                                                    R-962


       THEA            ORNEXGENERAI.




                        December 23,    1947

Hon. H. D, Dodgen
Executive Secretary
Game, Fish & Oyster Commission
Austin, Texas                     Opinion No.   V-463
                                  Re:    The inspection tax
                                         liability of shrimp
                                         imported to Browns-
                                         ville from a Mexi-
                                         can port on a boat
                                         temporarily regis-
                                         tered under the
                                         Panamanian Flag but
                                         actually having
                                         Brownsville as its
                                         home port,
Dear Sir:
            Your letter of November 24, 1947, is as follows:
         "This Department is uncertain as to the
    application,of House Bill 379, Section 10,
    Paragraph B, as it applies to a boat owned
    and operated under the following conditions:
         "The boat in question, The Lulu, is own-
    ed by Robert P. Miller, of McAllen, Hidalgo
    County, Texas, a native Texan. Mr. Miller
    has lived in Hidalgo County for many years,
    Mr. Miller and~his brother own two food pro-
    cessing plants, one at.San Carlos, in Hidalgo
    County, and one in Mission, Hidalgo County,
    Texas ., Mr. Miller purchased this boat from
    the Maritime Commission of the United States,
    and has a temporary registration under the
    Panamanian Flag, inasmuch as the vessel has
    been used by Miller in South American fruit
    trade. The boat has never been used in any
    type of fishing operations. This boat, while
    its temporary home registered port under the
    admiralty laws is the City of Panama, actually
    operates out of Brownsville, Cameron County,
                                                            ..   .

Hon. He I),Dodgen, page 2   (V-463)



    T~xw, as its home port. This boat has a
    United States customs export number assigned
    to it, M.rIr,
                Miller desires to use this cargo
    boat for the purpose of exporting shrimp from
    Mexico, These shrimp will not be taken from
    boats at sea, but will be purchased at a Mexi-
    can port, packaged and exported under a Mexi-
    can export license and bill of lading, and
    brought over water to Brownsville and there
    transported to their food processing plants
    for handlingg and after the shrimp have been
    processed, will be sold throughout Texas and
    the United States generally6
         'We shall appreciate your opinion on the
    following questions:
          "1, Is inspection tax due on a cargo of
     shrimp or other edible marine products when
     brought into this State aboard the boat above
     described when said products were brought in
     from outside of the jurisdictional limits of
     this State?
         "2* May a boat as above described be li-
    censed with a fish boat license and thereby be
    eligible for the above described operations
    without payment of inspection tax?"
          The pertinent provisions of,House Bill 379, be-
ing Chapter 59, of the Acts of the General Laws of the
50th Legislature, Regular Session, p0 86 is an amendment
of Vernon's Annotated Penal Code, Art, 9$&-l, and is as
follows:
         T3eco 2, That Section 10 of Article
    93413-1,Penal Code of Texas, the same being
    Acts  1945, Forty-ninth Legislature, page
    78i chapter 55, Section 1, be amended so as
    to be and hereafter read as follows:
         "QSection 10, Whereas, the taking of
    fish and marine life outside of the terri-
    torial waters of the State of Texas affects
    and endangers the supply within the State;
    and whereas the State of Texas has no ade-
    quate means of supervision and inspection
    of the sanitary conditions, and of sanitary
    control and inspection of the personnel of
.   .

        Hon. H. D. Dodgen, page 3   (V-463)


            unlicensed boats or vessels operating out-
            side of the territorial waters of this
            State and engaged in commercial fishing;
            and whereas such boats and vessels may dis-
            charge their cargo and sell their marine
            products in Texas ports without license or
            supervision; and whereas such practice en-
            dangers the life and health of the citizens
            of the State of Texas; and the supply of
            game and fish within the State; therefore:
                 "'(a). It shall be unlawful for any
            boat or vessel engaged in commerci~a~l fish-
            Giz, which said boat or vessel is: not  licensed
            under Article 9311.
                              of the Penal Code of Texas
            as amended, to~discharge or unload any com-
            mercial cargo of fish; shrimp, oysters or
            other marine products, or to sell or process
            the same within the State of Texas unless and
            until the same has been duly inspected at a
            port of entry as hereinafter provided and
            found to be in a sanitary condition under the
            rules and regulations as hereinafter provided
            and shall have paid or secured the payment of
            the inspection fee or tax as hereinafter pro-
            vided for the inspection thereof.
                 "P(b). There is hereby levied an in-
            spection fee or tax of Ten Dollars ($10) for
            each one hundred (100) pounds or fraction
            thereof of any cargo of fish, shrimp, oys-
            ters or other marine products sought to be
            discharged or unloaded from any unlicensed
            commercial fishing boat or vessel within the
            territorial limits of Texas. And the same
            shall be paid or secured to be paid by a cash
            or security bond made payable to the Game,
            Fish and Oyster Commission of Texas, as a
            prerequisite for inspection and the unloading
            and discharge thereof.
                 "'(c)a The Game, Fish and Oyster Com-
            mission is hereby authorized to employ such
            necessary personnel and patrol boats in order
            to enforce the provisions of this Act and the
            jurisdiction of the State of Texas, within
            territorial limits as provided by law.
                 "l(d). The Game, Fish and Oyster Depart-
            ment shall provide a suitable number of ports
                                                             .   .

