:-
                       THE   :ATTORNEY           GENERAL
                                  OF ?lxxAs




     honorableH. D. Dodgen !                 opinm   NO.   ~965
     %.xuIT~v~  Secretary  :
     we and Fish Conanission                Re: (1) Const~ction of House Bill
     ws.lton Building                           l2,Acts 56thLegislature1959,
     Austin,Texas                               Article 4075b, Vernon'sAnnotated
                                                Civil Statutes,relativeto size
                                                0r travl that my be lawiullyusea
                                                for sportsfishermenIn the taking
                                                of sbrlmpby SportsBait-Shrimp
                                                Trawl; (2) and the rcrvfulmeans
                                                and method of th' taking of sh+imp
     Dear Mr. Dodger                            other than by trawls.

            You have request+en opinionof this Departmentgn the a+me subject
     matterand your .inquiry.reLstesto the shriahageallowanceon.SportsBsit-Shrimp
     Trawlsas comparedto shHnka&e   allowedon Oxnmerci.slBay-Bait-ShrimpTrawlsa$
     your question numbq 2 posing the que@&masto whetherany other type of seines'
     or nets other than trawls couldbe lawfullyused for the taking of shrimp.

            The Legislaturepassed,thel&s Shrimp Coneeivattae~c$.BouseBill l.2,
     ch. l&l, Acts 19!5g,56th.Legislature,
                                         which originalbIlLwas exxctedinto law
     end is now carriedin Vernon16Annot+ed Civil Statutesas Article 4075th In
     suchlaw the Legisliturein Section1 provided In part as follows:

                 "Sectlon1. This.Ad sbllbe lammasthe         "Peras Shrimp
          Conservation Act' and It is hereby declaredby the Legislatureof
          the State of Texas as t6 be the public policy of this State that
          the Sbdup resourcesofthe.St&e of Texas be conservedand pro-
          tected from deptitia end waste in ordezthat the peopleof Texas
          and their posteritymay enjoy the mo&:.reaeonableand equitable
          prlvfiegesin the ownershipand taking of such shrimpremur'6es,
          cmdthatthe shrimp industryofTexas be protectedfrommlawful
          encroachmentand be promotedend fosteredconsistentwith the
          geueralgood of the people of this State md to thos&ends, and.ln
          the interestof achievingfair, impartial,and unifornlaw enforce-
          ment. lt is furtherdeclaredby the Legislatureof Texas to be.the
          Public Policy.cifthie.Statethat any and all laws. acts, bills,
          rules,regulations.proclamationsor orders .relating   to.shrimpor
          the shrimp lnduetryshall be carriedou+ under this Act, any other
          provisionbf.the .I.awto the contrarynotwithstanding;  provided.how-
          ever nothing In this Act shall be construedto affect or repealany
          existinglaws that close any &y or other area of the insidewaters
HonorableH. D. Dodgen,Page 2   (WW-965)

      to the taking or catchingof shrimpthroughoutthe entire
      year." IEmphasisadded1

       Pursuingthe necessaryspecificprovisionsto make the law clear the
Legislatureclassifiedthe coastalwaters of this State as "outsidewaters"snd
"insidewaters". This was done in order that the "insidewaters"could have
specialprotectionin the breedinggrounds,etc., of the shrimp. The boatsto
be used for the variouspurposesin the "outsidewaters"and the "insidewstersn
are specificallydefined. For example,Section3, subparagraph(e), provides
for a "ConunerclalGulf ShrimpBc&'l.

       Section3, subsection(f), providesthat a CommercialPay-BaitShrimp
Eioatis used for the purposeof taking shrimpfor bait only.

       Section3, (i), "SportsBait-ShrimpTrawl is a trawl for the purposeof
taking or catchingor attemptingto take or catch shrimpfor bait for one'sown
personaluse."

      For the purposeof reachingthe conclusionherein statedwe think it
unnecessaryto quote all of the provisionsof the Act relatingto the sale of
shrimp,etc., but will confineour construction to Section6, and Sectionll,
Article4G75b.

