                           August 28, 1952

Hou.   Robert   Galloway        Opinion No. Q-1516
Diatrlot Attorney
84th Judlolal District         Re:   Applicability of various
Borger, Texas                        laws regulating   fishing
                                     to the taking of rainbow
Dee    Mr. Galloway:                 trout from a private lake.
          In your request for an opinion of this office
you state the following faot situation:
              “A resident of Hutahlnson County, Texas,
       hereinafter called owner, Is the bvonerof lands
       within this County. A few years a@,. the owner
       started selling gravel off of his lands and, In
       the process of removing the gravel, excavated a
       deep pit, whereupon undergroqid vatere oommenoed
       to flow Into the pit and form a large body of
       water. When the sale of gravel had been oon-
       eluded, the owner h&d, within the boundaries of
       his own land, a body of water about thirty (30)
       acres in area, which body of water is in no~wag
       connected with any uatural creek, river   or stream,
       and is in no way subject to overflow from any
       creek,   river, or natural strew.   The water sup-
       ply for the lake Is wholly subterranean and, as
       a matter of fact, the owner banked rain waters
       away from the lake.
            “Sometime ago the owner began experimenting
       with rainbow trout and found wat they live very
       well in his lake.  Later  he bought fish eggs from
       out of the State, hatched thk eggs himself at
       hatcheries erected upon his premises, turned them
       into his lake, and noi? has the lake supplied and
       stocked with about 400,000 rainbow trout.
            "During the year 1951, the owner permitted
       fishing upon his premises and in his lake, charg-
       ing an admission fee and placing a limit of five
       trout for each admisslon.
            "This year, 1952, the owner has proposed to
       change the charge for fishing upon hi8 land by
Hon. Robert Galloway, page 2 (Q-1516)


     charging the fishermen by the pound of fish
     caught and removed. His reason for changing
     the fishing privilege to the sale-by-pound
     method was that during the year 1951 fisher-
     men killed numerous fish by throwing back
     smaller catches and keeping the five biggest
     fish they could catch."
           Based upon this fact situation you aek whether
the taking of fish from this private lake is subject to
the laws of the State of Texas, partloularly Articles 93&a,
933&b, 933&z and 933a, Vernon's Penal Code, and Sections
1, 2 and 3 of Article 4032b, Vernon's Civil Statutes.
          The articles in question are as follows:
          Article 933*a, Q.P.C.:
          "From and after the expiration of the
     olosed season on rainbow trout as
     In Section 1 of this Act Brt. 933~EEall
     be unlawful for any person to take, possess,
     sell or barter any rainbow trout from any of
     the fresh waters of Texas during~the months of
     January, February, March, April and Ray of each
     year, vhich months shall constitute a closed
     season on rainbow trout."
          Article 933&b, Q.P.C.:
          "It is hereby made unlawful for any
     person to take or have in his or her pos-
     session any rainbow trout from any of the
     fresh waters of Texas, of a less length than
     fourteen inches, or to take and have in his
     or her possession more th$n five rainbow
     trout during any one day.
          Article 933$, V.P.C.:
          "It Is hereby made unlawful for any
     person to sell, barter, or offer for sale
     or barter any rainbow trout ttken from any
     of the fresh waters of Texas.
          Artlale 933a, V.P.C.:
          "It shall be unlawful for any person,
     firm or corporation, or their agents, to
. ,

      Hon. Robert Galloway, page 3 (v-1516)


           buy or sell, or offer for sale, or offer to
           buy, or have in his or their pos~sesslonfor
           sale, or to carry, transport or ship for the
           purpose of sale, barter or exchange, any
           fresh water crappie or bass within the State
           of Texas.
                "Any person violating any of the grovi-
           sions of this section shall be deeyd guilty
           of a misdemeanor, and upon conviction shall
           be punished by a fine in any sum not exceed-
           ing one hundred dollars, and each sale or
           shipment or act In violatioffhereof shall con-
           stitute a separate offense.
                Article 4032b, V.C.S.:
                  "Sectlou 1. It shall be unlawful for any
           resident of this State to fish in any of the
           fresh waters of this State, outside of the
           county of his residence and adjacent counties
           thereto, without first having procured from
           the Game, Fish and Oyster Commission, or one
           (1) of its bona fide employees, or a county
           clerk   or an authorized agent, a resident flsh-
           ing,llcense, the fee for which shall be One
           Dollar and sixty-five cents ($1.65). Of this
           amount, the offiaer issuing aame shall retain
           fifteen cents (15$) as his fee for collecting
           SalIB.   No fee or license of any kind shall be
           required of a person for the right to fish in
           the county of his residence and counties adja-
           cent thereto except as provided in Sec. 3 of
           this Act.
                 "Set(I2 o It shall be unlawful for any
           person who is a non-resident of this State, or
           any person who is an alien, to fish in the fresh
           waters of this State without first having pro-
           cured from the Game, Fish and Oyster Commission,
           or one of its bona fide employees, or a county
           clerk  or an authorixed agent, a non-resident
           fishing license, the fee for which shall be Five
           Dollars and twenty-five cents ($5.25). Of this
           amount, the issuing officer shall retain tventy-
           five cents (25#) as hla fee for collecting same.
           Provided that such non-resident may fish in said
           waters under a five-day license, the fee for
           which shall be One Dollar and sixty-five cents
           ($1065), and which shall be valid for only five
                                                                .

