Mr. H. D. Dodgen                Opinion No. WW-1487
Executive Secretary
Game and Fish Commission        Re:   Interpretation of the
Austin, Texas                         duty and authority of
                                      the Game and Fish Com-
                                      mission under Article
                                      4053, Vernon's Civil
Dear Mr. Dodgen:                      Statutes.
       You have requested the opinion of this office regard-
ing proper Interpretation of the duty and authority of the
Texas Game and Fish Commission under Article 4053, Vernon's
Civil Statutes.
      Article 4053 reads in pertinent part as follows:
            11      If the Commissioner Is satls-
      fled that-the taking, carrying away or dls-
      turblng of the marl, gravel, .sand, shells or
      mudshell in the designated territory would
      not damage or injuriously affect any oysters,
      oyster beds, fish Inhabiting waters thereof
      or adjacent thereto and that such operation
      would not damage or Injuriously affect any
      island, reef, bar, channel, river, creek or
      bayou used for frequent or occasional navl-
      gatlon, nor change or otherwise Injuriously
      affect any current that would affect naviga-
      tion,  he may Issue a permit to such person
      after such applicant shall have complied with
      all requirements prescribed by said Commls-
      sloner. . . .'
       In your letter requesting this opinion, you state
that certain Galveston Bay shell firms have Indicated a
desire to dredge the shell deposits underlying three large
reefs In Galveston Ray. You further state that such utill-
zatlon would necessarily Involve dredging reefs which are
the chief commercial oyster producing reefs In Texas waters,
and It Is therefore probable that the utilization of the
shell deposits would result In injury or damage to these
r   -r                                                        -     -




    Mr. H. D. Dodgen, page 2 (WW-1487)


    oyster beds within the meaning of Article 4053.
           In clear and unequivocal language, Article 4053 re-
    quires that the Game and Fish Commission be satisfied that
    the removal of material from the river bed or bay would not
    damage or Injuriously affect any oysters, oyster beds, etc.
    By Article 4051, Vernon's Civil Statutes, the Game and Fish
    Commission Is vested with the duty of management, control
    and protection of the State's Interest In a wide variety
    of property. Article 4053 sets forth the conditions under
    which the Commission may grant a permit for a private person
    or corporation to remove some of this property. The Com-
    mission Is bound to follow the precise terms of Its grant
    of authority.
           It Is made clear from your letter that the Commls-
    slon is not satlsfled that the removal of shell from beneath
    the reefs In Galveston Hay would not cause harm to the oyster
    beds connected with the reefs. The Commission 1s granted
    discretionary authority with reference to the granting of
    permits for the removal of shell deposits from the lands
    and waters under Its control. Such authority Is not dele-
    gable; neither may It be abrogated by a ruling of this of-
    fice.
                              SUMMARY
             Under Article 4053, Vernon's Civil Statutes,
             the Texas Game and Fish Commission has dls-
             cretlonary authority to grant or deny permits
             for the removal of marl, gravei, sand, shells
             or mudshell, and the Commlsslon has a duty to
             follow the llmltatlons established by the
             Legislature.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas




    MIQ:ms
Mr.   H. D. Dodgen, page 3 (~~-1487)




APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Albert Prultt
Cecil Rotsch
Sam Stone
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
