Can a small Texas town pass an ordinance banning boats from dragging fishing nets in the public water inside its city limits?

Texas AG Opinion JM-1106: Can a Town Ban Net-Towing in Its Public Waters?

Plain-English summary

The Village of Tiki Island, a small waterfront community on Galveston Bay, adopted an ordinance banning boats from towing or dragging nets of any size in certain public waters inside the village limits. The village said the practice threatened the safety of recreational and other users of those waters. Someone suggested the ordinance conflicted with the state's shrimping law (Chapter 77 of the Parks and Wildlife Code), so the executive director of the Texas Parks and Wildlife Department asked the Attorney General whether the ordinance was valid.

The Attorney General concluded that, on its face, it was. The starting point was section 31.092(a) of the Parks and Wildlife Code, which lets the governing body of an incorporated city designate areas of the public water within its limits as bathing, fishing, swimming, or "otherwise restricted" areas, and make rules about the operation and equipment of boats that it deems necessary for public safety, as long as those rules are consistent with the water-safety chapter. Having formally found the net-towing ban necessary for public safety, the village fit within that grant of power. The opinion cautioned that whether the ordinance is actually reasonable is a question of fact that the Attorney General cannot decide in the opinion process; that assumes the ordinance was properly adopted and that the designated waters really are within the corporate limits.

The trickier question was the claimed conflict with the shrimping law. Section 77.041 generally authorizes the use of shrimp trawls and fishing gear on licensed commercial shrimp boats, but only where that use "is not otherwise prohibited by law." The Attorney General focused on that phrase. The Legislature could have written "prohibited by this chapter," "this title," or "this code," which would have limited the exception to other Parks and Wildlife rules. Instead it chose the broad word "law," which the opinion read to include a municipal ordinance validly adopted under section 31.092(a). So the shrimping law itself carves out room for a local ordinance like Tiki Island's, and the two do not conflict. The opinion did not reach any constitutional question.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Parks and Wildlife Code sections cited here (31.092 and 77.041) may have been amended or renumbered since 1989, and local ordinances and the boundaries of a village's public waters change over time. Anyone dealing with a present-day question about a municipal water-safety ordinance or commercial shrimping gear should check the current Parks and Wildlife Code and the specific ordinance rather than relying on the 1989 framing here.

Who this opinion affected (as of 1989)

Waterfront cities and towns: The opinion confirmed that an incorporated city could designate restricted areas in its own public waters and regulate boating equipment there for safety, including banning net-towing, as long as the rules stayed consistent with the state water-safety chapter.

Commercial shrimpers and net fishermen: For boat operators, the opinion meant a state commercial shrimp license did not override a valid local ban. Section 77.041's own "otherwise prohibited by law" language left room for city ordinances restricting where gear could be used.

The Parks and Wildlife Department: The department, which asked the question and receives copies of such ordinances under section 31.092(d), got confirmation that a village net-towing ban did not conflict with the code it administers.

Common questions

Can a Texas city ban dragging nets in the public water inside its limits?
Yes. Section 31.092(a) of the Parks and Wildlife Code lets an incorporated city designate restricted areas in its public waters and adopt boat-operation and equipment rules it finds necessary for public safety, which supports a net-towing ban.

Doesn't a state shrimping license let a boat use its nets anywhere?
No. Section 77.041 authorizes commercial shrimp gear except where its use is "otherwise prohibited by law." The Attorney General read "law" broadly to include a valid municipal ordinance, so a local ban still applies.

Did the Attorney General decide the ordinance was reasonable?
No. The opinion said the reasonableness of an ordinance is a question of fact that cannot be resolved in the opinion process. It found the ordinance valid on its face, assuming it was properly adopted and the designated waters are within the village limits.

Does the city have to tell the state about the ordinance?
Yes. Section 31.092(d) requires a copy of rules and regulations adopted under that section to be filed with the Parks and Wildlife Department.

