                   December 22, 1948.

Hon. Howard D. Dodgen, Executive Secretary
Game, Fish and Oyster Commission
Austin, Texas
                          Opinion No, V-751.
                          Re:   The authority of the Game,
                                Fish and Oyster Commission
                                to regulate the taking and
                                the possession limit of min-
                                nows from Possum Kingdom
                                Lake.
Dear Mr. Dodgen:
          You have requested an opinion with reference to
the above-captioned subject, in the following respects:
          "At the regular,quarterly meeting of
     the Game, Fish and Oyster Commission held
     in Austin, Thursday, October 14, 194b, a
     resolution was adopted, under the authority
     of H. B, 1049, 47th Legislature, page 839,
     chapter 515, whereby a previous resolution
     adopted by said Commission was amended.
          "The resolution referred to, among
     other things, prohibited the taking of
     minnows, by any means and at any time,from
     the waters of Possum Kingdom Lake. The
     more recent amendment referred to seeks
     to relax the previous regulation so as to
     allow the use of common minnow seines of
     not more than ten feet in length, in the
     taking of minnows from Possum Kingdom Lake,
     and to further restrict the number of min-
     noawhich may be taken from said Lake and
     which may be possessed.


          Ite o . We, therefore, respectfully re-
     quest your opinion on the following ques-
     tions:
Hon. Howard D. Dodgen, Page 2,   v-751.


             "1. Does the Game, Fish and Oys-
       ter Commission have authority to regu-
       late or prescribe the means and methods
       for taking minnows from Possum Kingdom
       Lake?
            “2 * Does the Game, Fish and Oys-
       ter Commission have authority to limit
       the number of minnows to be taken and
       possessed from such Lake?"
          Your inquiry requires the consideration of
whether the statute authorized the Commission to pro-
mulgate the rule in question initFally, and thereafter
whether such authority *as repealed by subsequent leg-
islation.
          We first dispose of the question as to whether
Acts 1941 47th Leg., Ch. 515, Page 839, codified es Art.
978j(notej, V. P. C., authorizes the Commission to amend
a rule previously adopted by it with reference to the tak-
ing of minnows from Possum Kingdom lake.
            The pertinent provisions of the foregoing Act
are:
            "Section 1. It shall be unlawful
       to take, catch, or attempt to take,
       catch, or have in possession, OP dis-
       pose of, any fish from the waters of
       the lake impounded by Possum Kingdom
       Dam, which Dam is situated in Palo
       Pinto County, except when same may be
       permitted in regulations promulgated
       in accordance with the directions given
       in this Act.
            “Sec. 2.  It shall be the duty of
       the Game, Fish and Oyster Commlssion im-
       medlatelg, and thereafter from time to
       time, to make studies of the supply of
       fish and each species of fish In the body
       of water impounded by Possum Kingdom Dam;
       to determine the food supply available
       therein for the various fishes; the rela-
       tionship of the species of fish one to
       the other; the spawning habits and rate
       of reproduction of the different species
.:   .




         Hon. Howard D. Dodgen, Page 3,   v-751.


             of fish in this body of water; end on the
             basis of this information to equitably
             permit the taking of any species of fish
             from said body of water at such time or
             seesons, and in such numbers and sizes,
             and with such tackle or gear es will not
             Interfere with the conservation of fish
             in said body of water in the public ln-
             terest. It shall also be the duty of the
             Game, Fish and Oyster Commission to pro-
             vide regulations that will permit a reason-
             able harvest of the annual increase of any
             end all species of fish in the lake waters
             impounded by Possum Kingdom Dam with due
             regard to the future supply of such fish
             and the maximum public recreational bene-
             fit therefrom.
                  "Sec. 4, Any regulation permitting
             the taking of fish or permitting the use
             of certain gear or tackle or providing an
             open season for taking fish on the waters
             impounded by Possum Kingdom Dam made in
             accordance with the provisions of this Act
             shall remain in full force and effect un-
             til same is suspended or emendep, end any
             suspension or amendment of a regulation
             shall be done after the same manner and
             with the same approval required for the
             promulgation of a regulation made here-
             under,
                  "Sec. 5. Any person who fishes, OP
             attempts to take or catch fish, or has
             any fish in his possession, or disposes
             or attempts to dispose of same, or who
             uses any tackle or gear for taking or et-
             tempting to take or catch fish in any of
             the waters impounded by Possum Kingdom
             Dam, except in accordance with permissive
             regulations Issued by the Game, Fish and
             Oyster Commission of the State of Texas
             and approved by the Board of Directors of
             the Brazos River Conservation and Reclame-
             tlon District end then in effect, OP with-
             out having in his possession the license
             required of him by this Act, shall be deem-
             ed guilty of a misdemeanor end upon copvic-
             tlon shall be fined in a sum not less than
             Ten Dollars ( lo), nor more than Two Hun-
             dred Dollars $200).
Hon. Howard D. Dodgen, Page 4,   V-751.


