June 14, 1951.

Hon. Ramle H. Griff’la
Crlmlnal Dlstrlct Attorney
Jefferson County
Beaumont, Texas        Oplnlon Ro. v-1191
                         Be; Legality of fishing with
                             seines or nets wlthla
                             dne mile of the jetty
Dear Sir;                    at Sablae Pass, Texas.
          Your recent request for an opi~idn ask8 whether
Article 941, V.P.C., prohibiting the use o? certain 1arSe
seines, net@, and other devices for catching fish Itor
on Sablne Pass or the waters within one mile thereof,
applies to the waters within one mile from’any polnt on
the Sablne Jetty. Your question arises from the fact
that applloatlonof Artlole 941 to the jetties at San
Lulo Pass commonly known a8 Galveston Pass, has been
question&, and, the oondltloas’therebeing similar to
those at Sabine Pas8, you desire  a clarliioatiodan to
applioationof the statutes.
            Spe~lfloallgyou ask two questions,whloh are:
          (1) Does House Bill 952, Speolal Laws, 46th
Leg., R.S.  1939, oh. 84, p. 839, modify Artlole 941,
V.P.C.* and  govern the situation at Sablne Pas80

          (2) Xi not, Is the prohlblted area under Ar-
tlole 441, V.P.C., to be measured from any point on
Sablne ‘Jetty7

          Raoh question depends on certain faotual mat-
ter which has been furnlohed by you and by personnel o?
the (tame,Fl8h and Oyster Coana~ssion, the oWreOtneE8
of which wB shall assume for purposes of this OplnlOn.
            Artlole 941, V.P.C., provides:
                                                          P

                                                              . .




Hon. Raw&e H. Griffin, Page 2,   (V-1191)


            “It shall be unlawful for,any person
    to place, aet. use or drag any seine, net
    or other device for catching fish d h
    other than the ordinary Dole and IEe?&%
    lng rod and reel, artlflklal bait, trot line,
    set line, 0~ cast net or minnow aelne of not
    more than twenty feet la length for catching
    bait, or have in his possession any seine,
    net or trawl without a permit Issued
    Game, Plsh and Oyster Conrmlssloners
    misslog     OP by his authorized deputy . . .
    within or on the waters of . . . Sablne Pass,
               from Sablne Lake to the Gulf of Mex-
    ;ggy an Luls Pass, leading from Galveston
    We& Say to the Gulf of Mexico: . . . or in
    or on the w&&s within one mlie of the p&es
    herein mentioned, connecting th b          d
    tidal waters of this State wltheth?&?        of
    tdexlooor in qr on or within a mile of any
    other such pa&ses, or within the waters of
    any pass, stream or canal leading from one
    body of Texas bay or coastal waters Into an-
    other body of such waters; q . .” (Emphasis
    added throughout.)
          House ~111 952, Special Laws, 46th Leg., R.S.
1939, ch. 84, P. 839, provides:
          “Section I. -It ~shall-beunlawfulfor
     any person to use, operate, sail, anchor,
     tie, or moor to the bank any boat, sailboat,
     motorboat, skiff, barge, raft, or other
     floating devioe, or to place any post, pll-
     lng, obstruction,wire, rope, cable, net
Hon. Ramie I?.Griffin, Page 3,   (V-1191)


          As to your first question, obviously the ap-
plication of House Bill 952 to any situationdepends
on whether the Game, Fish and Oyster Commissionhas
functioned or Is functioning In Improving the pass con-
cerned. You have advised that the Commissiondoes not
so function at Sablne Pass or Sablne Jetty. Such be-
ing true, Rouse Bill 952 has no application.
          The anawer to your second question depends
on the extent to which Sablne Jetty and the waters
adjacent thereto constitutea part of Sablne Pass and
the correct determinationof the points from which to
measure the prohibited area.
          As we understand the factual situation,the
Sablne Jetty was formed by the erection of two parallel
walls or breakwatersextending some three miles out ln-
to the Gulf from each side of the natural mouth of Sablne
Pass. It, In effect, extends the pass the length of the
jetty Into the Gulf.
          We are further advised that fish tend to ap-
proach the pass for entrance therein from the sides of
the jetty, and, upon meeting the obstruction,tend to
turn and congregate in one or more spots on the outer
side of the jetty where they become peculiarly vulner-
able to netting and seining at the location of such
"traps."
          If "Sablne Pass.,"referred to In Artidle.941,
does not Include the artlflclallyextended channel, the
jetty may be Ignored in determining the prohibited area.
If It includes the extension, the question arises as to
what area in addition to the new channel is included In
the prohibition.
          These questions may be determined by reference
to Gibson v. Sterrett, 144 S.W. 1189 (Tex. Clv. App.
         d Gavlna v. State, 65 Tex. Grim. 572, 145 S.W.
$$!i$g).?                  case It was urged that a
        as used in Am      941, was a restricted area
lylng'lmmedlatelybetween the islands forming the strait
entering Corpus Christ1 Ray. However, the Court said:
          "The evidence shows clearly that the
     water from and to the Gulf flows through
     a defined channel extending from the strait
     between the Islands to Corpus Christ1 Ray;
420
      Hon. Rsmle H. Griffin, Page 4,   (V-1191)


          and It Is therefore as much a part of the
          pass leading from such coast water to the
          Gulf as the strait Itself. The construc-
          tion of the word 'pass' insisted on by ap-
          pellant would defeat the evident purpose
          of the statute. The purpose the Legisla-
          ture had In view was to enable fish to
          have free access to and from the coast
          waters, and if they are allowed to be
          interceptedin or near the channel afore-
          said th purpose would be defeated. In
          arrivlni at the sense of the Legislature
          In the use of the term 'all passes', the
          purpose It.had in view must be consulted."
      Similarly, the Court In the Gavlna case said:
                "      the pass intended by the legis-
           lative'act'wascertainly the entire length
           of the channel from the bay to the gulf.
           About this I think there can be no question.
           This question was recently passed on ad-
           versely to appellant'scontention in the
           case gf Gibson v. Sterrett, 144 S.W. 1189
           . . .
                These cases clearly Indicate that the Leglsla-
      ture Intended to protect the free passage of the fish In
      or'near the channel. It recognized the natural prbpen-
      sltles of the fish and endeavored to protect themeat
      points at which they might be Interceptedwhen seeking
      entrance to the pass.
                The natural approach to the pass Is apparently
      the concentrationpoint to which the fish go for entrance.
      ;icY;;ld appear to be within the area Intended to be pro-
               Since the jetty Is designed to function as a
      part oi the pass, and since it appears to definitely ln-
      fluence the movement of the fish and to create conditions
      which gave rise to Article 941, we conclude that an area
      Ut+&-h 'UIP,
                 db   Qt-Snsgw+, Qf tJIp-Qts      QW%X 4c ti
      jetty Is within the area prohibited by Article 941.
                            SUMMARY

           R .S. tit;;":;" f$';,.SE;;;ia:~;;il::k%    '*
           the water: of any natural'or artificial pass
Hon. Ramle 33.Griffin, Page 5,    (V-1191)


    maintained by the Game, Fish and Oyster
    Commission as a fish pass, and Is not,
    therefore,presently applicableto Sablne
    Pass or Sabine Jetty. Sy the provlslons
    of Article 941, V.P.C., it Is Illegal to
    seine with the equipment thereln forbidden
    within one mile of any point on the orig-
    inal Sabine Pass or the Sablne Jetty.

APPROVED:                        Yours very truly,
Red McDaniel                       PRICE DARIRL
State Affairs Division           Attoruey General
Jesse P. Luton, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant

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