Game, Fish and Oyster   Commission      Opinion No. O-5372
Austin, Texas                           Re: May any person legal-
                                        ly use a net or seine for
Attention:   Mr. H.~ D. Dodgen          the purpose of taking mul-
                                        let ,within, a distance of
                                        less than one mile from a
                                        pass leading from the in-
                                        ,land bays or tide waters
                                        of this State to the Gulf
                                        of Mexico other than a
                                         cast net used in taking
                                        bait, provided such person
                                        holds a permit issued to
                                        him by the requisite    au-
                                        thorities   of the Game, Fish
                                        and Oyster Commission au-
                                        thorizing   him to do so?
Dear Sir:                               And other related questions.
           We have received your letter    of recent date requesting
our opinion upon the above stated question and other related
matters.   Your letter  r,eads as follows:
           “Because of present demands fork increase    in
     food production,   an added number of requests are
     being made for permits to be issued under the terms
     of House Bill 820 Acts of the Regular Session,
     Forty-sevenths Legjslature.     The concern of the Game,
     Fish and Oyster Commission regards the,issuance       of
      such permits authorizing    the taking of mullet from
     certain of the ,tidal waters, of this State where the
     ;I; of nets and seines is otherwise prohibited      by
            Competent authorities    of the Game Fish ,and
     Oyster Commission have classified      mulled as a non-
     game fish in accordance with the provisions      of the
     above mentioned H. B. 820.
           “This Department respectfully     requests your
     opinion on the follow+g     quest ions;
                           ‘,! i
           “1.  May any Orson ,‘legally ,,use a net or seine
     for the’purpose’of  taking mullet within a distance
     of less than one mile from a pass leading from the
     inland bays or tide waters of this State to the Gulf
Game, Fish and Oyster Commission,   page 2 (O-5372)


     of Mexico other than a cast net used in taking bait,
     provided such person holds a permit issued to ‘him by
     the requisite  authorities    of the Game, Fish and Oyster
     Commission authorizing     him to do so?’
           “2. May any person legally use a net or seine
     for the purpose of taking mullet or other non-game
     fish from any of the tidal waters of ~thisstate not
     mentioned in Article 941, 1925 P.C. as emended?
           “3.   May a permit be legally   issued by the Game,
     Fish and Oyster Commission to any person or persons
     authorizing   the taking of mullet or other inan-game
     fish by use of nets or seines from any of the tidal
     waters of this State in which a trammel net,, set net,
     or gill net is now prohibited    by law? May the hold-
     er of such permit legally   proceed, when holding such
     permit    to operate in such restricted    areas by tak-
     ing m&et     and/or other non-game fish by use of nets
     and seines?
           “4.  May the Game, Fish and Oyster Commission is-
     sue permits for the use of nets and seines having
     smaller mesh or of greater length than is otherwise
     permitted by law?”
           House Bill 820, referred to in your letter,  is the
same as Article 952L-11, Vernon’s Annotated Penal Code.    we
are primarily interested  in Section 3 thereof,  part of which
provides as follows:
          II. . .

           “In order to control such nongame marine spe-
     cies and to permit their utilization  and when it has
     been found that the taking of such nongame’species
     will not adversely affect the conservation ,of game
     species,  it shall be the duty of the Gamei Fish and
     Oyster Commission to issue permits for ,the use of
     any net or device for the taking of sudh nongame
     species under the terms, conditions,  and stipulations
     herein provided.
          ‘I.   . .
           “(b)  It shall be ~unlawful for the holder of a
     permit issued hereunder to operate any~net or device
     that is not now legal in any of the tidal waters of
     this state in which a trammel net, set net, or gill
.