Hon. H, D0 Dodgen, Page 4   (V-463)


     of entry for such unlicensed commercial fish-
     inp vessel, and no such cargo as above pro-
     vided mav be unloaded or discharned extent in
     such ports ~of entry, and then only after'no-
     tice and application to the official and agent
     of the Department at such port of entry and
     after inspection, And the Department is here-
     by authorized, acting in conjunction with the
     State Health Department of Texas.to provide for
     rules and regulations governing such ,inspec-
     tion including such bacteriological, chemical,
     and toxic tests as may be required, and for
     blood tests and personal examinations of.the
     personnel and members of the crew of such un-
     licensed boats or vessels- and based upon such
     rules and regulations to determine whether or
     not the unloading, discharge, processing,or
     sale of such cargo shall beedetrimental to the
     teJ;land    welfare of the cltlzens of the State
              ; and no suit shall ever be filed or
      'udgment granted against the Game, Fish and
     dyster Commission, its officials or agents by
     reason of any delay resulting in the damage to
     any cargo or by reason of the failure to grant
     any permit for the unloading, discharge, pro-
     cessing or sale of such cargoQPw
          Article 934, Penal Code of 1925, mentioned in
subsection (a] of Section 10 was superseded and repealed
in 1933 by Acts 43rd Legislature, ,lst C, S,, p0 85, which
Act, as subsequently amended, is now Article W+a, V.P.C,
The provisions thereof with which we are here concerned
respectively read:
          "Section 1, The following words, terms
     and phrases used in this Act are hereby de-
     fined as follows:
          "(a) A 'commercial fishermanP is any
     person who takes fish or oysters or shrimp
     or other edible aquatic products from the
     waters of this State, for pay,,or for the
     purpose of sale, barter or exchange.
          "Section 2, Before any person in this
     State shall engage in the business of a ?com-
     mercial fisherman" D o 0 or use or operate a
     0 0 0 boat D o 0 for the purpose of catching
     or taking any edible aquatic life from the
     waters of this state for pay, barter, sale or
Hon. H. D. Dodgen, page 5   (V-463)


     exchange, the proper license provided for in
     this Act privileging them so to do shall first
     be procured by such person from the Game, Fish
     and Oyster Commission of Texas or from one of
     its authorized agents."
           USectlon 3. The license and the fees to
      be paid for same are hereby provided for in
      this Act and are as follows:
            "(1) Commercial Fishermen's License,
      fee Three Dollars (#3.00).
            n. . .

            "(7). Fish Boat License, for boats equip-
      ped with a motor of any kind or with sails,
      fee Three Dollars ($3.00)."
           Article 934b-1 V.P.C. was enacted In 1939
(Acts 46th Leg. H. B. 683 p. 234) amended in 1945 (Acts
           Ch. $5, p. 76 Ad again imended in 1947 (Acts
           H. B. 379, Ch. 59, p. 86). The first two sec-
tions thi;eof respectively read:
           "Section 1. *A non-resident commercial
      fisherman' for the purposes of this Act is
      hereby defined as follows:
            "Any person who is a citizen of any
      other state, or any person who has not con-
      tinually been a bona fide inhabitant of this
      State for a period of time more than twelve
      (12) months; the word 'person' shall include
      partnership associations and corporations
      who have no4 continually had a bona fide
      place of business in this State for a period
      of time more than twelve (12) months, and
      who takes, assists in taking or catching,
      fish or shrimp or oysters, or any other edi-
      ble aquatic life from the tidal salt waters
      of this State for pay or for the purpose of
      sale, barter or exchange.'
           "Section 2. A 'non-resident commercial
      fishing boat' for the purposes of this Act
      is hereby defined as follows:
           "Any boat or vessel, which is registered
      in any other state, or which has not continually
Hon, H, D. Dodgen, page   6 (V-463)


