Case Information

*1 .

The Attorney General of Texas March 5, 1985 JIM MATTOX Attorney General

Suprsms OoutI BulldIng P. 0. Box 12548 ^{[51211752501]} At&In. TX. 78711-2548 Eonorable Fred J. Agnich Committee on Chairman Texas Eouse of Relmesentatives Enviwnmeatal Affairs Opinion No. JM-298 Re: Whether the state of Texas must sell commercial fishing Telex Slcm7C1307 P. 0. Box 2910 licenses to a person residing Tslscoplsr 51214759255 Austin, Texas 711769 in a state which does not offer

equivalent licenses to Texts residents 714 Jackson. Suite 700 Dallas. TX. 75202-4508 214i74228944 Dear Representattire Agnich:

You request an Attorney General's Opinion concerning sectioo 4624 Alberta Ave.. SW4 160 47.002 of the !?arks and Wildlife Code, which sets fees for a El Paso, TX. 79805-2793 SlY533.3484 commercial fisherman's license. It establishes different fees for Texae residents and nonresidents.

“391 Texas. Suite 700 Your letter provides the folloving information: .ouston. TX. 77002.3111 71312295aa6 The state of Arkansas restricts the sale of its commercial fishing licenses to an area in the Red i95 Broadway, Sulle 312 River here its south bank 1s the boundary line Lubbock, TX. 79401.3479 between Arkaasas aad Texas. In DO other area of 0Wl47-5238 the stnte are Texas residents alloved to fish

commercially. On the other hand, Texas allovs the 4309 N. Tenth. SuIta S sale of licenses to Arkansas residents to com- McAllm. TX. ml-1685 mercially fish ia any waters in our aFate. 512m2.4547

You ask two q,uestions: 290 MaIn Plaza, SUIW 4w

San Antonio. TX. 782052797 1. 1,s the state of Texas required to sell 512/2254191 reciprclcal licenses to a state that restricts our

Texas residents?

An Equal Opportunity/ 2. Could Texas put a similar restriction on

Afll”“atlve AcMon EmplOyOr the sale of commercial liceaaee to the state of Arkanecw?

Section 47.002 of the Parks and Wildlife Code provides an answer to your first qumition:

Eonorablc Fred J. Agnich - P.tlp 2 (JM-298)

(a) No person may engage la business as a cossaercial fishermn unless he has obtained a general commercial fisherman's license.

(b) The licenoe fee a general commercial fisherman's license is $15. Fifty cents of the fee may be retaine~i by the issuing agent, except an employee of the department.

(c) The liceam fee for a nonresident general commercial fishermu's license is the amount that a Texas resident :ls charged in the state in which nonresident 1s residing for a similar license or $25, whichever amouat is the larger. The department shall publish a list of nonresident fees according to the fees of each state and way alter the fee amomts in the list before September 1 of each year for the remainder of that license year. Fifty cent,3 of the fee may be retained by the issuing agent, except an employee of the department.

A "commercial fisherman" ^[183] defined as "a person who catches fish.

oysters, or other edible aquatic products from the water of this state for pay or for the purpose of sale. barter, or exchange." Parka and Wild. Code 547.001(l).

Sectioa 47.002 provides for the sale of nonresident general commercial fisherman's liceoaea for the fee described in subsection Cc). It does aot authorize the Parka aad Wildlife Department to refuse a commercial fishermen's license to nonresidents for the reason that their state diacrimi~rates against Texans in the issuance of c-rcial fishing licenses,

Your second question tsiaea an issue of federal constitutional law. Nonresidents are protected by the Privileges and Immunities Clause, article IV, section :! of the United States Conatitutionr which guarantees "the Citixena #J:E each State shall be entitled to all Privileges and Imnities of Citizens in the several States." In any state. aonreaidenta are to have the same privileges and immunities as residents of that state. Baldwin v. Fish and Game CocmPissioa of Hontaaa, 436 U.S. 371 (1978'); Hague v. CIO. 307 U.S. 496 (1939). This clause has been interpreted 'LO praveat a state from imposing unreason- able burdens on citizens oE other states in their pursuit of common callings within the state. Baldwin v. Fish and Game Commission of Montana, supra.

Discrimination between residents and aonresidents is permissible where there is a substantial reason for the difference of treatment. *3 Ronorable Fred J. Agaich - Pago 3 (Jn-298)

United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Com;i:il of the City of Camden, 104 S.Ct. 1020 (1984). The substantial &son must. however, show "that noncitizena constitute a peculiar source of the evil at which the q tatute is aimed." Toomer v. Witaell, 334 U.S. 385 (1948). Retaliation against another state's discriminatory legialatioa does aot provide the required justification. Austin v. Raw Eampahire. 420 U.S. 656, 668 (1975). Travis v. Yale uptown Manufacturing. Co., 252 U.S. 60. 82 (1920).

Commercial fishing has been recognized as an occupation protected by the Privileges aad Ixmanitiea Clause. Toomer v. Witaell. supra.

Cf. Baldwin v. Fish and Game Cosxaiaaioa of Montana, 436 U.S. 371 (1978) (recreational big-iame hunting in Montana is aot a right protected by Privileges and Immunities Clause). In Toomer v. Uitsell, the United States Supreme Court declared unconstitutional a South Carolina statute which vir,:ually excluded nonreaidenta from commercial shrimp fishing in South Ca:rolina waters. Toomer v. Witsell, supra, at 396-97. For each ahrimpb~,at owned by a nonresident. South Carolina required a license fee one-hundred times that paid by residents. Id.

at 389. The court found no reasonable relationship between rhe state's alleged purpose of conservation and this discriminatory There was no "reasonable relationship between the danger statute. represented by non-citizens, as a class, and the severe discrimination practiced upon them." Id. et 399. Nor did a state's interest in its wildlife justify its unroaaonable interference with a nonresident's right to pursue a livelihood in a state other than his own. Toomer v.

Witsell. 334 U.S. 385 .(19'18)., See also Dobard v. State, 233 S.W.2d 435 (Tex. 1950).

We conclude, in anawcr to your second question. that Texas may not discriminate against the residents of other states in the sale of commercial fishing licenses unless such discrimination is supported by a "substantial reason" as rtequired by the United States Supreme Court. Retaliation against Arkanass for apparent diacriminatioa against Texas residents does not constitute the requisite reason.

SUMMARY Section 47.0(12 of Parka and Wildlife Code provides for the sale of nonresident general commercial fisherman's licenses the fees set out in subaec!::lon (c). The Privileges and Immuaitiea Clauoe, article IV. section 2 of the United States C~oaatitution prohibits Texas from discriminating eSainat residents of other states in the sale of ct=rcial fishing licenses unless a substantial roeaon supports the discrimination. Retaliation agafnat another atate~ for apparent *4 Ronorable Fred J. Agnich - I?age 4 (JM-298)

discrimination a@nst Texas residents does not constitute required substantial reason. JIM MATTOX Attorney General of Texas TOM GREEN

First Assistant Attorney General

DAVID R. RICHARDS

Executive Assistant Attorney General

RICX GILPIN

Chairman, Opinion Committee

Prepared by Susan L. Garrhon &

Jack Carter

Assistant Attorneys General.

APPROVED:

OPINION COMMITTEE

Rick Gilpin.-Chairman

Jon Bible

Susan Garrison

Tony Guillory

Jim Moelliager

Jennifer Riggs

Nancy Sutton