       Section6, subparagraph b, providesfor .smesh of one (1) inch mesh or
two (2) inch stretchmesh at the time such bag Is new and unused,yet it carries
an exceptionwhich provides,(exceptfor catchingbait shrimpas otherwiseherein
provided.)

       The size of mesh that may be used for a "CommercialBay-BaitShrimpBoat"
operatoris specifically  providedfor in Section6, paragraph(c), subparagraph
(l), which reads as follows:

             "It shallbe unlawfulfor any bona fide licensedCommercial
      Bay-BaitShrimpBoat operatorto use in the coastalwaters of this
      State,at any time, for the purposeof taking or catching,or
      attemptingto take or catch,shrimpfor bait more than one (1) net
      at a time, exceptfor a try net not exceedingrive (5) feet as
      measuredfrom board to board, or to use any net exceedingin size
      twenty-five(25) feet measuredfrom board to board or betweenthe
      extremesof any other spreadingdevice,or any net havinga mesh
      size of less than one and one-half(11/2) inchesstretchedmesh
      at the time such net is new and unused,or to have in use or on
      board in the insidewaters of this State duringthe closed season
      thereofmore than one set of trawl doors (or other spreadingdevice)
      and more than one set of try net doors." [Emphasisadded]

      Prom observingthe contextof this portionof the Act it is noted that s
provisionis made that a "Commercial
                                  Bay-BaitShrimpBoat" operatoris prohibited
HonorableH. D. Eodgen,Page 3   (~~-965)

fromusFng a mesh size of less then one and one-half(11/2) inchesstretched
mesh at the time such net is new end unused.

       The shrimpIndustryand the Game and Fish Commissionofficersare well
scquainted with the fact that a new and unused trawl will shrinkwhen treated
"it,hpresellrativesto preventits being soonerdestroyedby the act of salt
mter thereonand even subjectinga non-treatednet to salt water will cause
shrinlratwThere is no set formulaby which the emountof shrinkagemay be
determinedin the variousinstancesin as much as all operatorsor shrFmp
trawlsdo not pursue the Identicalmethod of treatment,therefore,it Is the
clearintentionof the Legislaturethat a one and one-half(1 l/2) Inch
stretchedmesh at *he time such net is new and unused will shrinkand become
B net smallerthan one and one-half(1 l/2) Inch stretchedmesh due to shrink-
age. If this were not true, the words "new and unused"vould not have been
used. The LegislatureIoxv a treatednet would shrink.

      The Act makes it clear that shrimpmay be taken by a "CommercialBay-
BaitShrimpBoat" for halt purposesonly and prohibitsthe sale of shrimptaken
by such operatorfor human consumption.

      We now turn to Sectionll of Article 4G75b which reLatesto "Sports
Bait-ShrimpTrawl". The full contextof the Sectionfollows:

            "SectionIl. It shall be lawful for any personto take
     or catch,or attemptto take or catch in the coastalwaters of
     this State, bait shrimpfor his own personaluse by the use of
     Cast net, Dip net, Bait trap, or Minnow seine not largerthan
     twenty(2Q) feet inlengthmanuallyoperatedon root only vlth-
     out the use of any mechanicalmeans or devices;and it shall be
     lawfulfor aw nersonto take or catch.or attemntto take or
     catch,bait shrimp for his own personaluse by the use of a
     "SportsBait-ShrimpTrawl" as definedherein. Provided,however,
     it shallbe unlawfulfor any "SportsBait-ShrimpTrawl" to be In
     the possessionof any personwithin the coastalwaters of this
     State,tithoutthe owner thereof having first procureda license,
     to be known as a Sports Bait-ShrimpTrawl License,from the
     Commissionprivilegingsuch trawl to be used withinthe coastal
     waters of this State; providedalso, that such trawl shall first
     have been inspectedand properlytagged by the Commissionand an
     inspectionand licensefee of Three Dollars ($3) shall have been
     paid to the Commission,also the lic&nseprovidedfor herein shall
     expire on August 31st followingthe date of Issuance. Provided
     further,that It shall be unlawful for any person to use or have
     within his possessionwithinthe coastalwaters any SportsPaIt-
     ShrimpTrawl having a mesh smallerthan one and one-half(1 l/2)
     inch stretchbetween the knots; and it shallbe unlawfulto use
     or employ doors or other boards or devicesto spreador open such
Ho&able   H. D. Dodgen,Page 4   (~~-965)

