Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable Campbell K. Ford County Attorney San Baba County San Baba, Texas
Dear Sirs
Opinion No. 0-3888
Re: Is it lawful to use seines or nets with meshes of not less than one inch square in taking or catching suckers, bur- falo, corp, shad, or gar in the fresh waters of San Baba County, Texas?
We have considered carefully your request for our opinion on questions contained in your letter of August 22, 1941. We quote your letter:
"The question has arisen in this county as to whether or not it is lawful to use seines or nets with meshes of not less than one inch square in taking or catching suckers, buffalo, carp, shad or gar in the fresh waters of San Baba County, Texas.
"Under Art. 9521-1, Sec. 1, P. C., it is a violation to fish for, take, or attempting to catch any fish in any of the public waters or tributaries of such waters in various counties, including, San Baba County, by any method other than by ordinary pole and line, set line or throw line equipped with more than two hooks, except in the Colorado River; and exempting artificial lures. This article does not contain a repealing clause and is as amended in and by Acts 1933, 43rd Leg. Spec. L., p. 7, ch. 6.
*2
Honorable Campbell K. Ford, Page 2
"However under article 9521-7, sec. 1, any and all persons shall be permitted to take or catch suckers, buffalo, carp, shad or gar during the months of July, August, September and October in any of the fresh vaters of Bosque, etc., including San Saba County, with a seine or net, the meshes of which shall be not less than one inch square. This article does not contain a repealing clause, and was amended so as to leave out Comanche County by the last legislature. "The: in Article 978 L, Sec. 2, it is unlawful to take from the fresh vaters of Ban Saba County any bass, crappie, perch, catfish, or any other fish taken from the fresh vaters in various counties including Sém Saba County, other than by ordinary pole and line or throw line equipped with not more than two hooks, exempting artificial lure. This article does contain a repealing clause, and was passed by Acts 1933, 43rd Leg., Spec. L., p. 77, ch. 61. "The second question in connection with the game laws is whether or not it is lawful to sell, offer to sell, have for sale, or catch for sale any bass, crappie, perch, catfish in the County of San Saba. "Article 952 I-1, sec. 2, reads as follows: "It shall be unlawful in the counties of San Saba, etc., to sell, offer for sale, or have in possession for the purpose of sale any black bass, crappie, catfish, or sun fish, commonly called perch. "Under Article 978 L, Sec. 1, which reads as follows: "It shall be unlawful for any person, firm, or corporation or their agent, to barter or sell or offer for barter or sale, or to buy any bass, crappie, perch, catfish, or any other fish taken from the fresh vaters in the counties of San Saba,
*3 Honorable Campbell K. Ford, Page 3
Gillespie, Kerr, Comal, Llano, Mason, Kimble, Edwards, Button and Real.
"This latter article contains a repealing clause. Question is whether or not out of state fish or fish caught in waters other than in the Counties above enumerated can be lavfully sold in San Saba County."
(The article referred to in the third paragraph of your letter is Article 952L-7, instead of Article 972L-7, and we have taken liberty of correcting the typographical error.)
We cannot agree with your interpretation of the meaning of Article 978L, Section 2. The first two sections of this article are as follows:
"See. 1. It shall be unlawful for any person, firm, or corporation or their agent, to barter or sell or offer for barter or sale, or to buy any base, crappie, perch, catfish, or any other fish taken from the fresh waters in the Counties of San Saba, Gillespie, Kerr, Comal, Llano, Mason, Kimble, Edwards, Button and Real.
"See. 2. It shall be unlawful for any person to take: from the fresh waters of the above named counties any of the fish above enumerated by any means or device other than by ordinary pole and line or throw line equipped with not more than two hooks, provided, however, that it shall be lavful to fish with a cowagiae, or other artificial bait equipped with more than two hooks, and provided further that a person may use a minnow seine which is not more than twenty(20) feet in length for the purpose of catching minnows for bait. No person shall use the minnow seine herein permitted for the purpose of taking any fish other than minnows for bait."