Hon. Robert Galloway, page 4 (V-1516)


     (5) consecutive days, including day of
     Issuance, the date of vhlch shall be
     stated thereon. The Issuing officer  shall
     retain fifteen cents (15#) of said amount
     as,his collecting fee.
          "Set. 3.   No person under seventeen
     (17) years of age shall be required to
     possess any of the licenses provided for
     In this Act. iyoresident fishing license
     shall be required of a resident citisen of
     this State who holds a commercial fishing
     license issued in this State.   Provided
     that all residents of this State over the
     age of seventeen (17) years shall hold a
     resident fishing license when using artl-
     ficlal bait or lure. Provided further
     that all residents of this State over the
     age of seventeen (17) years shall hold a
     resident fishing license when using live
     bait outside of the county of his residence."
            In Jones v. State, 45 S.W.2d 612 (Tex. Grim. App.
1931 .), It was determined that the game and fish laws of
this State are not Intended to interfere with an owner's
control over fishing In privately owned ponds of the cbarac-
ter which ou describe. In respect thereto, the court said
at page 61%:
         "In Corpus Juris, vol. 26, p. 624, citing
    many authorities and precedents, the following
    is stated: *But the legislature cannot lnter-
    fere with the fishing privileges of the ovners
    of private ponds having no communication through
    which fish are accustomed to pass to other
     vaters.   1

         "Apparently the game laws of this state
    are so framed as to recognize the 1lmFtation
         mentioned. Article 951, P.C.1925, reads
    E:     'It shall be unlawful for any person
    to citch any fish In the fresh waters of this
    State, with any seine or net other than mlnnov
    seine, not exceeding twenty feet in length, or
    to drag any seine, except such specified minnov
    seine, or to set any net, in the fresh waters
    of this State during the months of March and
    April, or to fish with any artificial bait of
    any kind in the fresh waters of this State
. .

      Hon. Robert Galloway, page 5 (v-1516)


            during the months~of Merch and April. Any
            person violating any of the provisions of
            this Article shall be deemed guilty of a
            misdemeanor and shall be upon convlctfon
            fined a sum of not less than &went ($20 .oo)
            dollar% nor more than one hundred,f$100.00)
            dollars. This article shall not amly to
            any artificial lake. oond or pool. owned bp:
            any nerson, firm, cornoratlon. city or town,
            that does not have as its source of water
            su~uly a river or creek or Is not subject
            to overflow from a river or creek.’
                 "Articles 931 and 933, upon which the
            prosecution Is founded, and article 951, just
            quoted, are all parts of the Game Law, and
            must be construed together. When so construed,
            the exception in article 951, italiclsed above,
            apparently would operate to.protect the appel-
            lant against a conviction in the present in-
            stance. Article,951 apparently legallses the
            catching of fish of all klnds in private waters.
            The appellant, having le@Uly caught the fish
            described in the evidence In private vaters In
            which the state had no Interest, oould not be
            guilty of an offense by having the fish in his
            possesalon.   ”

                 In an opinion on motion for rehearing in the same
       case (45 S.W.2d 614) the court stated:
                 "It seems to the writer that In no clearer
            language than that found in articles 925 and 951
            could It be expressed that It was not the legis-
            lative intent to place restriction on the owners'
            control over fishing in privately owned ponds, as
            distinguished from fresh water streams and lakes
            as defined in article 926 of the Penal Code."
                .Therefore? in view of the- basis
                                            . _. .for the
                                                      _   Court of
      Criminal Appeals' interpretation of tne f18n an6 ame laws
      of the State, we feel that Articles  933$a and 933tb, Vernon's
      Penal Code, and sections 1, 2 and 3 of Article 4032b, Vernon's
      Civil Statutes, do not apply to the taking of fish from the
      lake which you have described in your request, and speclfl-
      callg that the owner's price-per-pound system of charge is
      not necessarily In conflict with Articles 333& and 9338, Qer-
      non's Penal Code. This system of charge If applicable solely
      to the privilege of fishing is no more than a method by which
                                                              . .

Hon. Robert Galloway, page 6 (v-1516)


the owuer~controls fishing in his private lake, and as
seld above, the game and fish laws when construed to-
gether indicate the leglslatlve Intent to,exempt the
ovner's control over fishing in private lakes or ponds
which do not communicate with public waters from the
scope of these laws.




                  The taking from a privately owned
            artificial lake of rainbow trout which
            were stocked in the lake from sources
            outside the State Is not subject to the
            provisions of Articles 93&a., 93,3&band
            933&z, Vernon's Penal Code, or Sections
            1, 2 and 3 of Article 4032b, Vernon18
            Civil Statutes, whare the lake does not
            have as its sour04 of water supply a
            river or creek and la not subject to
            overflov from a river or creek.   A fee
            charged for the privilege of fishing in
            such lake based on the number of pounds
            of fish caught Is not a purchase, sale,
            barter or exchange, within the meaning of
            Articles 933&c and 9338, Vernon's Penal
            Code, of the types of fish named therein.
APPROVED:                               Yours very truly,
Red McDaniel                              PRICE DANIEL
State Affairs DFvls%on                  Attorney General
E. Jacobson
Revl4wing Assistant
                                          Milton Richardson
Chap$es D. Mathews                            Assistant
Firrat; Assistant
