                        HE                                  NEY              GEM
                                             OF          TEXAS




Honorable         Clayton          T.    Garrison                             Opinion            No.     H-    92
Executive         Director
Texas      Parks        & Wildlife          Department                        Re:            Status        of Galveston
John H.         Reagan       Building                                                        Ship        Channel           under
Austin,         Texas      78701                                                             Shrimp            Conservation
                                                                                             A,ct,       Article          407513,
Dear      Mr.     Garrison:                                                                  V.T.C.S.


          Your     recent      letter        to this       office         states     as follows:


                              “Section            6 of the Texas              Shrimp             Conservation
                    Act,     Art.        4075b,       V.A.        T.S.,       governs            the taking           of
                    shrimp         in the inside             coastal        waters          of the State             of
                    Texas.          Section         6(b)     of the Act            provides            that it shall
                    be unlawful            for     any person             to take         or catch         or attempt
                    to take        or catch,          shrimp           of any       size     or    species           within
                    the natural            or man-made                 passes        leading            from    the
                    inside     waters             to the outside            waters         of this        State.


                               “The        Galveston            Ship      Channel is         situated          between
                    Galveston            Island      and Pelican             Island         as indicated              on
                    the attached            map.           At     one time         this     channel           was     dredged
                    and channel             markers             were      maintained              for    boat       traffic
                    to and from             West      Galveston             Bay     and the Gulf               of Maxico.
                    At     the present            time     it is not maintained.                        Another           channel
                    has     been        constructed             and is      maintained             through           the nor-
                    thern     part        of Pelican            Island.       At     certain        times       of the
                    yea=,      especially            during        the spring              bay    open        season,
                    there     is a great            influx        of small         shrimp          into    this      old
                    channel area.    A 300 pound daily limit                                      is set for ‘,a
                    commercia~l   bay shriinp boat operator’                                      during the entire                 year.
                    At the time            of the shrimp               migration             through           the Galveston
                    Ship     Channel it becomes                    extremely              easy     for     any and all
                    commercial               shrimp         boats         working          such      channel         to exceed
                    the daily           limits.




                                                             p.    424
Honorable         Clayton         T.     Garrison,              page        2        (H-92)




                                 “Given         the above               information,                the following
                   questions             are     submitted               for     your           consideration:


                                 “1.       Is the Galveston                      Ship           Channel       a pass         within
                             the meaning                  of Section                 6(b)       of the Shrimp           Conser-
                             vation            Act,      Art.           4075b,         V.A.        T.S.?


                                 “2.       In the event                  you find           the Galveston              Ship
                                 Channel         is not a pass,                      is the channel             to be con-
                                 sidered         a major            bay        for     purposes            of Section             6 of
                             the Shrimp                  Conservation                   Act,       Art.      4075b,          V. A. T. S. 7 ”


         The      purpose         of the        Texas         Shrimp             Conservation                Act     is declared             in 5 1
of Article        4075b     as follows:                 “[I]t      is hereby                declared         by the      Legislature                of
the State      of Texas          to be the public                   policy           of this        State     that     the shrimp             resources
of the State        of Texas            be conserved                    and protected               from       depletion            and waste.               .   .   . ”


         Section       6b provides               specifically               as follows:


                                 “(b)    It shall        be unlawful                  for       any person,            at any
                    time,        to take         or    catch,.           or to attempt               to take         or catch,
                    shrimp             of any     size        or    species            within        the natural             or
                    man-made              passes          leading           from            the inside        waters          to
                    the outside            waters          of this          State.          ”


         While      the Texas             Shrimp          Conservation                      Act,     supra,          fails     to define           the
term     “pass”,       Texas            Courts         have        construed                the term         in a similar                factual     and
statutory      context.            In Gibson             V.     Sterrett,             144 S. W.            1189 (Tex.         Civ. App.,             San
Antonio,       1912,      no writ),            the plaintiff              sought            to enjoin        the Game              and Fish
Commission           from         arresting            him         for    violating              a Penal       Code      Provision             which
prohibited         the taking           of fish        except            by hook        and        line     in all    water         within         one
mile     of either        side     of all passes   leading   from                                the Texas  coast                 waters      into
the Gulf      of Mexico.             Plaintiff argued    that the                               “pass”,  in which                 fishing      was
prohibited,         was     restricted                to that part              of the channel               which       was        bounded          on
either     side    by coastal             lands.          The           court        relied        on testimony              which        showed         a
defined  channel,            through which tide-water    flowed  and ebbed,  pleading for sev-
eral miles   from            the interior end of the strait  separating  Padre and Mustang