Thus it will be seen that the prohibitions contained in Section 2 of Article 978L (excepting, of course, that referring to the use of minnow seines) do not apply to any fish except base, crappie, perch and catfish, those being the only fish "above enumerated." (Webster's New International Dictionary).
*4 Honorable Campbell K. Ford, Page 4
This leaves us the problem of construing Article 9521-7, Section 1 in connection with Article 9521-2, Section 1, and also Article 955, Penal Code, 1925, which provides in part as follows:
"*** . No person shall take or catch any fish in the fresh water rivers, creeks, lakes, bayons, pools or lagoons in the Counties above named by any other means than by ordinary hook and line or trot line or artificial bait, and no person shall place in the fresh water rivers, creeks, lakes, bayons, pools or lagoons of the counties above mentioned, any seine, net or other device, or trap for taking or catching fish; provided, however, that persons may use a minnow seine which is not more than twenty feet in length for the purpose of catching minnows for bait; or a net, the meshes of which are not less than three inches for the purpose of catching carp and suckers in the Colorado River. * * ."
The above quoted portion of Article 955 is found in that Act as codified in 1925, and has been retained since.
Article 9521-2, Section 1, was first enacted in 1929 (Acts 1929, 41st Leg., Reg. 508., p. 442, ch. 202), and had been amended five (5) times by the end of February, 1933. As amended the next to the last time (Acts 1931, 42nd Leg., 1st C. 8., p. 5, ch. 3), it reads "not more than two hooks" (Underscoring ours). As amended the last time (Spec. L. of Tex., 1933, 43rd Leg., Reg. 508., p. 7, ch. 6), it reads "more than two hooks," the word "not" before "more" being omitted. There is nothing in the caption of this last mandatory act to indicate that such an omission was intended by the Legislature. In fact, the amendment of 1933, so written, does not make sense as a conservation law, and conservation is the evident sole purpose of it. In such case, the omitted word "not" should be supplied, to give effect to the plain intent of the Legislature. 39 Texas Jurisprudence 185; 3 A.L.R. 404, note; Gustavel v. State, 153 Ind. 613, 54 M.E. 123.
Article 9521-7, Section 1, was first enacted in 1931 (Spec. L. of Texas, 1931, 42nd Leg., Reg. 508., p. 194, ch. 90).
*5 Honorable Campbell K. Ford, Page 5
Hence it will be seen that it is a later expression of the legislative will than either Article 952L-1, Section 1, or Article 955. As such, it would be controlling in the matters to which it relates, even if it had no repealing clause (which it has). 39 Texas Jurisprudence 253-257; Bishop vs. Houston Independent School List., 29 S. W. (2d) 312, 35 S. W. (2d) 465; Griffin vs. City of Waxahachie, 276 S. W. 201; Frost vs. Wenie, 157 U. S. 58. It should be noted, however, that this article applies only during the months of July, August, September and October, and only to suckers, buffalo, carp, shad and gar.
We see no conflict between Article 952L-1, Section 2, and Article 978L, Section 1. The first prohibits the sale, offering for sale, etc., in San Babe County, of the fish named no matter where caught. The second prohibits the barter, sale, etc., in San Babe or any other county, of any fish taken from the fresh waters in any of the named counties. The fine for violation of the first is 50.00; for violation of the second, 100.00.
It is our opinion that the use of seines or nets with meshes of not less than one inch square in taking suckers, buffalo, carp, shad or gar in the fresh waters of San Babe County during the months of July, August, September and October is lawful, and that at all other times it is unlawful.
We are further of the opinion that the sale of black bass, crappie, catfish or sunfish ("commonly called perch") in San Babe County is unlawful, no matter where such fish may have been caught.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By
W. R. Allen
Assistant
WRAI RS
APPROVEO OPINION COMMITTEE BY QUAR
CHAIRMAN