*1 July 26, 1947

Ifon, John Ii, Miller Opinion Ho. V-314 District Attorney

36th Judicial District Re: Legality of the use Sinton, l!exas or possession of nets

in or on the waters of lfueces Bay in Nueces county for taking fish and shrimp.

Dear Sir:

Your request'for' an 0pinSon reads: "Your attentlen 1s Invited to Artgale 952L-10, Vernon's Annotated Penti Code, 1925, and your opiniea is requested as to whether or not the amme revives the provia- sions of Article 9443, PC, 1925, aa smended by Chapter 119, pege 269, Acts O;t the Regu- lar Session of the 4lst Legislature, which made It unlawful ii0 net in Huecea Bay." You have orally submitted another question which Is:

"Did the Act c? 1937 (Acts 45th Leg., ch. 182, p* 372*) rcepeal that part of Artl- CL3 941, Vernon's Penal Code, as amended in 1929, which made un1awfk.l the use or posses- sion of nets for taking fish and shrimp in lVuece8 Bay?"

Article 941, Vernonss Penal Code, as smended by Chapter 119, Acts 1929, 41st Legfslature, page 269, aentains seven sections, but only sections 1, la, and lo are pertinent to your questions. 8c%?tiW 1 ncke8 it unlawful for any person to place, set,uae or drsg any seine, net or other device for catching fish and shr%mp, other than the ordinary pole and line, casting rod and reel, artffielal bait> trot Ifnee or cast net or minnow seine 0r not fpore than twenty feet in length for catching bait, or have in hfs possesafon any seine, net or trawl without a permit issued by the Game, Fish *2 Hsno John Ii0 Miller, Page 2, V-314.

and Oyster Commissioner (now Game, Ffsh and Oyster Com- mission) or by his authorized deputy in or on any Of the waters of any of the bays, streams, bayous, or ca- nals of Orange, Jefferson, Harris, Brazorfa, Chambers and Galveston Counties, or in the tidal waters of many other specifically named or defined bodies of water, includfn$ Nueces Bay In Bueces County.

Sectfon la re'ads: "Provided that It shall be unlaw- f&I for any person to drag any seine, ox use any drsg seine, or shrimp trawl for catching fish or shrimpp or to take OF catch fish or shrfmp with any device ether than wfth the ordfnwy pole and line, casting rod, rod and reel* arti- ffcfal bait, trot line, set line, or cast net, or minnow seine of not more than twenty feet fn length for catch- ing bait, or to use a set net, trammel met ok strike net, the meshes of which shall not be less than one and one-half Inches from knot to knot, in any of the tidal bays

w, OF

waters of

Section 1 hereof." (Emphasis addedI Sectfon lc reads: "Provfded that it shall be unlaw- rul to attach to any set net. str& net or trammel net used In anm the w;?T gang cf the 'tidal baEp streams, bayous3 lakes, lagoons or inlets of this State, any cork lfne OF lead lfne of a siae greater than one-fourth inch in dia- QeterL"' (Emphasis addedI Section 1E prescribes a penalty for viola- tion of any of the provisions of this ArtLclea

In 1937, the Legislature enacted a statute *3 lion, John H, Miller, Peqe 3, V-314*

.(Acts 45th Leg., ch, 182, p* 372), which made it ualaw- ful for any $0XsOn to place, net, use, or have'ln pos- seasion or have on board boat, or on any vehicle, any se&are B net or trawl in 7 he tldsl waters oS liueces and Aramsa8~Countle8 named or deilned therein. It per- mltted the u8e of a cast net or minnow seine of not exceeding twenty Seet la length, or a licensed trawl, In any of the waters mentioned therein at any time for the purpose oftski b⁢ and made It 1awSuI to have 8 88lQe, net or bsali Qa bO8Pd any vessel vhen such ve8- 9f

seI Is in port or wlrlle enroute to or from the Gulf OS Mexico or other vatera where It 1s lawful to use or pos- sess such a seine, net or trawl. It also contains this provision:

"Provided It shall be lawSu1 to pos- 8888 Or us8 a i iC8nSed travl~or seine in any other nalt vatera or mews county not BEntiOlled in thl8 Act a8 closed." (&- phasls added).

Nueces Bay is within the term "salt waters OS Nueces Couaaty," and la "not mentioned in this Act aa clOse8 water80* Pherefore, the possession or u8e ef a llcensled trawl, net or seine for catching fish or ahrlmp In Aueces Bay was by this Act made lawful, and to that extent It modlSled or reperlea by lmplicatlon~that art eS Article 941 In conflict therewith, which made k un aw- f'ul, 8uch poseesslon or use of trawls, nets and seines ie fuecee Baya Hovever, the provision8 OS SectIons la and Ic OS Artfcle 941 were not repealed.

Artfcle 952L-10, Vernon'8 Penal Code, was

Sfrst enacted in 1932 (Acts 42nd Leg,, 3rd C. S., pq 92) and amended In 1939 (Acts 46th Legb, Spec. bW8, pv818, $bCa 1). This Article made it 1 strlke nets, gill net8, trammel net8 or 8 -%!#$%::I, a8 defined by the statutes, r0r the tsW;ng of fish an15 shrimp from certain named or defined bodies OS salt wa- tere in Cha8Ibers and GaIV88tOn Counties during the per- ust 15th and endlng May 15th OS each A iod bd‘ipIIIT "$ ArMa 8 9 1 as amended in 1929 abaolutelj pro- Ekd the uas Or*IWtS and trawl8 r0r’the taking of fish am4 mbdmp in ;anJ of these,saIt waters of Chamber8 and GaIveaten Counties at any time. Therefore, there IS an lxreoenollable conflict between these tW0 Stat- ute8, the 8rr8Ct or which 18 that Article 952L--30 nodl- Sfe8 or repeaI8 by Implication that part of Article 941 ,,.~ ., ): : .~

lion. Johm B. W115e3, Page 4, V-314.

.

lion0 John H. Hillsr, ?rge 5, V-314.

Yours very truly ATfOBWBY BHWRRAL OF TXXAU &A David Wuntah Assistant :