Case Information

*1 January 25, 1972 Cross Opinion No. M-1045

Executive Director

Texas Parks h Wildlife Dept. ne: Authority of Parks & John H. Reagan Building Wildlife Department Austin, Texas 78701 under the General.Law

Statutes or the Uniform Wildlife Regulatory Act to place special restric- tions on removal of fish from public waters in bass tournaments, and Dear Mr. Cross: related questions

In your opinion request to this office you ask the following questions:

1. Does the Parks and Wildlife Department have authority under the General Game Law Statutes or under the Uniform Wildlife Regulatory Act (Art. 978j, V.P,C,) to place special restrictions on the removal of fish from public waters by participants in tournaments?

2. If your answer to question one is affirmative, under what circumstances or conditions would regu- lation be legally authorized?

3. Does a bass tournament constitute a lottery when prizes are given to successful fisherman? 4. When a tournament is conducted on a lake pre- viously stocked with bass at State expense, can the Department impose restrictions on participants in tournaments which would not otherwise apply to single fishermen?

The Legislature has granted the Parks and Wildlife Commission authority to issue proclamations, rules or regulations to control the means and method and place and manner in which wildlife resources may be lawfully taken, and to issue rules setting forth the most equitable and *2 Honorable James U. Cross, page 2

reasonable privileges in the taking of,such wildlife. ~See Article 9783-1, Sections 2, 4 and 5 Vernon's Penal Code.

Subject to the restrictions placed upon the commis- sion by the above statutes, the commission has authority to control the taking of fish from public waters. We are unanle to express an opinion as to whether a special re- striction on the removal of fish from public waters by participants in tournaments would be constitutional as we do not have sufficient facts to decide this issue.

However, we would express serious doubts about the validity of any rule or proclamation that arbitrarily imposes re- strictions on participants in bass tournaments but would not similarily restrict single fishermen.

It is the opinion of this office that a bass tourna- ment is not a lottery even though prizes are given to successful fishermen. One of tne elements needed to con- stitute a lottery is the award or distribution of the prize by chance. City of Wink v. Griffith Amusement Company, 100 S.W.Zd 6Y5 (; Pex.Sup. 1936); Smith v. State, 127 zd 297 (Tex.Crim. 193Y); &ice v. SG ste, 156 Tex.Crim. ?;:I 242 S.w.Zd 433 (1951);- State v. Socony Mobil Oil Company, 386 S.W.Zd 169 (Tex.Civ.App. 1964, err. ref., n.r.e.). The catching of involves more skill than luck.

SUMMARY Under Art. 978j-1, V,P,C,, the Parks and Wildlife Commission and Department have authority to control the taking of fish from public waters. As to whether certain proposed special restrictions are valid we can not say because they have not been presented to us.

Prepared by Dunklin Sullivan

Assistant Attorney General

I . Cross, page 3

APPROVED:

OPINION COMMITTEE

Kerns Taylor, Chairman

W. E. Allen, Co-Chairman

non Darden

Jim Swearingen

Linward Shivers

Glenn Brown

SAM McUANIEL

Staff Legal Assistant

ALFRED WALKER

Executive Assistant

NOLA WHITE

First Assistant