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
                                           lfuecesBay 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;tthe Regu-
       lar Session of the 4lst Legislature,which
       made It unlawful ii0net in Huecea Bay."
              You have orally submittedanother question
which Is:
            "Did the Act c? 1937 (Acts 45th Leg.,
       ch. 182, p* 372*) rcepealthat part of Artl-
       CL3 941, Vernon's Penal Code, as amended in
       1929, which made un1awfk.lthe use or posses-
       sion of nets for taking fish and shrimp in
       lVuece8Bay?"
          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, artffielalbait> 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
Hsno John Ii0Miller, Page 2, V-314.


and Oyster Commissioner(now Game, Ffsh and Oyster Com-
mission) or by his authorizeddeputy 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 specificallynamed 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      gangcf the 'tidalbaEp 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 Legislatureenacted a statute
lion,John H, Miller, Peqe 3, V-314*


.(Acts 45th Leg.,ch, 182, p* 372), which made it ualaw-
ful for any $0XsOn to place, net, use, or have'ln pos-
seasion or have on board      boat, or on any vehicle,
any se&are
         B net or trawl in7 he tldsl waters oS liueces
and Aramsa8~Countle8named or deilned therein. It per-
mltted the u8e of a cast net or minnow seine of not
exceeding twenty Seet la length, or a licensed trawl,
In any of the waters mentioned therein at any time for
the purpose oftski    b&it; and made It 1awSuI to have
8 88lQe, net or bsali
                   9f Qa bO8Pd any vessel vhen such ve8-
seI Is in port or wlrlleenroute to or from the Gulf OS
Mexico or other vatera where It 1s lawful to use or pos-
sess such a seine, net or trawl. It also contains this
provision:
          "Provided It shall be lawSu1 to pos-
     8888 Or us8 a iiC8nSed travl~or     seine
     in any other nalt vatera or mews  county
     not BEntiOlledin thl8 Act a8 closed." (&-
     phasls added).
          Nueces Bay is within the term "salt waters OS
Nueces Couaaty,"and la "not mentioned in this Act aa
clOse8 water80* Pherefore, the possession or u8e ef a
llcensledtrawl, net or seine for catching fish or ahrlmp
In Aueces Bay was by this Act made lawful, and to that
extent It modlSled or reperlea by lmplicatlon~that art
eS Article 941 In conflict therewith, which made unkaw-
f'ul,
    8uch poseesslon or use of trawls, nets and seines
ie fuecee Baya Hovever, the provision8 OS SectIons la
and Ic OS Artfcle 941 were not repealed.
           Artfcle    952L-10, Vernon'8 Penal Code, was
Sfrst enacted in 1932 (Acts 42nd Leg,, 3rd C. S., pq
92) and amended In 1939 (Acts 46th Legb, Spec. bW8,
pv818,$bCa 1). This Article made it 1
strlke nets, gill net8, trammel net8 or   -%!#$%::I,
                                            8
a8 defined by the statutes,r0r      the tsW;ng of fish an15
shrimp from certain named or defined bodies OS salt wa-
tere in Cha8Ibersand GaIV88tOn Counties during the per-
                A ust 15th and endlng May 15th OS each
        ArMa 8 9
iod bd‘ipIIIT      "$1 as amended in 1929 abaoluteljpro-
Ekd      the uas Or*IWtS and trawl8 r0r’thetaking of
fish am4 mbdmp in ;anJof these,saItwaters of Chamber8
and GaIveaten Counties at any time. Therefore, there
IS an lxreoenollableconflict between these tW0 Stat-
ute8, the 8rr8Ct or which 18 that Article 952L--30nodl-
Sfe8 or repeaI8 by Implicationthat part of Article 941
 ,,.~
 .,
  )::.~
lion.Johm B. W115e3, Page 4, V-314.
.




    lion0John H. Hillsr,   ?rge 5,   V-314.




                                Yours very truly
                            ATfOBWBYBHWRRALOF TXXAU

                               &A

                                         David Wuntah
                                              Assistant




                                                          :