                                                The Attorney           General of Texas
                                                                  January 6, 1982

MARK WHITE
Attorney General


                                              Mr. Charles D. Travis                     Opinion No. MW-421
Supreme      Court Building
                                              Executive Director
P. 0. BOX 12546
Austin, TX. 76711                             Texas Parks and Wildlife                  Re:     Constitutionality of
5121475-2501                                     Department                             section 77.094 of the Parks
Telex    9101674-1367                         4200 Smith School Road                    and Wildlife Code
Telecopier     5121475.0266
                                              Austin, Texas   18744

1607 Main St., Suite             1400         Dear Mr. Travis:
Dallas, TX. 75201
214n42a944                                         YOU?C 0piItilXl    request   seeks   a   determination   of  the
                                              constitutionality    of the exemption   of persons    holding a valid
4624 Alberta       Ave.. Suite          160
                                              bait-shrimp   dealer's   license and "maintaining   a fixed place of
El Paso, TX.       79905                      business   imediately    adjacent to a nursery    area, prior to its
9151533-3484                                  designation as such," from the prohibition of shrimping within such a
                                              designated bay as provided for in section 77.094 of the Texas Parks
                                              and Wildlife Code. Specifically, you ask whether this statute creates
1220 Dallas Ave., Suite                202
                                              a classification which violates the equal protection provisions of
Houston,    TX. 77002
713/6500666                                   either the Texas or United States Constitution.

                                                   Section 3 of article I of the Texas Constitution guarantees
806 Broadway,         Suite      312          equality of rights to all persons.     However this section does not
Lubbock.     TX.    79401
                                              forbid classifications of subjects and persons for the purpose of
6061747.5238
                                              regulatory legislation, as long as those classifications meet certain
                                              legal requirements.   state ". Richards, 301 S.W.Zd 597 (Tex. 1957);
4309 N. Tenth, Suite             S            Railroad Commission of Texas V. Miller, 434 S.W.2d 670 (Tex. 1968).
McAllen.    TX. 76501
5121662-4547
                                                   A   state  m=Y   constit"tionally    classify   its  citizens  into
                                              reasonable classes and apply different    laws, or its laws differently,
200   Main    Plaza,     Suite       400      to such classes.    Bjorgo V. Bjorgo,     402 S.W.2d 143 (Tex. 1966);
San Antonio,       TX.     76205              Railroad Commission of Texas V. Miller,   supra.
512/225-4191

                                                   A classification is reasonable if it is based on a real and
An Equal      Opportunity/                    substantial difference which relates to the subject of the particular
Affirmative     Action     Employel           enactment and operates equally on all within the same class. state ".
                                              Richards, supra; Railroad Commission of Texas V. Miller, supra.

                                                   Classifications made by the legislature and the imposition of
                                              varying   burdens  upon  different   groups  are   largely  within  the
                                              discretion of the legislature.   The courts will not strike down such a
                                              statute where there is a real difference to justify the separate
                                              treatment undertaken by the legislature.    Dancetown, U.S.A., Inc. V.




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Mr. Charles D. Travis - Page 2   (MW-421)




State, 439 S.W.2d 333 (Tex. 1969); Calvert V. American International
Television, Inc., 491 S.W.2d 455 (Tex. 1973).   The test is whether
there is any basis for the classification which could have seemed
reasonable to the legislature.    Railroad Commission  of Texas V.
Miller, supra; San Antonio Retail Grocers, Inc. V. Lafferty, 297
S.W.2d 813 (Tex. 1957).

     The same type of restrictions on classifications, with certain
variations, apply to such legislative action through the Fourteenth
Amendment to the United States Constitution.    In reviewing legislation
under the equal protection clause of the Fourteenth Amendment, the
United States Supreme Court has used two primary standards of review.
Under the first, minimal scrutiny, a law which classifies persons for
different treatment, will be upheld so long as there is some rational
basis for the classification; i.e., so long as the classification is
reasonable, not arbitrary and rests upon some ground of difference
having   a fair and substantial       relation  to the object    of the
legislation.    Reed v. Reed, 404 U.S. 71 (1971).      Under the second
standard, strict scrutiny, the classification will be upheld only if
the governmental body makes a showing of a compelling interest to
justify the classification.     Dunn V. Blumstein, 405 U.S. 330 (1972).
Strict review is triggered either by laws which affect certain
"fundamental rights" such as voting or travel, or which provide for
different    treatment   of   persons  on   the  basis  of   a  "Suspect
classification" such as race, alienage and national origin.     Unless a
classification triggers strict review, the constitutionality of the
statutory discrimination is presumed and the only requirement is that
the classification     challenged be rationally related to legitimate
state interest.    City of New Orleans V. Dukes, 427 U.S. 297 (1976).

     In a case involving the state of Texas' classification         and
treatment  of "commercial"    fishermen  as contrasted   with   "sport"
fishermen, the Fifth Circuit recently held that since fishing is not a
fundamental right nor the class of commercial fishermen a suspect
class, the Texas statute is not subject to a strict scrutiny and such
disparate treatment need only have a rational basis.     Sisk V. Texas
Parks and Wildlife Department, No. 80-1177 (5th Cir. May Ll, 1981).

     In view of the purpose of section 77.094, i.e., to exempt certain
bait-shrimp dealers from the general prohibition of shrimping within
nursery areas, there would necessarily have to be a rational and
reasonable basis for this classification or the statute would be
unconstitutional.  The determination of the existence or absence of
any grounds for exempting a certain group from a general prohibition
rests within the sound discretion of the legislature.  The decision of
the legislature is subject to review by the courts upon allegations
that no reasonable basis exists that would support an exemption for
certain bait-shrimp dealers from the general prohibition of shrimping
within nursery areas. We cannot say as a matter of law that there is




                              p. 1435
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        Mr. Charles D. Travis - Page 3      (MW-421)




        no rational basis for the classification       created by section 77.094 of
        the Parks and Wildlife Code.

                                      SUMMARY

                       Section 77.094, Texas Parks and Wildlife
                  Code, by creating a "grandfather" exception for
                  commercial bait-shrimp dealers from a prohibition
                  on fishing designated nursery areas, does not on
                  its   face    contravene    the   equal    protection
                  guarantees   of   the   Texas   and   United   States
                  Constitutions; it does not in fact do so if there
                  exists a reasonable, rational basis for exempting
                  this class of shrimpers.




                                                     MARK      WHITE
                                                     Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Ken Cross
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Tim Brown
        Ken Cross
        Rick Gilpin
        Jim Moellinger




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