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                           THE         ATTORNEY     GENERAJ~
                                          OF !lYJcxAs
                                       AURTIN.     T-s           78711

                                                 January    10, 1974




             The Honorable     Clayton T. Garrison                   Opinion   No.   H-   206
             Executive   Director
             Texas Parks & Wildlife     Department                   Re:   Authority   of the Parks and
             John H. Reagan Building                                       Wildlife  Commission    to
             Austin,   Texas 78701                                         prohibit  seining in the Gulf
                                                                           of Mexico   more than one
             Dear   Mr.   Garrison:                                        mile from a pass

                    You have’advised     us:

                                  “Due to the recent flood conditions        in the San Jacinto
                           and Trinity  River    Basins,    an unusually   large amount of
                           fresh water is entering      the greater   Galveston    Bay complex.
                            This has resulted    in zero salinity   in much of the Bay area.
                           Many of the principal      salt water game fish species are not
                           able to adapt to this condition      and have migrated     into the
                           Gulf through Bolivar      Pass separating     Bolivar   Peninsula
                           from Galveston     Island.     These fish tend to congregate      in
                           large numbers     in a pocket eastward     from the North Jetty.
                           This permits    an abnormal    harvest   of these fish through
                           the use of seines and nets.       By authority   of Article    4045
                           Vernon’s   Civil Statutes and Article     941 Vernon!s     Penal
                           Code, an area one mile either       side of and extending      into
                           the Gulf of Mexico    adjacent  to and including    Bolivar    Pass
                           has been closed to seines and nets except for minnow seines
                           . . . . (I

                    You then ask:

                                   “Does the Parks and Wildlife   Department    have
                           authority   to close a portion of the Gulf of Mexico   adjacent
                           to Bolivar   Pass in Galveston   County to seines and nets in
                           addition to that portion now closed by Departmental       Order?       ”




                                                      p.   966
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                                                                                                                -.
The Honorable       Clayton   T.   Garrison,         page     2   (H-206)




      Article     4045,    Vernon’s    Texas        Civil    Statutes,      provides      in part:

                        “It shall be unlawful for any person at any time to
                place,    to set or drag any seine or net, or to carry on,
                over or into the waters hereinafter            referred     to, or to
                have in his possession        or to carry such seine or net by
                vehicle    or in any other way to any point or place within
                one mile of such waters,          or to use any other device or
                method for taking fish,        other than the ordinary         pole and
                line or cast-net      or minnow-seine        of not more than twenty
                feet in length for catching        bait, within the waters described
                in Article    941 of the Penal Code. . . . The Commissioner,
                when he has reason         to believe   it is best for the protection
                and increase      of fish life, or to prevent       their destruction    in
                the bays or parts thereof,          or such tidal water,       is hereby
                authorized     to close such waters against fishing with any
                 seine,   net, spear,     gig, light or other devices,         except
                with ahook and line or cast-net            or minnow-seine        of not
                 more than twenty feet in length.            Before    so closing any
                 such waters,      the Commissioner        shall give notice of his
                intention    to do so at least two weeks prior to such closing,
                 giving the reason why action is deemed necessary,                  and
                 which notice shall contain a designation             of the area which
                 it is proposed     to close,   a statement      that after the date indi-
                 cated in such notice it shall be unlawful to drag a seine or
                 set a net or use a gig or spear and light in taking fish from
                 such waters for the period which the Commissioner                   in said
                 notice shall declare       same to be closed.        . . . ” (emphasis
                 added)

      Article      941, Vernon’s   Penal Code               - Auxiliary     Laws       (formerly     Vernon’s
Texas Penal       Code),  provides   in part:

                       “It shallbe unlawful for any person to place,    set, use
                or drag any seine,    net or other device for catching fish
                and shrimp other than the ordinary      pole and line, casting
                rod and reel, artificial   bait, trot line, set line, or cast net




                                                   p. 967
The Honorable      Clayton      T.   Garrison,        page   3    (H-206)




               or minnow seine of not more than twenty feet in length
               for catching bait, or have in his possession        any seine,
               net or trawl without a permit issued by the Game,           Fish
               and Oyster   Commissioners      or by his authorized     deputy
               in or on any of the waters    of any of the bays, streams,
               bayous or canals of . . . Galveston       Count[y],    . . . or
               in or on the waters within one mile of the passes herein
               mentioned,    connecting  the bays and tidal waters      of this
               State with the Gulf of Mexico     or in or on or within a mile
                of any other such passes,    or within the waters     of any
               pass, stream    or canal leading from one body of Texas
               bay or coastal waters into another body of such waters:
               . . . . ” (emphasis  added)

       In the absence        of conflicting      federal     legislation,   it is within   the police
power of the State to promulgate          regulations   to protect    its marine     life re-
sources    within its territorial    waters,    Askew v. American          Waterways       Opera-
tors,  Inc.,   411 U.S. 325 (1973), which in the case of Texas extend three
marine    leagues seaward,        Submerged     Lands Act, 43 U.S. C. $1301 et.                 ;
U.S.   v. Louisiana,      363 U.S.    1 (1960); Employers      Mutual Casualty       Co. v.
Samuels,     407 S. W. 2d 839 (Tex. Civ.App.,          San Antonio,      writ ref’d.     n. r. e.);
Attorney    Gene ml Opinion M-87 (1967).           Nonetheless,     the Parks and Wildlife
Department      possesses    only such powers       as are delegated      to it expressly
and impliedly     by the Legislature.       State v. Jackson,      376 S. W. 2d 341 (Tex.
1964).

        The authority     given
                             the Commission    to regulate  seining and netting
under Article   4045, V. T. C. S., is limited  to those areas described    in Article
941 of the Penal Code - Auxiliary    Laws.    Thus, Article   4045 confers   no
authority  to regulate seining more than a mile seaward       of a pass.

        The Uniform    Wildlife   Regulatory    Act, Article    978j-1, Vernon’s    Texas
Penal Code - Auxiliary        Laws,   gives the Parks and Wildlife       Commission
broad regulatory     powers;    however,    the Act does not apply to Galveston       County.
(Acts1973,    63rd Leg.,   ch. 220, p. 515). As the boundary of Galveston            County
extends    three marine leagues      seaward,    [Article   1592a, Vernon’s    Texas Civil
Statutes;   Attorney  General    Opinion M-87(1967)       1, the Uniform   Wildlife  Regu-
1atoryAct provides     no autho,rity to close an area more than one mile seaward
of Bolivar    Pass.




                                                 p.   968
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                                                                                              ,_-\
The Honorable     Clayton   T.   Garrison,   page 4     (H-206)




       The Commission      is given general   jurisdiction   over the marine     life of
the State by Article   4026, Vernon’s    Texas Civil Statutes,      but that jurisdiction
may be exercised     only under the authority     vested in the Commission       by law.
As we have found no statute permitting       the prohibition    of seining or netting
in the.GuLf of Mexico    except within one mile of a pass, it is our opinion that
the Commission     may not close an area more than one mile gulfward             of Bolivar
Pass.

                                        SUMMARY

                     The Parks and Wildlife  Commission    may prohibit   the
              use of seines and nets in the Gulf of Mexico  only in those
              areas which are within one mile of a pass connecting     bays
              and tidal waters with the Gulf of Mexico.

                                                        Very      truly   yours,




                                                        Attorney      General      of Texas




DAVID M. KENDALL,           Chairman
Opinion Committee




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