                       October 6, 1989



Mr. Charles D. Travis          Opinion No.   JM-1106
Executive Director
Texas Parks and Wildlife       Re: Validity of a municipal
   Department                  ordinance prohibiting    the
4200 Smith School Road         towing or dragging of .nets
Austin, Texas   78744          near a bulkhead   (RQ-1734)

Dear Mr. Travis:

     The Village  of Tiki Island has adopted an ordinance
prohibiting the towing or dragging of nets of any size
behind boats in certain public waters that are within  the
corporate limits of the village.   You state, "It has been
suggested that this action by the Village of Tiki Island,
Texas is contrary to Chapter 77 of the Parks and Wildlife
Code" and ask for our opinion on the validity       of the
ordinance.  We assume that your concern focuses on section
77.041. Assuming that the ordinance was adopted in accor-
dance with law and that the waters that it designates   as
restricted are within the corporate    limits,1 we believe
that, on its face, this is a valid ordinance.

     You also state that the ordinance was adopted pursuant
to section  31.092 of the Parks and Wildlife    Code, which
reads in part as follows:

            (a) The governing body of an incorporated
        city or town, with respect to public water
        within its corporate   limits and all lakes
        owned by it, may designate by ordinance
        certain areas as bathing, fishing, swimming,
        or otherwise  restricted areas and may make



     1. We make this assumption because, while part of the
restricted area is identified as being within the corporate
limits of the village, part is identified as "any area
nearer than three hundred     (300) feet from any bulkhead
adjacent to any land within the corporate limits of the
Village."  Village  of Tiki Island, Ordinance    No. 4-89-l
(1989).




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Mr. Charles D. Travis - Page 2    (JM-1106)




        rules and    regulations   relating to   the
        operation and equipment of boats which    it
        deems necessary for the public safety.   The
        rules and regulations    shall be consistent
        with this chapter.

           .   .   .   .

           (d) A copy of all rules and regulations
        adopted under this section shall be summarily
        filed with the department.

Parks & Wild. Code 5 31.092.

     The ordinance    declares that    the towing of     nets
"threatens the safety of recreational and other users of the
waters within the corporate limits" and that the prohibition
is reasonably  "necessary to promote     safety within   such
waters."  of course, the reasonableness of an ordinance is a
question of fact, which we cannot resolve in the process   of
issuing an opinion. S e. e.a,, John v. State,     577 S.W.Zd
403 (Tex. Crim. App. 1z79); Citv f Cl e v._Lin            446
S.W.2d 377 (Tex. Civ. APP- - HousEon ';ist Dist.yC%,
writ); Citv of Cornus Christi v. Unitarian       Church,  4::
S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd
n.r.e.); Sitterle      Victoria Cold Storaae Co., 33 S.W.Zd
546 (Tex. Civ. Appy' - San Antonio 1930, writ dism'd).

     We find no conflict between the ordinance and the other
provisions of chapter 31. The chapter generally relates to
water safety, La,       identification   and registration    of
motorboats (subchapter B), required safety equipment      (sub-
chapter   C), prohibitions   on dangerous    boating  activity
(subchapter D), and enforcement and penalty provisions (sub-
chapter E).   We believe   that the ordinance    conforms,   at
least on its face, to section         31.092(a):   finding   it
necessary for the public safety, the governing body of an
incorporated town has enacted an ordinance, with respect to
public water within     its corporate    limits,   designating
certain areas as "otherwise restricted."

     Nor do we believe that the ordinance conflicts     with
section 77.041.     Chapter 77    generally  regulates   the
possession, catching, weighing and sale of shrimp, including
restrictions on the size of nets and the size of the mesh.
Section 77.041 provides     general authorization   to   use
equipment on licensed commercial shrimp boats, as follows:

        All shrimp trawls and fishing gear, except
        fishnets or seines, with which a boat having
        a commercial shrimp boat license issued under



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Mr. Charles D. Travis - Page 3    (JM-1106)




        this subchapter is equipped may. .be used B,D=
        le   the u   is otherwise nrohibited bv law .
        (z:hasis :zded.)

Parks & Wild. Code 0 77.041.

     Webster's New Collegiate Dictionary   defines  lqtrawl,"
when used as a noun, as "a large conical net dragged    along
the sea bottom in gathering fish or other marine life."

      While granting general authority to use trawls or nets
on licensed shrimp boats, the legislature     chose to except
use that is "otherwise prohibited by law." The legislature
could have excepted use that is otherwise prohibited       by
"this chapter," "this title," or "this code." See Citv of
Stamford v. Ballard 345 S.W.2d 596, 600 (Tex. Civ. App. -
Eastland 1960, no whit)    (legislature could have prohibited
other burdens rather than other "like burdens").     By using
the general term, *'law," the legislature clearly intended to
except use prohibited by any law, including a municipal
ordinance enacted under the authority granted      in section
31.092(a). &R Choice v. Citv of Dallas, 210 S.W. 753 (Tex.
Civ. App. - Amarillo   1919, no writ). On the basis of the
information   furnished us, the particular      ordinance   *
question is not in conflict with section 77.041 of the Parg
and Wildlife Code. We do not reach any constitutional issue
here.

                       SUMMARY
           The Village of Tiki Island is authorized
        to enact an ordinance prohibiting the towing
        of nets in certain areas of public water
        within the corporate limits of the village.




                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General




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Mr. Charles D. Travis - Page 4 (JM-1106)




RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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