                          T~~~A~ORNEYGENE~L
                                   OF TEXAS
                                      AUSTIN   11. ‘Jk=e
        FVILL    WILSON
      AITORNEYCENERAJ.



                                        July 3, 1957’

   “
   i’ :     Texas Game’and Fish Commlsslea                 .
,‘.         Austin, Texar
                                                   Opiales     No. WW-151.
                                                   Re: Jurisdiction  of the Gsti
                                                       and Fish Commlsslon’with
                                                       z%spcct to the removal
                                                       of “non-merchantable”
                                                       material utiderlyiag pub-
                                                       lic waters.
            Gentlemen:
                      B? letter dated April 4, 1957, you state that the corn-
            mission ‘anticipator       being faced with the decision        a8 to
             whcthcp er not It has any official         jurisdiction     in the matter
             relating    to the construction    ef a navigable channel la Gal-
             veston   Bay .‘I While you now and In the paat have arserted juri~-
             diction   in the bby arcaa with rerrpcct to the commercial salt
             of aand, shell,     gravel bad marl; you adviac that you have
             neither exercised     n,or aeeerted jurisdiction        with respect to
             dredging 5.a coancction~wlth      a project    not involving     the com-
             mercial eale of the materials mentioned. Yeu conclude with
            ;a requcrt for an opinion from this office            “ag to whether the
.,,        ‘(iam    and Fish Commiseion is charged by law with lsaulag pe,r-
             mltr for the removal or dlclplacement of non-merchantable
            material” from the bay .*
                      Prior to 1911 the publia generally was fret,         without
            control’ or supervision,      to remove mudahcll, sand, gravel and
            other materials from the bottoms, underlying the public water6
            of thlr State; Gore v. City of Rosenberg, 115 S.W. 663, (Tex.
            Civ. App., 19097 no writ hirtory).
                                                                           .S’
                      It Is fairly   inferable   that the Gore case, Bupra, fc-
            cused the lttcntien      of the Legislature    mhe    situation     then
            exletieg,     for that body in 1911 enacted the first       laws de-
            rigmed-for     the protection    of the bottoms undcrlyln      the pub-
            llo.waterr     and the tiarlae life contained therein.      7S.B. 348,
            Gen. L&wr, 32nd Leg., ch. 68, p. 1.18).
                    The basic enactment, although &mended several tlmce
            im minor ~8~6, ia the lgll~Speclal   See8to8, ia 1919, la 1925,
            and firally  la 1951, has for al.1 purposes material to the
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     Texas Gemc and Fish Commission,       page 2 (WW-151)


     present inquiry remained unchanged. The pertinent pertions
     thereof pc now codified      as Articles      4051, 4052, and 4053,
     V.A.C.S.    It ia unnecessary te quote verbatim all of the
     provisions    of these atatutea.    Suffice    It to say that Article
     4051 pravidea that: “All of the ielamde, reefs,          bars, lakes
     aad bays . . . tegcther.with       all ef the marl and sand of
     oommeralal value, etnd all the shelle,         mudahell or gravel ef
     whatioevor kind” were included within the provisiona            of the
     Act and were thereby “placed,under         the maRagemcnt, control
     aad protection    of the Commiesioner.” Artlole       4052 vests in
     fhe Commissioner “all the powers ard ,&uthority aeoesaary,to
     aarFg’imtd effect     the provleioas”    if the Aot and direct8     that
     the Commleeloaer shall have “full         charge and disaretion    over
     all matters pertailrlmg to the sale, the taking, the oarrying
     away or disturbin@ of all marl, rard or gravel of aommeroial
     value; a8d all gravel and shells or mudrhell and oyster beds
     a8d tholr protootiom from froo uee and u8lawful disturbing             or
     approppI8tIon    of same” exaept aa provldod In the Aot.
               Fiially,   germane to the questiom under aonslderatloo~,
       the Legialaturc    prescribed   ii Artiale   4053 the prooedure amd
       comditlers    under which persons mey purohaee~marl amd rand of
       aommeroial value “or otherwise operatie”’ In the- pubU.0 landa
       and waters ilsoluded withFa the provielona        of the,Aot. Thw
       PrOVi~miQni8 made for an applioatiom        therefor‘tio    tho Commir-
       eiombr and,if,    after irvestigatloa,     that agenoy I+ satisfied
       nthat the taking, carrylag away or disturbing            of the marl,
      :graeel,   aand, ehcll or mudshell . . . would not damage or
    : ~imjutiiounly affeot” the waters aed land lnoluded in the Act
      ~f@mer‘ohange or indurioualy     affeot amy ourremt thet would
       affoat  navigation     a permit may be labued after the applioaQt
     .,*shall have complied with all requirement8 derorlbed by the
       Commlesioner. ‘2
             From a reading of the pertinent        etatutee,    It is Plain
     that $he paramount intention      :of the LcglelatUrc was and le. the
I    proCeotio8 of oyster beds, fish ahd fish breeding grouada.
     Tm&, provision     ia alae made ,for the commcrolal dlsposltlon
     if $ho m8teriUa on the bettoms and shorts of the area8 under
     aonbideNtlo8.     Thlr ditipoabtlon,    however, wisely was placed
     in the atate agemy most familiar with and ataffod with per-
     sonnel trained for the protcation         of the wat?r~s.a8d marime
     life affected    th6reby. It le sigrifiaamt,       tool: that ArtSale
     4051 refer@ to material8 “of, aommsroial value            and materlalb
     *if whatsoever kimd”; Artlale        4052 apecifles,     in addition-to
     aoommcrcial materiaW,        t$M*t.the Commlsrboaer rhall pr6teot
     from free us4 er unlawful dihturbiu& all gravel and ehells
     or mud8hell ana oyrtor$eds”;         while Article    4053 pertaime to
     perrone desiring     te pt&hare “or otherwise operate in amy of
     the water@ or area in .,quostioa.
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            Texas Game and Fish Commission,      page 4 (WW-151)




