Untitled Texas Attorney General Opinion ( 1975 )

THE ATTBIZNEY GENERAL
OF TEXAS
Auwrmr. TEXAS 78711
aoBN L ax-
ATroRNEY 0 -AZ
May 22, 1975
The Honorable Clayton T. Garrison Opinion No. H- 613
Executive Director
Parks & Wildlife Department Re: Authority of cities to adopt
John H. Reagan Building fishing regulations which differ
Austin, Texas 78701 from those promulgated by the
Parks & Wildlife Department.
Dear Mr. Garrison:
You have requested our opinion regarding the authority of cities to
adopt fishing regulations which differ from those promclgated by the Parks
and Wildlife Department. Specifically, you ask:
1. Whether an incorporated city or other local govern-
mental entity may adopt and enforce, with respect to
fish caught in the public waters under its control,
size and bag limits which differ from those imposed
by the Parks & Wildlife Commission pursuant to the
Uniform Wildlife Regulatory Act.
2. Whether an incorporated city or other local
governmental entity may adopt and enforce, with
respect to the public waters under its control, an order
establishing a minimum age requirement below which
an individual is prohibited from fishing.
Article 4026, V. T . C. S., declares that
All fish and other acquatic animal life contained in the
fresh water rivers, creeks and streams and in lakes
or sloughs subject to overflow from rivers or other
streams within the borders of this State are . . . the
property of the people of this State.
The public enjoys a general right to fish in the public streams and waters,
subject to regulations imposed by the State. Diversion Lake Club v. Heath,
58 S.W.2d 566 (Tex. Civ. App. -- Austin 1933), aff’d, 86 S.W.2d 441
(Tex. sup. 1935).
p. 2714
The Honorable Clayton T. Garrison - Page 2
The Uniform Wildlife Regulatory Act, article 978j-1, Penal
Auxiliary Laws, initially adopted in 1967, empowered the Parks and
Wildlife Commission, in particular counties, to:
by proclamation, rule or regulation, from
time to time, provide the means and the method
and the place and manner in which . . . wildlife
resources may be lawfully taken. Sec. 2.
The Act further specifies that:
All game laws. . . shall be in full force and effect
until the Parks and Wildlife Commission shall, in
accordance with this Act, issue a proclamation,
rule or regulation dealing with the subject matter
of the county affected by such presently existing
game law. Sec. 18.
You state that a number of cities have inquired as to whether they may
impose size or bag limits which differ from those presently in effect by
virtue of regulations already promulgated by the Parks and Wildlife
Commission. We limit our opinion to those waters defined in article 4026
which are the fresh water rivers, creeks and streams and lakes and
sloughs subject to, overflow from rivers or other streams. It is well
established that:
Municipal ordinances must conform to the limitations
imposed by the superior statutes, and only where the
ordinance is consistent with them, and each of them,
will it be enforced. Bolton v. Sparks, 362 S.W.2d
946, 950 (Tex. Sup. 1962).
Although a city is at liberty to act:
[A] s long as the state does not, in its Constitution
or by general statute, cover any field of the activity
of the cities of this state any given city is at liberty
to act for itself. But when the state itself steps in
and makes a general law and applies such law to all
cities of a certain class. . . no city of the sane class
is authorized. . . to enact contrary legislation.
of Beaumont v. Fall, 291 S.W. 202, 205-06 (Tex. %mm.
App. 1927).
p. 2715
The Honorable Clayton T. Garrison - Page 3
Since the Legislature has conferred upon the Parks and Wildlife
Commission the authority to prescribe the “manner in which wildlife
resources may be lawfully taken, ” since the Commission has imposed
size and bag limits upon certain categories of fish in certain geographical
areas, and since the right of the State to control the public waters is
paramount, it is our opinion that an incorporated city or other local
governmental entity may not adopt and enforce, with respect to fish
caught in the public waters under its control, size and bag limits which
differ from those imposed by the Parks and Wildlife Commission pursuant
to the Uniform Wildlife Regulatory Act.
In response to your second question, we believe that a city is also
prohibited from adopting an order which establishes a minimum age require-
ment for the privilege of fishing. Article 4032b-1, V. T. C. S., requires a
fishing license of all persons at least 17 and under 65 years of age. No age
restrictions are imposed therein on the privilege of fishing. Furthermore,
article 4032~ grants to:
All residents of this State who are 65 years of age or
over and all persons who are under 16 years of age
shall be entitled to all hunting and fishing privileges
for which a commercial license is not required,
without obtaining a license for such non-commercial
privileges and without payment of any fee.
It is thus apparent that the imposition of a minimum age requirement
would contravene the clear intent of article 4032~ to extend to persons
under 16 years of age the privileges of non-commercial fishing. An
order imposing such a requirement would not be “consistent with statute, ”
Bolton v. Sparks, m, and a city would thus be precluded from adopting
and enforcing it.
SUMMARY
An incorporated city or other local governmental entity
may not adopt and enforce, as to the public waters
under its control, size and bag limits on fish which differ
from those promulgated by the Parks and Wildlife Commission
pursuant to the Uniform Wildlife Regulatory Act, nor an order
establishing a minimum age requirement below which an
individual is prohibited from fishing.
Attorney General of Texas
p. 2716
The Honorable Clayton T. Garrison - Page 4
ROBERT HEATH, Chairman
Opinion Committee
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p. 2717