                     THE   ATTORNEY             GENERAL
                               OF TEXAS




    Mr. Andrew Sansom                 Opinion    NO.   JM-1206
    Executive  Director
    Texas Parks and Wildlife          Re:   Whether licensed commercial
      Department                      shrimpers must   hold   commercial
    4200 Smith School Road            finfish fisherman's   licenses    in
    Austin, Texas    78744            order to. sell finfish    (RQ-1852)


    Dear   Mr.   Sansom:

          Your predecessor    requested   the   opinion of this     office
    on an issue concerning     the authority    of commercial    shrimpers
    to sell finfishl captured      in the course of harvesting       shrimp
    from the waters of this state.        You ask whether the      captain
    and each paid     member of the     crew of a boat licensed as         a
F   commercial   shrimp boat are required       to  hold  both a   general
    commercial   fisherman's    license     and  a commercial      finfish
    fisherman's    license in   order to sell      finfish species     that
    are otherwise    lawful to    sell.   The staff     of the Parks     and
    Wildlife   Department   has answered the question      in the    affir-
    mative.

          It is well     established     that the     construction      of   a
    statute by    the agency    charged with      its administration        is
    entitled to great weight.       Ex   oarte Roloff, 510 S.W.Zd          913
    (Tex. 1974).    This is especially     true where the       administra-
    tive construction    is contemporaneous,      or nearly so, with the
    statute itself.     Durrouahs    V.     les   181    S.W.2d 570     (Tex.
    1944).   The courts will not,       howeve;, abide by an        adminis-
    trative agency's     interpretation      that is     contrary    to    the
    clear meaning    of   an   unambiguous      statute.      Texas   Health
    Facilities  Comm'n V.       Paso    Medical     573 S.W.2d 291      (Tex.
    Civ. App. - Tyler 1978, writ ref'd n.h.e.);           2 Tex. Jur.      3d,




         1.   B*Finfish" are @@those living natural resources   hav-
    ing either cartilaginous    or bony skeletons   (Chondrichthyes
    and Osteichthyes)."    Parks & Wild. Code § 47.001(14).




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Mr.   Andrew   Sansom   - Page   2   (JM-1206)




                                 '.
      The captain and each paid member of the crew of a boat
licensed as commercial     shrimp boat   under chapter 77 of      the
Parks and   Wildlife   Code   must obtain    a general    commercial
fisherman's   license.     Parks & Wild. Code      5 77.040(b).      A
commercial   fisherman  is

          a person who catches edible aquatic     products
          except oysters from the    water of this    state
          for pay or for   the purpose of sale,    barter,
          or exchange,  or any other commercial  purpose.

J&g& 5 47.001(l).    The general commercial   fisherman's         license
authorizes   the licensee to engage    in business   as a         commer-
cial fisherman.    w    ia, 5 47.002(a).

      In contrast,   section   47.003(a)   of   the code  provides,
"No person may     engage in business     as a commercial    finfish
fisherman   unless    he   has   obtained   a commercial     finfish
fisherman's   license."    A commercial   finfish fisherman   is   na
person who catches      onlv finf~ish from    the tidal waters2    of
this state for pay      or for the purpose     of sale, barter,    or
exchange.w    Id. 5 47.001(2)    (emphasis and footnote added).

      The department's     position    on this issue is based on its
understanding    of the    nature and purpose       of the    commercial
finfish fisherman's       license.      The license     is   thought   to
constitute    a   specialized      and   restricted     entitlement    to
capture    finfish    species    for    commercial     purposes.      The
restriction,    we are told, was meant to protect a segment            of
the commercial      fishing    industry    while at     the   same   time
promoting   conservation    of   finfish species.         In support   of
these claims, our attention        is directed to public       testimony
offered    in   support    of   Senate      Bill   302   of   the    66th
Legislative   Session in 1979.

      Senate Bill     302   would     have   added     a new    class    of
commercial    fishing license      -- the     "tidal water     commercial
finfish fisherman's      license" --      to the then existing       tidal
water commercial      fisherman's      license     and   nontidal    water
commercial    fisherman's    license.     Bill   File, S.B. 302,      66th
-g.     (1979)    (introduced     version).      It    would   also   have
changed the definition      of "tidal water commercial         fisherman"
to mean, in relevant pa*,         "a person who catches fish, other
than."              The term "finfish"       was limited in the       bill



      2. "'Tidal water'    means all  the salt   water of    this
state, including   that portion   of the  state's    territorial
water in the Gulf of Mexico within three marine leagues from                  -,
shore."  L    5 47.001(7).




