                            May 12, 1967


Honorable Jack Hightower                            Opinion No. M- 72
Chairman, Qame & Fish Committee
Texas Senate                                        Re:    Validity   of that portion
Austin, Texas                                              of Senate Bill 462 of the
                                                           60th Legislature   providing
                                                           for
                                                             .. cancellation
                                                                     _ _      of_ _ per-
                                                           mlts to areage shell or
Dear Senator   Hightower:                                  mudshell in certain areas.
          Your   request         for   an opinion     reads as follows:
            “Attached are copies of Senate Bill 462
     and Committee Substitute    for Senate Bill 462,
     I would appreciate   an opin?.on regarding the
     constitutionality   of cancellation   of permits
     which would result from passage of this bill.”
            Senate Bill 462 of the 60th Legislature amends Article
4053, Revised Civil Statutes of Texas, 1925, as amended, by
adding a new Section 2A, which provides that no permits to dredge
shell or mudshell in certain areas shall be granted,    Subsection
     contained in Committee Substitute  for Senate Bill 462 reads
~Yfollows:
             “(b)    Every permit issued before the ef-
     fective      date of this section is hereby revoked
     to the extent that it grants any authority        in
     conflict      with the statutory  conditions stated
     in Subsection      (a) of this section.”
          Subsection       (f)     of Senate Bill         462 reads as follows:
            “Every permit issued before the effective
     date of this section is hereby revoked to the
     extent that it grants any authority     in conflict
     with the statutory   conditions  stated In Sub-
     sections   (d) or (e) of this section.”
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Senator   Jack Hlghtower,   page 2 (M-72)


           Subsection   (a) referred   to in the Committee Substitute
and Subsections   (d) and (e) referred     to in Senate Bill 462 are
those subsections   prohibiting    the issuance of permits to dredge
shell and mudshell in certain areas designated therein.        You have
requested our opinion on the validity       of those portions of Senate
Bill 462 and the Committee Substitute       for Senate Bill 462 above
quoted~.
            Article  4051, et seq., Vernon’s Civil Statutes,    au-
thorize the issuance of permits to dredge in waters of this
State shell or mudshell under certain conditions     prescribed    by
the Legislature.     Senate Bill 462 of the 60th Legislature,    if enacted,
would amend Article    4053 so as to prohibit the issuance of such
permits in certain waters of the State, and the provisions       which
you Inquire about, if enacted, would revoke permits heretofore
issued by the Parks and Wildlife    Commission rather than merely
prohibiting   the Issuance of any permits from and after the ef-
fective   date of Senate Bill 462.
              The State may either grant or refuse the privilege        of
exploitation      of the resources     of Texas bays and other public waters.
Texas Oyster Growers Association          v. Odem, 385 S.W.2d 899 (Tex.Civ.
A P. 19ob , error re . n.r.e.        .              Haden v. Dodgen, 158 Tex.
4,   308 S .W. 2d 838 (1958)) the Co&-d                at page 842:
              I,
                . . .Power to sell mudshell Is conferred by
       statute on the Game and Fish Commission of Texas.
      Article     4052 provides that the Commission ‘shall
      have full charge and discretion          over all matters
      pertaining     to the sale’ of mudshell and other deposits.
      Art. 4058d provides that with appyoval of the
      Governor the Commission ma       3 sell    upon such ,terms
      and conditions     as he f-it      may deem proper.
      There is no statutory-pr%islon           governing or
      limiting     the manner of sale.      So far as the statutes
      are concerned the Commission may sell by contract,
      m’iiiifally binding on the State and the vendee, or
      by permit revocable       and amendable at the will of
      the Commission.       Its selection     of the manner of making
      sales as well as its decision         as to whether the manner
      it has followed constitutes         a valid contract Is the
      selection     and decision   of the State; and however in-
      correct the latter decision may be, a suit to test
      it by seeking enforcement of contract rights is
      necessarily     a suit against the State which caanot
      be maintained without legislative          permission.
       (Emphasis added.)
                            - 331 -
Senator   Jack Hightower,    page 3 (M-72)


           In view of the foregoing,   the Parks and Wildlife
Department may grant the privilege    of exploitation  of the resources
of the public waters in the State by permits revocable      and amendable
at the will of the Department.     Thus a person granted a permit
does not acquire any rights which may not be revoked by the State.
            Therefore,   you are advised that under the provisions    of
Senate Bill 462 of the 60th Legislature      and the Committee Substitute
for Senate Bill 462, if enacted, the State is merely exercising
its authority    to refuse the privilege   of exploitation   of the
resources   of the public waters of the State.      The bill does not
affect   any contract for sale of property of the State by contract
mutually binding on the State and a vendee, but only affects        per-
mits which are revocable     and amendable at the will of the State.
You are therefore     advised that the provisions   of Senate Bill 462
and provisions    of the Committee Substitute    for Senate Bill 462
are constitutional’,
                        S U MM A R Y
           Senate’ Bill 462 of the 60th Legislature      and
     the Committee Substitute     for Senate Bill 462 pro-
     viding for cancellation     of permits granted by the
     Parks and Wildlife    Department pursuant to the pro-
     visions of Articles    4051, et seq., Vernon’s Civil
     Statutes,   if enacted, are constitutional     since
     their provisions    do not apply to any contract
     of sale, but only affect     permits revocable    and
     amendable at the will of the State.
                                  Vefi   truly   yours,




Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman


                            - 332 -
Senator   Jack Hightower,    page 4   (M-72)


Pat Bailey
William J. Craig
Neal Williams
Houghton Eirownlee
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.




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