A license law is one which confers upon those
        who comply therewith a right denied all others, and
        it is immaterial whether or not it provides a fee
        therefor. . ."

The Court there also pointed out that under the general rule
as to reasonableness of the fee, "the sum levied cannot be
excessive nor more than reasonably necessary to cover the
costs of granting the license and of exercising proper public
regulations. . .II (at page 618). Since we have been presented
no facts to establish any unreasonable fee, we must presume
that the statute is constitutional.

     The Act establishes a reasonable classification as to
the class of persons engaging in the occupation of fish
farming in private waters. See Texas Co. v. Burkett, 117
Tex. 16. 296 S.W. 273 (1927), 54a RR 1397. Thus, as held
in the above case, waters from springs which are neither
surface waters nor subsurface streams with defined channels,
nor riparian water in any form, are held to be the exclusive
property of the land owners. The statute does not operate to
discriminate against these landowners, since they are the
only persons who have any ownership in the waters described.


                          SUMMARY

        Article 978f-5b, which prescribes license fees
        for "Fish Farms", is constitutional as a lawful
        exercise of the state police power.

                                        truly yours,




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Prepared by Bennie W. Bock, II
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Glenn Brown
Ed Esquivel
Scott Garrison
Bob Lattimore
Roger Tyler

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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