    Game, Fish and Oyster Commission, p.ag,e 3,~ (Q-,5372)


         net is now prohibited    by law.   And it shall
         be unlawful, to .‘operate a jdevice permitted under
         the terms of this Act until ‘such deviicehas      been
         inspecte.d, approved, ,and’~t agged, and while: in, dp-
         eration bearsa ‘metal~tag~identifying       said de~vicg
         issued by said, Com&s~Sion.~ ;     “~’     :’

                 “(c)    It shall be unlawful to use a device
         otherwise prohibi,ted by the .laws of this State but
         permitted under the ter:ms ~of thi’s Act for the tak-
         ing and posse,ssion of ‘any game fish or any other,
         species of salt-water         fish     exc’epting those spec-
         fically      named in the permiC authorizing        the use, off
         said devices or to operate or permit ,the operation
         of such a device.,in       a manner that will or does
         needlessly      or carelessly      injure marine products
         other than those’permitted            to be taken inthe   es-
         pecially      authorized net; ~. . .‘I
              We quote as follows from 41 Words and Phrases 624, as
    to the waters which come within the’~category of “tidel waters:”
               “Tide. waters are waters~ whether salt or ”
         fresh, wherever the ebb and kow of the tide of
         the sea is felt’.   Commonwealth v. Vincent, 108
         Mass. 441, 447.”
               Article   941,~ VernonrsAnnotated  Penal Code, makes it
                                                use nor drag any seine,
                                             and shrimp other than or-
                                               el. artificial   bait,
    trot line,  set line,,‘or cast-net  or minnow’~seine of’not  more than
    twenty feet in length, for catchin,g bait within certain tidal wat-
    ers therein named, ‘including waters within one mile of any pass,
    stream or canal leading from done ‘body of, Texas or coastal waters
    into another body of such waters, providing that nothing in this
    article  shall prevent the use, of a spear or gig and light for
    the purpose of taking, flounders.
              Secti~on la of Arti,cle’ 941 supra,          and 945, Vernon’s   Ann.
    penal Code, read respectively    asp fo i lows:
               “Provided that -‘it,, shall be’ unlawful fork any
         person to drag any ‘seine, or use any drag seine, or
         shrimp trawl for catching fish’or       shrimp;‘or   to take
         or catch fish or, shrimp with any de,vice other than
         with the ordinary pole and line, casting rod, rod
         and reel, artificial,   bait, trot line,     set line, or
         cast net, or minnow seine, ~,of not more than twenty
Game, Fish and,Oyster       Commission,     page 4   (O-5372)


     feet in length for catching bait    or to use a set
     net, trammel net or strike net, c he meshes of which
     shall not be less than one and one-half inches fr,om
     knot to knot, in any of the tidal bays, streams,
     bayous, lakes, lagoons   or inlets,  or parts of such
     tidal waters of this &ate ‘not mentioned in Section
     1 hereof .I’
           “The mesh of all seines and nets used for tak-
     ing fish in salt waters of this State, not including
     the bag, shall not be less than one and one-half
     inch square mesh. The mesh of the bags and for fif-
     ty feet on each side of the bags, shall not be larger
     than a one inch square mesh. No seine or net of any
     kind of over two thousand. feet shall be dragged or
     pulled in the salt water of this State,, and any per-
     son dragging such seine, or dragging two or more
     seines which are connected or’ tied together with a
     combined length of more than two thousand feet,    shall
     be upon first   conviction thereof fined not less than
     twenty nor more than one hundred dollars;    upon second
     conviction  thereof shall be fined not less than fifty
     nor more than two hundred dollars     and shall have his
     license revoked for a period not iess than thirty nor
     more than ninety days; and upon third conviction    there-
     of shall be confined in jail for not less~ than thirty
     nor more than ninety days, and shall have his license
     revoked for a period of not less than one year.”
           Article 947 of the Penal Code make,s it an offense to
catch fish or attempt to catch fish in any of the bays or navi-
gable streams of the State, withinthe   limits or within one mile
of the limits of any city or town in this State with seines,
set nets. trammel nets, or by any of the, other described methods
therein named.
          Article  952L-10, Vernon’s Ann. Penal~Code, also makes
it a penal offense to use strike nets. sill nets. t ammI netg,
or shrimp trawls as defined by the statutes for thertakeing of
fish and shrimp from certain named and defined waters during the
period beginn&ng August 15 and ending May 15 of each year.    Safd
article makes it unlawful for any person to use in said waters
during the closed season any strike net, gill net, trammel net
or shrimp trawl contrary to provisions  of article  941, supra.
              Section   2 of said article     provides:
              “It shall be unlawful       to have in possession  any
     seine,      strike net, gill’net,      trammel net, or shrimp
Game, Fish and Oyster Commission,     page 5’ (O-5372)


