Case Information

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Game,.Fish and Oyster Commission

Austin, Texas

Gentlemen: Attention: .Honorable A. E. Wood,

C!haiI?W.U. Opinion No. 0-2209-A - Supplementa& Re: Interpretation of Articles 4053 ma,4053d relative~to 'the sale of'mudshell.

Pursuant to the request contaiued In your letter of May 3, 1940, this will supplement Opinion No. O-2209 relatlve:to the authority of your Com- mission to contract for the sale of mudshell belonging to the State of-Texas. Your queatiotis are as follows:

"1. Before a permit can be iss~@d under~Ax%icle 4053, is the Game Department required to @ve the approval of the Governor IV any other public official before such permit is effective?

“2. C&n an outright sale of materials be ma&e by the .bommis-

don, with the approval of the Governor under Article 4053d?

"3. ~Xn the event a sale of all of the materials in any given area is tide and whol&y or partially paid for, with the approval of the Governor under Art. 4053d, then does the Gamy, Fish and Oyster Commission have authority to issue a permit to another shell operator to 'go into the same territary and take therefrom the materials mentioned in said article of the statute?

"4. Are sales.made under Art. 4053d, with the approval of

the Governor; valid and binding?

"5. If such 88186 are valid and,binding, then would the pur- chaser have the right to assign the contract or transfer the materl- als so. purch+sed to some other person or corporation?" We believe that if we can clarify our holding in Opinion No. o-2209, the enswers to each of your questions will suggest themselves. In that opin- ion, we traced the'legislative history~of Articles 4053 and 4053a and found that they were originally part and parcel of the same bill. They muSt,be con- strued together.

Game, Fish and Oyster Commission, Page 2 (0-2209-A)

Article 4053 (as originally enacted, Section 5 of Chapter Acts 1911) provides that "Anyone desiring to purchase . . . mudshell" is directed to make written application to the Gams, Fish, and Oyster Conunission. If the Costnlssion finds in exercising its admlnistrative judgment that the operation will not injuriously affect the location and the marine life therein, a permit may be granted to operate in the territory described in the application.

Article 4053, then, from the time of its original enactment until the present time has contemplated the purchase of mudshell and other materials, and as a condition precedent to the sale provided for in Article 4053d (as originally enacted, Sec. 6 of Chapten, Acts 1911) the purchaser must secure a permit from the Commission which will constitute an administrative determina- tion that the taking of the material will not "dsmage or injuriously affect any oysters, oyster beds, fish inhabiting waters thereof or adjacent thereto“, or will not "damage or injuriously affect any island, reef, bar, channel, river, creek or bayou used for frequent or occasional navigation, nor change or other- wise Injuriously affect any current that would affect navigation".

With respect to these flr@ngs, the Governor of the State has no concern. Instead, the Legislature has provided a specialized, highly trained Instrumentality, the Game, Fish and Oyster Commission, to cope with the techni- cal problems Involved. Up until this point the exercise of administrative discretion for the purpose of safeguarding fish and other marine life and their places of habitation is a matter wholly within the exclusive province of the Game, Fish and Oyster Commission. The Legislature so provided. But in supply- ing the terms and conditions of sale, the concomitant of the preliminary steps of making an application and securing a permit, the Legislature felt that the chief executive officer of the State, the Governor, should have a voice. HiB authority is limited to determining these matters of public policy.

Underlying the whole transaction, however, is the policy manifested by the Legislature, that,

"No special privilege or exc&dve right shall be granted to any person, association of persons, corporate or otherwise, to take or carry away any of such products of sny territory or to otherwise operate in or upon sny Island, reef, bay, lake, river, creek, or bayou included in this chapter."

We feel that the foregoing discussion will answer Questions 1, 2, and 4 in your letter.

Question 3 is answered in Opinion No. O-2209, but for the purpose of clarity we add that no valid sale of all of any material in a given area may be made, if the practical effect of the transaction will be to exclude other operators from taking or carrying away any of such product from any territory, reef, bay, lake, river, creek or bayou. The undoubted intent of the Legislature was to protect the public from the monopoly of any operator In any given territory.

Game, Fish and Oyster Commissiou, Page 3 (0-2209-A)

In auswer to Question it is the opinion of this department, and you are respectfully advised that a contract of sale, an important ingredient of which Is the administrative determination of the Commission of non-in&y to fish and location, evidenced in a permit, is not assignable. The statute does not concern Itself, however, with the transfer or sale of material which has been removed by au operator,

Verytrulyyours ATl!ORREXGRiERALOFTEiAS APPROVED WAY 21, 1940 /s/ Gerald C. Mann

By /s/Walter R. Koch Walter R. Koch ATl!oRNRY GENERALOFTKKAS

Assistant By /s/ James D. Smullen James D. Smullen JDs:Rs:ul

APPROVED OPIWIOR CoMMlTpE BY /s/ BWR CHAIRMAN