Case Information
*1 545 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Ronorable A. C. %nborn
crL%Inal District Attorney
Rarris County
Eouston 2, Texas
Gear Sir: Opinion No. O-6525
Re:
' Tour request for 'en=;+)
reads in part, 3s follows:
y thi G~overl nor anenaing Ii0 er 11, Acts nonresident nt cozkieroi31 of the 46th La
ses for 3ame. licenses to to nonresident st 31st of your opinion 3s ct cencels 311 licenses ued to nonresident ng the above inquiry as it pertains to cm131 fisherman*3 license, ?Ve invite ction 1 of House Dill 683, Chapter 11, xth LeGisletuce, appenring 3s Article section read- nnoteted Pen31 Code. said .%ec. 1. A *nonresident comercial fisher-
man* for the purpose of this Act is hereby Gefined 3s folloV~s:
"'Any person v&o is a citizen of any other stete, or any person who has not contlnuslly been *2 flonorable A. C, Nlnborn, Pag3 2
a bone fide resident of thia state for a period of tdme more than twelve (12) months, end who takes, catches, or assists in taking or cotching, fish or shrimp or oysters or any other edible aquatic life from the tidal sslt waters of this State for pay or for the purpose ofsale, b3rter, or excb3.npe,'n
Section 1 of House Bill No. 211,'Aots of the Forty- 3bt.h Legislature, in emending the above quoted Artiole reads 88 follows:
Wection 1. A 'Non resident Comnerciel Fisher- menf,for the purpose or this Act is hereby defined as follorvs:
*'Any person who is 3 citizen -of eny State, or ans DCrUOn viho h3s not continually been 3 bona fide "tihabitant of this state for 3 bsriod of t&e more than Welvs (12) : nonths, the word person shsll Include partnerships, associati ions 3ncicorpor3tions U&o have not continually had 3 bona fide place of- business in this state for a period of ti1 116 more than twelve (12) months, and who tekes, assists iu taking or catching, fish or shrimp or oysters, or eny other edible aquatic life from the tidsl salt waters of this state for pay or forthe purpose of sale, bertor or exchanee+(" (Emphasis added)
A comparison of the above sections discloses that the amending legislation functions only to broaden the scope of those persons required to hold 3 nonresident co~mmeroiel~ fisherman's license. This view is supported in that the Two ‘-. ” hundred Dollar (+200.00) iee for such licenses remains nn- ch3ng3a. : i
Therefore, it is our opinion that House Bill No. 211, Aots of the Fortg-ninth Legislature doea not canoe1 said licenses and those fishermen operstinp, thereunder may continue until AuGust 91, 1945, the normal date of expiration.
)n determining your inquiry 3s to whether Seotion 4 of House Dill Xo, 211, Aots of the Forty-ninth Legislature, canoels all prior licenses issued on nonresident cdnucercial fishermen's boata, we call to your ettention that prior to ,i< .) _,_ c _.__.. -...
JJJnorable A. C, Winborn, Pege 3 passage of the above Act, the law contained no speoific pro- vision pertaining to the licensing of nonresident commercial fishing boots. Resident and nonresident oo,amercial fisher- can both receiving tholr boat llcenoea by virtue of Article 9943, Section 3, Subsection 7, V.A.P.C., sa%a subsection reading as follows:
"Fish Boat License; for boats equipped with e motor of any kind or with sells, fee Three Dol- lers‘($3).n
Seotions 2 and 4 of Eouse Bill no. 211, Acts of the Forty-ninth Legislnture, have made specific provisions for then licensing of nonresident commercial fishing boats; said sections reodlng es follov~s:
Sea. 2. A *IJonresid&t Commercial Fishing Boat' for the purposea of this Act is Imreby de- fined as follows:
"'Any boat or vessel, which Is reglstered~in any other State, or which hasnot continually been registered in this State f6r a period of time more than twelve (12) months, or which is not owned by any person,.partnership, association of persons or corporation which has h8d e bona fide place of business in this State for [3] period of time more than twelve (12) months, end which is used for,the' purpose of tekingj or assisting in taking or catch- ing, fish, shrimp, oysters or any other edible aquatic life from the tidal salt waters of this Steto for pay or for the purpose of sale, barter or exchange."
"Sec. 4. License for Nonrealdent Commercial Fishing Peak required;- amount of fee. Before any *Nonresident Commercial Fishing Boat' shall be used for the purpose of taking or assisting in taking or catching, fish, shrimp, oysters or any other edible aquatic life from the tidal salt waters of this State for pay or for the purpose of sale, barter or 'exchan.Se, 3 license to be knovm es 'lionresident Co-mmeroiel Fishing Poet License', shall first be procured from the Came, Fish 3nd Oyster Coa31aslon of Texas, or one of its author- ized agents, privileging them.90 to do. *4 Honorable A. C. Sinborn, Page 4 ‘. .,.
