                                                                  R-770
                                                                          177
                                       OF'FICE      OF
                         THE AIYTORNEY                 GENERAL

PRICE  DANIEL
~~RNxzY GENERAL                        Nov. 15, 1947

        Hon. James C. Martin                  Opinion No. V-431
        County Attorney
        NU8C88      county                    R8: Constitutionality of H.B.
        Corpus Christi, Texas                     380,  Acts 50th Legisla-
                                                  tUr8,  R-S., 1947, par-
                                                  taining to taking  and
                                                  sale of shrimp.
        Dear Sir:
                     You request a ruling relative to the constitu-
        tionality Of ROUS8 Bill 380, being Chapter 107, Acts Of
        th8 50th Legislature, 1947, Regular Session, page 149,
        clm8LldiQ3 v.  P. c., Art. 952 L-11, pertaining to the tak-
        ing and sale of shrimp. You state:
                       "It is COnt8nd8d by some partics that
                  HOWE Bill No. 380 iS UILoOnstitUtiOna1  in vi8W
                  of tha provisions of said law wh1ch.permit.sto
                  b8 legally Used in Galveston CoUIity,Texas, a
                  board not more than 20" wide, and not more than
                  60" long, and In other counties of the State,
                  a board not more than 12" wide and not mor8
                  than l8? long. Those contending the law to bye
                  unconstitutional maintain it violatss  the,Texas
                  Constitution In that It Is discriminatory, and
                  is a local or special law."
                   The particular paragraph which you refer to Is
         found in Vernon's Annotated Penal Code, Article 952 L-11,
         as amended, and reads as follows:
                          "Sec. 1:.   . . .
                    "It shall b8 UUlaWfUl f~Orany person t0
                  take
                    or assist In the taking of shrimp from
              the inland waters of this State by the use
              and operation of a bait trawl towed by a
               power boat, which said bait trawl shall be
              more than ten (10) feet at the mouth, as
              measured along the webbing attaahed to the
              .cork line, or twenty-five (25) feet in
               length, or by the us8 and anployment of
    178    Hon. James C. Martin, page 2, V-431


              doors or Other boards to spread and open
              said bait trawl which are of greater size
              or dimension than twelve (12) by eighteen
              (18) Inches, or to tow or assist in the
              towing of more than one such bait net or
              trawl from a power boat, or to tow other
              boats engaged in taking bait shrimp; and
              it shall be unlawful for any person opera-
              ting a bait trawl to have on board any boat
              any amount of bait shrimp during the clos-
              ed saason in inland waters as above provid-
              ed in excess or one hundred and fifty  (150.)
              pounds of shrimp In their natural state
              with hea.dsattached. Provided that during
              such closed season in Galveston County it
              shall be lawful to take shrimp for bait by
              the use and amployment of doors or boards'
              of not greater dimension than twenty (20)
              by sixty (60) inch8S and to possess not
,             more than two hundred and fiftg~ (250)
              pounds Of shrimp with heads attached, . .~."
                    The State Is th8 owner of the fish, shrimp and
          other products of the tidal waters of the Gulf of Mexico
          within the jurisdiction of this State. Arti&le 4026, V.
          c. s.; Raymond v. Kibbe, 95 S.W. 727, 729, 730;.Stephen-
          son v. Wood,.34 s. w; (26.)246, 119,Tex. 964; Tuttle v.
          Wood. 35 S. W. (2d) 1061. writ refused: Mccreadv v:Vir-
          gini;, 94 U. S.:391, 24 L. Ed. 248; Geer v. Conhectlout,
          161 U. S. 519.
                    Article III, Section 56 of the T8Xas Constitu-
          tion, aft8r prohibiting the Legislature from passing
          "any local or special lawn in certain enumeratad instan-
          ces, oontains th8 following provision:
                    " . . . . provided, ,that nothing herein
               contained shall be construed to prohibit the'
               Legislature from passing speaial laws for the
               preservation of the game and fish of this State
               in certain localities."
                    In Stephenson v. Wood, Civil Appeals, 35 S. W.
          (2d) 794, the Galveston Court in construing this provi-
          sion of the statute said:
                    "It occurs to us that by the 'paragraph
               last quoted the~~framersof the Constitution
               meant to declarethat nothing in the Consti-
               tution should prohibit the Legislature from
Hon. Jam8S C. Martin, page 3, V-431


    passing laws, 'special or local,( for the
    preservation of the game and fish of this
    state, whether made to apply to the Who18
    state or to certain localities without no-
    tic8 required in the passage Of laws rela-
    tive to the subjects mentioned in sections
    56 and 57 of article 3 of the Constitution."
           It is immaterial that a game law applies to
some counties and not to others or that different laws
apply to different counties. The counties, as such, have
no right to complain that the game laws applicable to it
are different from the game laws applicable to certain
other counties. For instance, there are very few coun-
ties that have the same squirrel laws. Whatever the law
is in a particular county, it applies equally and with-
out diScriminStion  to all persons in the county. The
State owns the fish and game, which are ferae naturae,
and through its Legislature it may prohibit their tak-
ing altogether, or place such restrictions on their tak-
ing, as it may se8 fit, either as to the place or th8
means of taking, or both. See authorities cited above.
          In Tuttle v, Wood, San Antonio Court of Civil
Appeals, 1930, 35 S. W. (2d) 1061, the court said:
          '1. . , . It must be conc8d8d that the
     state has the inherent power, to be exercis-
     ed through the Legislature, to regulate the
     taking of fish and shrimp from its public
     waters, -and to prohibit from time to time such
     taking, in order to conserve those natural re-
     sources for the ultimate    benefit of all the peo-
     ple.  So  long as that   power is reasonably exer-
     cised by the legislative authority, no other
     branch of the government may interfere there-
     with. Ordinarily, the necessity or reasonable-
     ness of regulation or prohibition in specific
     cases, for the time being, are left to the dis-
     cretion of the Legislature, whose determination
     thereof, in the exercise of a sound discretion,
     is conclusive upon the courts. . . .v
          The Legislature of T8XaS is authorized to en-
act special laws for the preservation of game and fish
without notice required for the passage of "special or
looal laws", and it is immaterial that such laws apply
to certain localities and not to others,
Hon. James ~C. Martin, page 4$ V-431


                     SUMMARY

           House Bill No, 380 (Acts 50th Leg, 19klo
     'Ch. l&I?,p0 149) amending Art,   952, L-11, V,
     ?. co, pertaining to the taking end sale ef
     shrimp, and provfdfng that there may be uaed
     fn Galveston County, Texas fn a bait trawl for
     the takfng    of shrimp, a board not more than
     20" wide and not more than 60" long, and in
     tihsr oountirs    lf the State a board not mor8
     than 12" wide nor more than 18" longs,is con-
     atitutional.
                                    Yours very   truly

                               XITOIU'IEYGENSML OF TXM


                               -1



                                     David Wuntch
                                    .Assirta&




                               ATTORNEY GXhXRAL          '




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