      been registered in this State for a period
      of time more than twelve (12) months, or
      which is not owned by any person, partner-
      ship, association of persons or corpora-
      tion whic'hhas had a bona fide place of
      business in this State for a period of time
      more than twelve (12) months, and which is
      used for the purpose of taking, or assist
      in taking or catching, fish, shrimp      -
      ters or any other edible aquatic IiPe"?zom
      the tidal salt waters of this State for pay
      or for the purpose of sale, barter or ex-
      change,"
          Section 3 requires a non-re~sidentcommercial
fisherman to obtain a license, the fee for which is
$1200~00from the Game, Fish and Oyster Commission, or
one of its authorized agents, before he may legally take
or assist in taking any fish, shrimp or oysters or any
other edible aquatic life from the tidal salt waters of
this State,
          Section 4 likewise requires a non-resident com-
mercial fishing boat to obtain a license to be known as
"Non-resident Commercial Fishin Boat License," the fee
for which is $2500,00 from the 8ame, Fish and Oyster Com-
mission or one of its authorized agents before such boat
may legally be used for the purpose of taking or assist-
ing in taking any fish, shrimp oysters or any other edi-
ble aquatic life from the tidal waters of this State,
           We think it is apparent that a boat license fs-
sued under the provisions of Article 93i+amay properly be
termed "a residential commercial fishing boat license,"
Set, &a, Art, 934b-1, V,P,C, A boat license issued under
the provisions of Sections 2 and 4 of Article 93l+b-1is a
"Non-resident Commercial Fishing Boat License." A boat
or vessel licensed under either of these Articles is
granted the privilege 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 of sale, barter or exchange, A
boat or vessel so licensed is "engaged in commercial
fishing" when used for the purpose or business for which
it was licensed, and is a "commercial fishing boat or
vessel" p wfthin the meaning of these statutes,
          We construe Subsection (a), Section 10 of Arti-
cle 93l+b-1,to make it unlawful for any boat or vessel
wenpaged in commercial fishing", which is -
                                          not licensed
Hon. H. D. Dodgen, page   7 (V-463
                                 1


under the laws of this:State as a residential commercial
fishing boat, to discharge or unload any commercial car-
go of fish, shrimp, oysters or other marine products, or
to sell or process the same within this State until the
same has been inspected at a port of entry; found to be
in a sanitary condition, and the inspection fee or tax,
provided for in Subsection (b), paid or secured as there-
in provided.
          ;j,bsection(b) of Section i0 levies an inspec-
tion fee or tax of Ten Dollars ($10) for each one hundred
(100) pounds or fraction thereof of any cargo of fish,
shrimp, oysters or other marine products sought to be
discharged or unloaded from any unlicensed commercial
fishing boat or vessel within the territorial limits of
Texas.
          However, under the facts submitted by ou, The
Lulu is not "engaged in commercial fishing" and 1 9 not a
llcomaercialfishing boat orvessel", within the meaning
of Articles 934a and 93413-1,Vernon's Penal Code. There-
fore, Section 10 of Article 934b-1, Vernon's Penal Code,
which provides for an inspection tax, does not apply.
                     SUMMARY
          A boat registered in the Republic of
     Panama and used exclusively as a cargo boat
     for exporting shrimp from Mexico to Browns-
     ville, Texas is not "a commercial fishing
     boat" and is not "engaged in commercial fish-
     . " within the meaning of those terms as
     i%; in Article 934a and Articie 934b-1, V.
      0 0.Ia.-_is not subject to the payment of
     :hc &poction   fee or tax imposed by Section
     10 of Art-l:le934b-1, V. P. C., on cargoes
     of boats or vessels engaged in commercial
     fisning, when the shrimp are "purchased at
     a NiexicanPort, and are packaged and exported
     under a Mexican Export License and Bill of
     Lading."
                                  Yours very truly,
                               ATTORNEY GENERAL OF TEXAS


                               BY&~
                                      David Wuntch    .
                                      Assistant