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    Mr.   Andrew   Sansom   - Page   3   (JM-1206)




    to eight particular     species of fish.       The bill would   have
    carved a special niche       for holders    of commercial    finfish
    fisherman's   licenses,  in essence granting them the exclusive
    right to    exploit the   designated   finfish    species for   com-
    mercial purposes.     &!8 Public Hearina on S.B. 302 Before th
                                         66th   Leg.               1979:
    (testimony   of Senator   Babe &hwarts)       (tape(%laLfe       from
    Senate Staff Services).

          The bill history prepared by the Legislative            Reference
    Library shows that Senate Bill 302 was never reported out of
    the Senate Committee       on  Natural Resources.      The failure     to
    report a bill from committee        or inaction by the      legislature
    on   a particular       bill   does   not   conclusively      establish
    legislative   intent as to the subject matter of the bill.            El
    Chico Cgpp. V.     P 0 ole , 732 S.W.2d   306, 314-15 (Tex.       1987).
    This rule, strictly speaking, means that the failure of              the
    legislature   to act on Senate       Bill 302 is not indicative        of
    its intent to    reject the principles        embodied    in the   bill.
    Such intent, however,       is clearly evident from a comparison
    of the provisions      of the bill with the sections of the Parks
    and Wildlife   Code that occupy their place.

          The plaip language of the Parks and Wildlife              Code   does
    not support      the   dichotomy     set out     in   Senate    Bill    302.
    Because the captain and crew of a commercial              shrimp boat are
    entitled by their        licenses to     engage in business        as   com-
    mercial   fishermen,      they are    by definition       not   prohibited
    from    catching,     in   addition     to   shrimp,    edible      aquatic
    products    other than oysters.       The definitions      of "commercial'
    fisherman"    and "commercial      finfish    fisherman"    now in    place
    were adopted during        the same legislative        session at     which
    Senate Bill 302 was offered.          Acts 1979, 66th Leg., ch. 260,
    at 550;     Acts 1979,     66th   Leg., ch.      623,  at    1398.    These
    definitions     clearly indicate      that the legislature         intended
    the latter occupation       to constitute     a subset of the       former,
    at least     where edible      species     of finfish     are   concerned.
    Neither the      definitions    nor   the provisions       governing     the
    issuance of the two licenses           inform those persons who         must
    determine    the effect of the statutes on their occupations              of
    the dichotomy     urged by the department.

          The best indicator     of legislative     intent    is the    lan-
    guage of the enacted      law.   &R   wre        v. Citv of     Dam
    170 S.W.Zd    722 (Tex.    Comm'n App.     1943, opinion      adopted;;
    Citv of Nassau Bav     v. moarad       582    S.W.2h 505, 508 -(Tex.
    Civ. ADD. - Houston      rist Dist.i     1979, writ ref'd      n.r.e.).
    The rei&ant    provisions   of the -Parks and Wildlife        Code   may
    not describe     the activities     in which holders       of   general
    commercial   fisherman's   licenses    may engage in      the way    the
r   department   would   prefer, but     we do    not believe     they   are
    indefinite   or misleading.     Accordingly,    we conclude that the



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Mr.   Andrew   Sansom   - Page   4    (JM-1206)




captain and paid members of the crew of a boat licensed as a
commercial  shrimp boat are not required to obtain commercial
finfish fisherman's     licenses  in addition  to   the general
commercial  fisherman's   license required by section 77.040 of
the Parks and Wildlife    Code in order to sell finfish species
that otherwise   are lawful to sell.3



              The captain and paid      members of the      crew
          of a boat licensed       as a commercial        shrimp
          boat are   not required      to obtain     commercial
          finfish fisherman's     licenses     in addition     to
          the general     commercial     fisherman's     license
          required by section 77.040        of the Parks      and
          Wildlife    Code    in  order    to   sell     finfish
          species that otherwise      are lawful to sell.




                                             JIM      MATTOX
                                             Attorney General   of Texas
                                                                           i
WARYXELLER
First Assistant     Attorney       General

mu   MCCRBARY
Executive   Assistant     Attorney     General

JUDGE ZOLLIE STEAXLEY
Special Assistant  Attorney          General

RENEA HICKS
Special Assistant       Attorney     General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Steve Aragon
Assistant Attorney General



      3.  It might be argued that our conclusion        here renders
the commercial   finfish fisherman's     license wholly redundant,
since the   only license     any individual     would need    is   the
general commercial    fisherman's   license.    We acknowledge    this
prospect,  but add that the result is compelled       by the     plain
language of the Parks      and Wildlife   Code   and is beyond     our
authority  to correct.



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