         “Set, 7. All laws or parts of laws
    of this State which to any degree permit
    fishing in Possum Kingdom Lake be and the
    seme are hereby repealed, and all other
    fishing laws of this State, in so far as
    they conflict with any provision of this
    Act, be end the same are hereby repealed.”
          Under authority granted the Commission by the
foregoing provlslons, the Commission previously promul-
gated a rule closing the waters of Possum Kingdom Lake
to the taking of minnows. You now wish, by amendment,
to relax such rule by permitting the taking of minnows
through the use of a minnow seine not to exceed ten feet
in length, end not to exceed fifty minnows in possession.
          We think that minnows, which are unquestionably
fish, come within the regulatory provisions of Section 2
of the Act, which, under the clear language of the Act,
grants authority to the Commission to regulate the “tackle
or gear” with which fish may be taken from Possum Kingdom
Lake, end the possession limit thereof. Regulating the
length of a minnow seine would come within such prescribed
authority.
          The authority of the Commission to amend a rule
previously adopted by it, with respect to the-n      of
fish from Possum Kingdom Lake, is found in Section & of
the Act.
          The second consideration requires the determin-
ation of whether subsequent legislation has repealed the
authority of the Commission to regulate the taking of min-
nows from Possum Kingdom Lake.
          In this regard, you particularly refer us to
the provisions of Acts 49th Leg., 1945, Ch. 9, Page 13,
codified es Art. 9276, V. P. C., the pertinent provisions
of vhich are:
          “Section 1. There shall be no closed
     season OF period of time when it shall be
     unlawful to take, catch or retain fresh
     water fish by the use of ordinary hook end
     line OP artificial lures. Other devices,
     the use of which 1s permitted by law, mey
     be used for the purpose of taking fresh
     water fish et any time of the year, but
     only In compliance tiithsuch other restric-
     tions as are placed on their use by the laws
     of this state.
Bon. Howard D. Dodgen, Page 5,   v-751.


         "Set o 2.. It shall be unlawful for
    any person to take from public fresh we-
    ters,end retain, or place in any contain-
    er, boat, creel, live-box OP on any fish-
    stringer any large-mouth black bass, small-
    mouth black bass, spotted bass, or any
    sub-species of large-mouth black bass,
    smell-mouth black bass, spotted bass, that
    is less than seven (7) inches In length.
         'Sec. 3* It shall be unlavful for
    any person In any one day to catch end re-
    tain, or to place on or In any device OP
    container for holding same while he is
    fishing, any fish that is taken from the
    public fresh waters of this state in ex-
    cess of the following limits: large-
    mouth black bass,small-mouth black bass,
    spotted bass, or any sub-species of the
    seme, singly or in the aggregate, fifteen
    (151, of which not more than ten (10)
    shall be of greater length than eleven
    (11) Inches; white bass, twenty-five (25);
    blue catfish, channel catfish and yellow
    catfish, singly or In the aggregate,twenty-
    five 25 ; crappie or white perch, twentg-
    five t251 D
         “Sec. 4. Any person who violates any
    provisions of this Act, upon conviction
    shall be fined In a sum not less than Five
    &L,O;L Dollars, nor more than Fifty ($50.00)

         “Sec. 5. All laws or parts of laws,
    local, general, or speciel,insofar as they
    provide a closed season or period of time
    when It Is unlawful to take or catch fish
    or to use artificial lures, or insofar as
    they provide a size limit, possession limit,
    or daily catch limit, or otherwise conflict
    with any provision of this Act, shall be end
    the same are hereby repealed; except that
    nothing herein contained shall repeal Cha ter
    213, House Bill NO. 654, Regular Session,g8th
    Legislature, or regulations made thereunder
    to govern the taking of fish in Lake Texoma,
    which Is the body of wtter impounded by the
    dam at Denlson, Texas.
Hon. Howard D. Dodgen, Page 6,   V-751.


          Sectlon 1 of the foregoing Act, as quoted
above, does not repeal the authority of the Commis-
sion to promulgate regulations prescribing the means
and methods with which fish may be taken from Possum
Kingdom Lake, except to the extent that the Commission
may not close the fishing season on Possum Kingdom Lake
at any time during the year for the taking, catching
or retaining of fresh water fish "by the use of ordin-
ary hook and line or artificial lures.l' Section 1
further provides specifically that:
          II
           . . . Other devices, the use of
     which is permitted by law, may be used
     for the purpose of taking fresh water
     fish at any tFme of the year, but only
     in compliance with such other restric-
     tions as are placed on their use by the
     laws of this state."
          This language would indicate that the Commis-
sion is not authorized to close any portion of the year
to the taking of minnows by the use of a minnow seine
from the waters of Possum Kingdom Lake, but no further
restriction is imposed on the regulatory authority of
the Commission pertaining to the length of minnow seines.
           With reference to the authority of the Commls-
 sion to exact,'by proper regulation, a possession limit
 on minnows taken from Possum Kingdom Lake, it will be
 observed that Art. 927a, V. P. C., quoted above, prescribes
a pcesession l'imiton large-mouth black bass, small-mouth
black bass, spotted bass, white bass, blue catfish, chan-
nel catfish, yellow catfish and crappie. No imposition of
a possession limit on minnows is found in the general pos-
 session statute as noted. Therefore, the provisions of
Art. 927a, V. P. C., are not incompatible with the imposi-
 tion of a possession limit by the Game, Fish and Oyster
Commission, by a proper regulation complying with the pro-
 visions as to notice, on minnows taken from the waters of
opossum Kingdom Lske.
          No inquiry having been made as to the constltu-
tlonalitg of Acts 47th Leg., 1941, Ch. 515, Page 839, we
express no opinion thereon.
Ron, Howard D, Dodgen, Page 7,   V-751.


                     SUMMARY
         The Game, Fish and Oyster Commis-
    sion Is authorized under the provisions
    of Acts 47th Leg., 1941, Ch, 515, Page
    839, to amend a regulation heretofore
    adopted by it, in order to prescribe the
    means and methods with which rbinnowsmay
    be taken from the waters of Possum iiing-
    dom Lake and to set a possession limit
    on same,
                         Yours very truly
                     ATTORIVEYGENERAL OF TEXAS




                     APPROVED:




DJC:jmc