Background and statutory framework

The Village of Tiki Island adopted Ordinance No. 4-89-1 (1989) prohibiting the towing or dragging of nets of any size behind boats in certain public waters within the village. Part of the restricted area was described as any area nearer than 300 feet from any bulkhead adjacent to land within the village, and the opinion assumed those waters lie within the corporate limits.

Section 31.092(a) of the Parks and Wildlife Code authorizes the governing body of an incorporated city or town, with respect to public water within its corporate limits and lakes it owns, to designate by ordinance certain areas as bathing, fishing, swimming, or otherwise restricted areas, and to make rules relating to the operation and equipment of boats that it deems necessary for public safety, provided the rules are consistent with the chapter. Section 31.092(d) requires that a copy of such rules be filed with the department. The opinion found the ordinance conformed on its face to section 31.092(a), because the village found the ban necessary for public safety and designated areas of public water within its limits as restricted. It noted that the reasonableness of an ordinance is a fact question outside the opinion process. See, e.g., John v. State, 577 S.W.2d 403 (Tex. Crim. App. 1979); City of Clute v. Linscomb, 446 S.W.2d 377 (Tex. Civ. App. - Houston [1st Dist.] 1969, no writ); City of Corpus Christi v. Unitarian Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.); Sitterle v. Victoria Cold Storage Co., 33 S.W.2d 546 (Tex. Civ. App. - San Antonio 1930, writ dism'd). The opinion also found no conflict with the rest of Chapter 31, which covers motorboat registration, safety equipment, dangerous boating activity, and enforcement.

On the shrimping question, Chapter 77 regulates the possession, catching, weighing, and sale of shrimp, including restrictions on net and mesh size. Section 77.041 authorizes the use of shrimp trawls and fishing gear on licensed commercial shrimp boats "unless the use is otherwise prohibited by law." Reasoning that the Legislature could have limited the exception to prohibitions in "this chapter," "this title," or "this code," but instead used the broad term "law," the Attorney General concluded the exception reaches a municipal ordinance adopted under section 31.092(a). City of Stamford v. Ballard, 345 S.W.2d 596, 600 (Tex. Civ. App. - Eastland 1960, no writ) (the Legislature could have prohibited other burdens rather than other "like burdens"); see Choice v. City of Dallas, 210 S.W. 753 (Tex. Civ. App. - Amarillo 1919, no writ). The ordinance therefore did not conflict with section 77.041. The opinion did not reach any constitutional issue.

Citations

Statutory authorities (Parks and Wildlife Code):

• § 31.092 (incorporated city may designate restricted areas in its public waters and adopt boat rules for public safety; § 31.092(d) filing requirement)
• § 77.041 (commercial shrimp gear may be used unless its use is otherwise prohibited by law)

Cases:

• John v. State, 577 S.W.2d 403 (Tex. Crim. App. 1979) (reasonableness of an ordinance is a question of fact)
• City of Clute v. Linscomb, 446 S.W.2d 377 (Tex. Civ. App. - Houston [1st Dist.] 1969, no writ) (same)
• City of Corpus Christi v. Unitarian Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.) (same)
• Sitterle v. Victoria Cold Storage Co., 33 S.W.2d 546 (Tex. Civ. App. - San Antonio 1930, writ dism'd) (same)
• City of Stamford v. Ballard, 345 S.W.2d 596 (Tex. Civ. App. - Eastland 1960, no writ) (Legislature's choice of general rather than limited statutory language is deliberate)
• Choice v. City of Dallas, 210 S.W. 753 (Tex. Civ. App. - Amarillo 1919, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1106
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1106.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

October 6, 1989

Mr. Charles D. Travis
Executive Director
Texas Parks and Wildlife Department
4200 Smith School Road
Austin, Texas 78744

Opinion No. JM-1106

Re: Validity of a municipal ordinance prohibiting the towing or dragging of nets near a bulkhead (RQ-1734)

Dear Mr. Travis:

The Village of Tiki Island has adopted an ordinance prohibiting the towing or dragging of nets of any size behind boats in certain public waters that are within the corporate limits of the village. You state, "It has been suggested that this action by the Village of Tiki Island, Texas is contrary to Chapter 77 of the Parks and Wildlife Code" and ask for our opinion on the validity of the ordinance. We assume that your concern focuses on section 77.041. Assuming that the ordinance was adopted in accordance with law and that the waters that it designates as restricted are within the corporate limits,[1] we believe that, on its face, this is a valid ordinance.