.I._. :
“The fee ‘for a Nonresident Coznmercial Fishing Boa’t License shall be Two Thousand Five Bundred ($2500.00) Dollars.”
For a oonslderation of the constitutionality of : ., the above sections of House Bill No. 211, Aots of the Porty- ninth Le&slature, rve quote from the following authorities: ..*.
Voluma 11, Seotion 34, Ruling Case Law, page 1046, reading, in part, as follows:
“By reason of, the fact that title to fish and Earno within the boundaries of a state is vest- ed in the ~onle of the state in their sovoreion capacity, ihe-Legislature bas greater pov:er ov& such property than it has over almost any other conznodity, and in order to preserve such property to the people of the state, the &~vnakin& asselrl- bly may cneot that only citizens of the state shall take fish from the weters v:lthin its jurisdiotion . Likewise, the state ( having pov;er to “. exclude nonresidents from fishing In the state, may grant them the privilec,e upon conditions &if- ferent from those it imposes on its residents as, for example requiri~ng a larger boat license fee.” (Emphasis added)
On this point see McCready v. Va., 94 U. S. Tieports 395; Qroer v. Bonn., 161 I?. 3. Reports 519; People v. Setun- 126 N. Vi, 844, 161 &?itih. 624. “ky,
Bearing in mind that the state through its sovereign Foviers may oonstitutional.ly exclude nonresidents altagether from its territorial waters,.,we invite your attention to Vol- . Rae 33, Section 21 of American Jurisprudence, pas!o 342, read-- in&, In pert, es, follows:
“Sec. 21. The oonstitutional inhibition as to impairment of .the obligation of’ aontracts does not extend to licenses. A license itself is not a oontract between ,the sovereignty and the licensee, and is not property in ‘any constitutional sense. It does not oonfer a vested, permanent or absolute right, but only a personal privilege to be exar- cised under existing restrictions and such as may I ,:: Honorable A. C. Wnborn, Pace 5
thereafter be reasonably imposed. Free latitude is reserved by the povernmentol authority to im- pose new or additional burdens on the licensee or to revoke the license. Moreover, this is I& pen- era1 rule notwithstanding, the expondituro of money by a licensee in relianoo upon the license. ., . a" : _ . . IDnphasis added) .On this point see State ex rel Ohsnan Ez Sons Co.,
: ‘; Ino,, V, Starkweather, 7 N. X. 26 747; Olson et al. v. State Conservation Commission, 293 N. %. 262, 255 ':!is; 473.
Thus it is seen that the state, after choosing to crant liccnsas to nonresidents, mey impose nevi or additional burdens upon these liaensoas, or may revo!ce ssid licenses altogether, without abridging the obligations of a contraat,
This being true, Article 4, Seotion 2, of the Fed- eral Constitution, entitled the nDrivileges and &munitios*~ clause, is the remaining fsctor to be met in our determina- tion of the effect of House l3111No. 211, Acts of tho Forty- ninth Legislature, as pertains to nonresident co.mneroi3l fishermen's boat lioonsos. In this oonnection, we direct your attention to State v. Ashman, 135 S. Y. 325; 123 Term. 654, a case which contains a good statement of tha .majority rule in the United States. Said statement reads as follows:
"The rights, privileges, and inmunities which are secured by this clause to the ~inhabltants of the several states do not include 8ny riflhts in the, property of the several statesheld in trust for their own inhabitants, and laws which prohibit them in whole or in part from participating in the benefits. of that property do not deprive-them of any constitutional rights. The majority of the states have enaoted laws prohibiting or limiting the rights of nonresidents to take game or fish within. their respective .boundaries, and, upon the prinqiples above stated, thia legislation has been Invariably upheld by all the oourts."
In the light of the above oited suthorities, it is the opinion of this department that Section 4 of House Bill no. 211, Acts of tho Forty-ninth ~JeGiSIStUro,
cancels all _ . [1] i i . : *6 550 ~onoradle A. C. i&born,‘Page 6 .“::‘,::“
’ exfsting licenses issued on nonresfdent comerolal rishing boats; the bill having become effeotive as of April 2, 1945, .- by passing v;ith the required number of votes In eaoh house of th.e Legislature and sipned by the Governor. . . . .
..I Yours vory truly : ATTORQq GENmL OF TEXLS
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Benjamin xoodall Assistant :~. BW:mp
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