                   THE         ATTBIZNEY                   GENERAL
                                     OF        TEXAS

                               Auwrmr.         TEXAS       78711
  aoBN  L ax-
ATroRNEY 0 -AZ
                                     May 22,     1975


      The Honorable Clayton T. Garrison                     Opinion No.   H- 613
      Executive Director
      Parks & Wildlife Department                           Re: Authority of cities to adopt
      John H. Reagan Building                               fishing regulations which differ
      Austin,  Texas   78701                                from those promulgated   by the
                                                            Parks & Wildlife Department.

      Dear Mr.   Garrison:

               You have requested our opinion regarding the authority of cities to
      adopt fishing regulations which differ from those promclgated   by the Parks
      and Wildlife Department.    Specifically, you ask:

                       1. Whether an incorporated    city or other local govern-
                       mental entity may adopt and enforce,    with respect to
                       fish caught in the public waters under its control,
                       size and bag limits which differ from those imposed
                       by the Parks & Wildlife Commission     pursuant to the
                       Uniform Wildlife Regulatory Act.

                       2. Whether an incorporated     city or other local
                       governmental    entity may adopt and enforce,   with
                       respect to the public waters under its control,    an order
                       establishing  a minimum age requirement     below which
                       an individual is prohibited from fishing.

             Article   4026,   V. T . C. S.,    declares    that

                       All fish and other acquatic animal life contained in the
                       fresh water rivers,  creeks and streams and in lakes
                       or sloughs subject to overflow from rivers or other
                       streams within the borders of this State are . . . the
                       property of the people of this State.

      The public enjoys a general right to fish in the public streams and waters,
      subject to regulations imposed by the State.   Diversion  Lake Club v. Heath,
      58 S. W. 2d 566 (Tex. Civ. App. -- Austin 1933), aff’d, 86 S. W. 2d 441
      (Tex. sup. 1935).




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The Honorable     Clayton   T.    Garrison    - Page 2



         The Uniform Wildlife     Regulatory Act, article    978j-1, Penal
Auxiliary  Laws, initially adopted in 1967, empowered        the Parks and
Wildlife Commission,     in particular  counties, to:

                  by proclamation,   rule or regulation,    from
                  time to time, provide the means and the method
                  and the place and manner in which . . . wildlife
                  resources  may be lawfully taken.      Sec. 2.

The Act further    specifies     that:

                  All game laws. . . shall be in full force and effect
                  until the Parks and Wildlife Commission    shall, in
                  accordance with this Act, issue a proclamation,
                  rule or regulation dealing with the subject matter
                  of the county affected by such presently existing
                  game law.    Sec. 18.

You state that a number of cities have inquired as to whether they may
impose size or bag limits which differ from those presently in effect by
virtue of regulations  already promulgated  by the Parks and Wildlife
Commission.     We limit our opinion to those waters defined in article 4026
which are the fresh water rivers,   creeks and streams and lakes and
sloughs subject to, overflow from rivers or other streams.    It is well
established  that:

                  Municipal ordinances must conform to the limitations
                  imposed by the superior statutes,   and only where the
                  ordinance is consistent with them, and each of them,
                  will it be enforced.  Bolton v. Sparks,  362 S. W. 2d
                  946, 950 (Tex. Sup. 1962).

Although   a city is at liberty     to act:

                    [A] s long as the state does not, in its Constitution
                  or by general statute, cover any field of the activity
                  of the cities of this state any given city is at liberty
                  to act for itself.    But when the state itself steps in
                  and makes a general law and applies such law to all
                  cities of a certain class.     . . no city of the sane class
                  is authorized.     . . to enact contrary legislation.
                  of Beaumont v. Fall, 291 S. W. 202, 205-06 (Tex. %mm.
                  App. 1927).




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The Honorable    Clayton   T.   Garrison     - Page    3



         Since the Legislature   has conferred upon the Parks and Wildlife
Commission     the authority to prescribe    the “manner in which wildlife
resources    may be lawfully taken, ” since the Commission       has imposed
size and bag limits upon certain categories      of fish in certain geographical
areas,   and since the right of the State to control the public waters is
paramount,    it is our opinion that an incorporated    city or other local
governmental     entity may not adopt and enforce,    with respect to fish
caught in the public waters under its control,     size and bag limits which
differ from those imposed by the Parks and Wildlife Commission           pursuant
to the Uniform Wildlife Regulatory Act.

          In response to your second question,   we believe that a city is also
prohibited from adopting an order which establishes      a minimum age require-
ment for the privilege of fishing.   Article 4032b-1,   V. T. C. S., requires a
fishing license of all persons at least 17 and under 65 years of age.      No age
restrictions    are imposed therein on the privilege of fishing.    Furthermore,
article 4032~ grants to:

                All residents of this State who are 65 years of age or
                over and all persons who are under 16 years of age
                shall be entitled to all hunting and fishing privileges
                for which a commercial     license is not required,
                without obtaining a license for such non-commercial
                privileges  and without payment of any fee.

It is thus apparent that the imposition of a minimum age requirement
would contravene the clear intent of article 4032~ to extend to persons
under 16 years of age the privileges   of non-commercial    fishing.   An
order imposing such a requirement      would not be “consistent   with statute, ”
Bolton v. Sparks, m,        and a city would thus be precluded from adopting
and enforcing it.

                                  SUMMARY

                An incorporated    city or other local governmental     entity
                may not adopt and enforce,      as to the public waters
                under its control,    size and bag limits on fish which differ
                from those promulgated      by the Parks and Wildlife Commission
                pursuant to the Uniform Wildlife Regulatory Act, nor an order
                establishing  a minimum age requirement        below which an
                individual is prohibited from fishing.




                                                      Attorney   General   of Texas



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The Honorable   Clayton   T.   Garrison   - Page 4




   ROBERT HEATH,          Chairman
Opinion Committee

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