You also state that the ordinance was adopted pursuant to section 31.092 of the Parks and Wildlife Code, which reads in part as follows:

(a) The governing body of an incorporated city or town, with respect to public water within its corporate limits and all lakes owned by it, may designate by ordinance certain areas as bathing, fishing, swimming, or otherwise restricted areas and may make rules and regulations relating to the operation and equipment of boats which it deems necessary for the public safety. The rules and regulations shall be consistent with this chapter.

. . . .

(d) A copy of all rules and regulations adopted under this section shall be summarily filed with the department.

Parks & Wild. Code § 31.092.

[1] We make this assumption because, while part of the restricted area is identified as being within the corporate limits of the village, part is identified as "any area nearer than three hundred (300) feet from any bulkhead adjacent to any land within the corporate limits of the Village." Village of Tiki Island, Ordinance No. 4-89-1 (1989).

The ordinance declares that the towing of nets "threatens the safety of recreational and other users of the waters within the corporate limits" and that the prohibition is reasonably "necessary to promote safety within such waters." Of course, the reasonableness of an ordinance is a question of fact, which we cannot resolve in the process of issuing an opinion. See, e.g., John v. State, 577 S.W.2d 403 (Tex. Crim. App. 1979); City of Clute v. Linscomb, 446 S.W.2d 377 (Tex. Civ. App. - Houston [1st Dist.] 1969, no writ); City of Corpus Christi v. Unitarian Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.); Sitterle v. Victoria Cold Storage Co., 33 S.W.2d 546 (Tex. Civ. App. - San Antonio 1930, writ dism'd).

We find no conflict between the ordinance and the other provisions of chapter 31. The chapter generally relates to water safety, i.e., identification and registration of motorboats (subchapter B), required safety equipment (subchapter C), prohibitions on dangerous boating activity (subchapter D), and enforcement and penalty provisions (subchapter E). We believe that the ordinance conforms, at least on its face, to section 31.092(a): finding it necessary for the public safety, the governing body of an incorporated town has enacted an ordinance, with respect to public water within its corporate limits, designating certain areas as "otherwise restricted."

Nor do we believe that the ordinance conflicts with section 77.041. Chapter 77 generally regulates the possession, catching, weighing and sale of shrimp, including restrictions on the size of nets and the size of the mesh. Section 77.041 provides general authorization to use equipment on licensed commercial shrimp boats, as follows:

All shrimp trawls and fishing gear, except fishnets or seines, with which a boat having a commercial shrimp boat license issued under this subchapter is equipped may be used unless the use is otherwise prohibited by law. (Emphasis added.)

Parks & Wild. Code § 77.041.

Webster's New Collegiate Dictionary defines "trawl," when used as a noun, as "a large conical net dragged along the sea bottom in gathering fish or other marine life."

While granting general authority to use trawls or nets on licensed shrimp boats, the legislature chose to except use that is "otherwise prohibited by law." The legislature could have excepted use that is otherwise prohibited by "this chapter," "this title," or "this code." See City of Stamford v. Ballard, 345 S.W.2d 596, 600 (Tex. Civ. App. - Eastland 1960, no writ) (legislature could have prohibited other burdens rather than other "like burdens"). By using the general term, "law," the legislature clearly intended to except use prohibited by any law, including a municipal ordinance enacted under the authority granted in section 31.092(a). See Choice v. City of Dallas, 210 S.W. 753 (Tex. Civ. App. - Amarillo 1919, no writ). On the basis of the information furnished us, the particular ordinance in question is not in conflict with section 77.041 of the Parks and Wildlife Code. We do not reach any constitutional issue here.

SUMMARY

The Village of Tiki Island is authorized to enact an ordinance prohibiting the towing of nets in certain areas of public water within the corporate limits of the village.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General