                                                                   p.     425
Honorable          Clayton         T.      Garrison,            page        3 (H-92)




Islands      (Corpus          Christi          Pass)      to Corpus               Christi        Bay.           Finding        that the
purpose         of the enactment                  was     “to     enable          fish    at all          times     to pass         to and
from      the coast         waters         of the State              without           being    molested              by the character
of fishing         prohibited,            ” the Court           held        that the channel                  extending          from         the
strait     between          the is,lands           to Corpus             Christi          Bay    was        as    much        a part       of
the pass         leading      from         such     coast        water           to the Gulf           as    the strait        itself.          The
court     concluded:


                                  “The      construction                of the word              ‘pass’         insisted
                     by appellant                would        defeat        the evident          purpose            of the
                     statute.           ‘The      purpose            the Legislature                  had in view             was
                     to enable            fish    to have         free       access         to and from               the coast
                     waters,            and if they            are     allowed           to be intercepted                 in or
                     near      the channel               aforesaid           the purpose                  would     be defeated.
                     In arriving            at the        sense        of the term              ‘all       passes’,        the pur-
                     pose      it had in view                 must       be consulted.                ”


          Fol .lowing         the holding              in Gibson            v.    Sterrett,            supra,         the Court          of
Criminal          A,ppeals         in Gavinia.           v.     State,       145 S. W.           594,        596      (Tex.    Crim.            1912)
held     that     “the     pass      intended          by the          legislative             act     was       certainly       the entire
length      of the channel                from     the bay           to the gu,lf. ”             In A,ttorney             General          Opinion
No.      V-119,1    (1951),        this    office        relied        on Gibson,              supra,          and Gavinia,              supra,
in recognizing              that     the    Legislature                intended          to protect            the free        passage             of
fish     in inside         coastal        waters         to and from               outside           coastal       waters.


          A similar           construction               of the term               “pass”,           as used          in Section         6(b)
of the     Texas         Shrimp         Conservation                 Act,        supra,        is warranted               here      where
the manifest             purpose          of the Act,           supra,            as     expressed            in $1,       is the pro-
tection      and conservation                    of shrimp.


           That     the Galveston                 Ship    Channel            is no longer                 maintained        i s not
material          to the question                of whether            the channel              is a “pass”.               Costa1 tide-
waters       flow     and ebb through                    the channel;              shrimp            and other         esturine          and
marine          wildlife      migrate            through        the channel               to and from              the Gulf;         the
Legislature,             in enacting             the     Texas         Shrimp           Conservation               Act,       intended
to conserve           and protect                the shrimp            resources               of the State;           and,      as pre-
viously         construed          by Texas            courts,          the term           “pass”           is not restricted                 to




                                                                  p.     426
Honorable        C,layton          T.     Garrison,         page     4       (H-92)




that   outer     strait      intersecting             the Gulf,          but includes  a channel   leading
from     an inner         strait        far    into   the bay      itself.     All of this clearly   indicates
that   the Galveston           Ship           Channel      is a “pass”           within    the meaning             of $ 6(b)
of the     Texas    Shrimp              Conservation         Act.


         Our     affirmative              response         to your       first    question        renders      your     second
question       moot.


                                                        SUMMARY


                               The        Galveston        Ship     Channel           is a “pass”         within
                   the meaning                 of 5 6(b)    of the Texas              Shrimp      Conservation
                   A,ct,      Texas           Revised      Civil     Statutes,         and Article         4075b,
                   1966.


                                                                             Very      truly     yours,




                                                                             Attorney          General      of Texas


APPROVED:




DAVID       M.     KENDALL,                   Chairman
Opinion        Committee




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