     trawl in or on any of the tidal waters of this State
     where the use,of ‘said seine     strike newt gill net,
     trammel net,, or shrinp’.traw 1, is prohibited    from be-
     ing used in taking or catching ‘fish and/or shrimp,
     unless such’setie,‘strike    net, gill~net,    trammel
     net, or shrimp trawl 1s~ ‘on~board a vessel when such
     vessel is at ports or in,a channel while en route to
     or from the Gulf of Mexico.”
           There may be other statutes specifically     inhibiting
the use of seines or’any or all of the types of nets above
mentioned in certain tidal waters for the purpose of taking or
attempting to take fish.    We have mentioned articles    941, 947
and 952~10 for the ‘purpose of showing the established       policy
of the State to inhibit   the use of trammel nets     set nets, and
gill nets   those types of nets specifically   men4ioned in sub-
section (b) of section 3 of House Bill 820, and seines in cer-
tain tidal waters of this State, for the purpose of taking or
attempting to take from said waters fish of any and all kitis,
whether game or nongame. Therefore,     the Legislature   not only
made the use of such nets in certain tidal waters a penal of-
fense, but to make the purpose of the statutes more effective,
made the possession   of any seine, strike net gill net or tram-
mel net in any of the tidal waters of this Siate, where the
use of seines or said nets is prohibited,    a penal offense,      un-
less the seine or nets is on board a vessel when such vessel is
in port or in a channel while en route to or from the Gulf of
Mexico o (Art. 952L-10, Sec. 2)
             It is perfectly   clear in our minds that the Legisla-
ture did not attempt to change the established       policy of the
State, above set forth,      by the passage of House Bill No, ,820,
but to the contrary took every,precaution      therein to preserve
that policy,    as evidenced by the plain provisions     of subsection
(b) and (c) of section 3 thereof,, quoted above*
           The purpose of this statute is to permit the taking
of nongame fish from the tidalwaters      of this State by means
and methods not theretofore,permissible     under the law.  For in-
stance, it is a matter of common knowledge that some nongame
fish are too small to be taken by seines and nets with meshes
as large as the minimum size prescribed     by section la of Article
941,  supra, hence the law contemplates the Commission may grant
a permit for use of a seine or net with a smaller mesh or great-
er length than those which may be used for taking game fish.
However, the waters in which such seines or nets may be legally
used ape limited by section    (b) to those tidal waters where it
is lawful to use a trammel net, set net, or gill net.      There-
fore,  such seines and nets as may be approved by the commission
                                                                           . .._.




Game, Fish and Oyster Commission,      page 6     (O-5372)



for taking nongame fish may not be lawfully   used in any of
the waters named or defined by ,Articles 941    947, 952-10, or
in any other waters not embraced in such sirc icles,  if there
be such, where the use of such nets are inhibited    by statute
or by thecommission under authority of law.     It is evident
that the Commission has no, authority to grant a permit for the
use of a net or other device for taking nongame fish in waters
where the use of same by the permittee is made unlawful.
           We trust   the foregoing   satisfactorily         answers all
your questions.
                                        Very truly     yours,
                                        ATTORNEY
                                               GENERAL
                                                     OF TEXAS
                                        By /s/ Fred C. Chandler
                                        Fred C. Chandler, Assistant
                                        By /s/ Robert 0. Koch
                                        Robert 0. Koch
APPROVED  JUL 9, 1943
/s/ Gerald C. Mann
ATTORNEY  GENERAL OF TEXAS
APPROVED:OPINIONCOMMITTEE
BY:     BWB, CHAIRMAN
ROKsff:wb
