January 25, 1972

Honorable James U. 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 bass 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 bass 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
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Honorable James U. Cross, page 2        (M-1045)



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 bass 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 bass 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


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    Honorable James U. Cross,   page 3      (M-1045)



    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




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