            JRR:bk
            APPROVED:
            OPI~OI! CCHMITTEE
            H. Grady Chandler, Chairman
                                           ..I
            1.
              The office  of Game, Fish and Oyster Commlssloacr was abo-
            lished and In its stead~and with Its powers was created the
            Game, Fish and Oyster CommisiHon. Acts 1929, 41st Leg.';' ch.
            118, p. 265. The offlck    of Game, Fl#h and Oyster Cemmisblon
            was abolished aad In Its atcad aad with its powers was created
            a Gamh and Fish Commiatilon. A&8, 1951, 52nd Leg., p. 850,~
            476, ccdiflcd   as Article  gi'8f-3, Sec. 1, V.P.C. Heacc where
            the statutes under consideration     use the word "Commissioner",
            the agency affected    is the Game and Fi6h Commission.

            2Thc priclse  question under ciraldcratlon     has rot been adju-
            dicated.  Por a aoaitructlon,  of these statutes   with icspect
            ta conmcralal activity,    set Columbia-Southern   ChcmZcal-Corp.
            v.~Corpus Christi Shtill Com@an 297 S.W. 2d 191 (San Antonio
            Clv. APP., 195b, 80 writ histm$).      The opinion of the ccurt
            is nclthe% lsceislrteat    with nor corroborative   of the views
            cxprcrscd herein.
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Texas Game and Fish     Commission,    page 3 (WW-151)



        As above indicated,     the original    act of 1911 hae been
brought forward into present       law with no substantial    change
as far as the present    question    is concerned.   It is interesting
to note that the emergency clause       in that Act supports    the
views expressed  herein.    Such clause    provides   in part

               “The fact that large quantltles        of
        the marl, sand and shells        or mudshell on
        the coast are he!ny taken and carrl.ed away
        dally’ and the oyster, beds and. fish breeding
        waters are being disturbed        and ruined,    and
        there being no statute       protecting   same from
        wanton destructlen      creates   an emergency . . .”
                 10 S.B. 348 Gcn. Laws, 32nd Leg.,
        I”,;;;  p.‘118,  ch:&.)

        WC thiaK     it beyond serious  question    that conservation
and protccticn     ef marine life   and breeding    grounds was and Is
the chief   purpose of, the Actunder     consideration.     Cammerclal
aalca are   incident    thereto.

         Should it be argued that the protcctlcn          of the marine
life  and breeding     areas was net the main and chief        purpose
of the Act, such a goal,        nevertheless     was  at the  very   least
a specified    objective    thereof.   Since  ‘non-commercial     dredging”
would have precisely       the same effect    in thio respect     aa ‘Icom-
mcrolal dredging” ,it followa        that “nor-commercial”     activity
or lpcratlon in the area in question          ia within the term8 of
the Act.

        We, therefore,    are of the opinion,    and so advise,    that
you legally   have the jurisdiction    and responsibility     for the
issuance of permits     to dredge the unpatented    lands underlying
public water8 in this State regardless        of the purpose,    com-
mercial   or otherwiao,   ef such dredging.
                                 SUMMARY
                                 e-m
              The Game and Fish Commission is charged
        by iaw with the determination     and the issuance
 .’     of permits for the removal or dlsplacemert      of
        aoa-mcrchantabl6  material8   from the unpatented
        land& underlying  the public    waters of this State.

                                             Very   truly   youra,



                                             WILL WILSON
                                             Attorney General        of   Tcxaa