       trawlswhich are of greatersize and dimensionsthan twelve
       (12) by eighteen(ti) inches,or a total of two hundredand
       sixteen(216) squareinches,providedfurther,that it shall
       be unlawful.to have in possessionor to use more than one (1)
       such trawl per boat and the distancebetweenthe doors or other
       boards or spreadingdeviceshalltit exceedtwelve (12) feet.
       Providedfurther,that it shallbe unlawfulfor any person
       taking or catching,or attemptingto take or catch, shrimpfor
       his own use, under the provisionsof this Act, to have within
       his possessionmore than two (2) quarts0r shrimp per person,
       eitherfresh shrimpwith heads on, or frozen shrimp,or both,
       to be used for bait purposesonly, but not otherwise;provided
       furtherthat any personmay take or catch shrimpduringthe open
       seasonfor his own personaluse providedthe catch meets the
       count requirementsof this Act, any other provisionsor this Act
       to the contrarynotwithstanding."[%phasis added]

       An examinationof Sectionll indicatesthat the Legislatureprovidedthat
a Sports ShrimpTrawl shouldhave a mesh not smallerthan one and one-half(11/2)
inchesbetweenthe knots and it is significantto note that they failedto use the
language."atthe time such net is new and unused". Since both nets are for the
purposeof taking bait shrimponly end sincethe Legislaturerecognizedthat
shrInkagewould occur in the mesh of trawls of the CommercialBay-BaitShrimpBoat,
therefore,it Is the opinionof this Departmentthat it was clearlythe Legislative
intentto allow the same tolerancefor shrinkageto a SportsBait-ShrimpTrawlas
thst allowedto a f%mmercialBay-BaitShrimpTrawl.

       Iu consideringyour questlonnumber 2 we examinedall of the sectionsof
House Bill kI75b, Vernon'sAnnotatedCivil Statutes,88 well 8s the captionof
House Bill 12, supra,and we find that there is no provisionfor the takingof
shrimpother than a try net end a trawl other than in~sectionll. It provides
that the taking of shrimpfor one% own personaluse may be lawfullytaken by the
use of a Cast net, Dip net, Bait trap or Minnow seineno largerthen twenty(20)
feet in length,manuallyoperatedon foot withoutthe use of any mechanicalmeans
or devices. In the same Sectionll a definitionis given of a "Sports Bait-Shrimp
Trawl" though it appearsthat the only person who may lawfullytake or catch
shrimpby use of other than a try net and trawl are sports fishermen.

       The Legislaturedid not we fit to specifically   providefor the sizemesh
of a Cast net, Dip net, Bait trap or Minnow seine that may be used for a sports
fishbrman; Since the Legislaturewas,dealingwith the subjectof taking shrimp
for bait &poses only and saw fit to providethe mesh size of trawls,it is
obviousthat it was not intendedto place a limitationon the size of mesh of the
other nets end seinesreferredto above. This shouldanswer your questionnumber
2.
BonorableH. &Dodgen, Page 3   (~~-965)
                                   SUMMARY

      (1) ArticlebO75b relatingto the ta&ing of bait shrimpby
      SportsBait-ShrimpTrawl in which the law prohibitsa mesh
      smsllerthen one end one-half(11/2) Inchesstretchedbetween
      the knots intendedthe tolerancefor shrinkageallowedtrawls
      or CommercialBay-BaitShrimp Boats.
      (2) Cast nets, Dip nets, Bait traps or Ylnnow seinesare the only
      means other than trawl allovedfor the taking of shrimpend these
      implementsmay be used only by a sports fisherman.

                                             Yours very truly,

                                             WILL WIIBON
                                             AttorneyGeneralof Texas



                                             BY:~&          &
                                                HARRISTOLER
                                                Assistant

APPRovELk

0PnIIo!IC~EE:
W. V. Geppert,Chairman

BillAUen
Arthur.%ndlin
MarthaJoeStr6ud
Joe&Master

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