Does a licensed commercial shrimper in Texas need a separate finfish license to legally sell fish caught while shrimping?

Texas AG Opinion JM-1206: Do Licensed Shrimpers Need a Separate License to Sell Finfish?

Plain-English summary

The Executive Director of the Texas Parks and Wildlife Department asked whether the captain and each paid crew member of a licensed commercial shrimp boat needed to also hold a commercial finfish fisherman's license in order to sell finfish caught incidentally while shrimping. The department's own staff had concluded yes, reading the finfish license as a specialized, restricted entitlement meant to protect a segment of the commercial fishing industry and promote conservation.

The Attorney General disagreed with the department's position. Comparing the statutory definitions, the opinion found that a "commercial fisherman" (the license shrimpers already hold) is broadly defined to include catching any edible aquatic product except oysters for sale, while a "commercial finfish fisherman" is a narrower category limited to a person who catches only finfish. Because the general commercial fisherman's license already authorized catching and selling finfish among other edible aquatic products, the opinion concluded shrimpers licensed as general commercial fishermen did not need an additional finfish license. The opinion noted a 1979 bill that would have created the more restrictive licensing scheme the department wanted was introduced but never reported out of committee, reinforcing that the legislature had not enacted the department's preferred approach.

Currency note

This opinion was issued in 1990. 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.

Who this opinion affected (as of 1990)

Commercial shrimp boat captains and crew: The opinion concluded they did not need to obtain a separate commercial finfish fisherman's license, beyond the general commercial fisherman's license already required under section 77.040 of the Parks and Wildlife Code, in order to sell finfish species that were otherwise lawful to sell.

Texas Parks and Wildlife Department: The opinion rejected the department's administrative interpretation that a separate finfish license was required, concluding that interpretation was not supported by the plain language of the Parks and Wildlife Code's licensing definitions.

Common questions

Does a Texas shrimper need a special license to sell fish caught along with the shrimp?
No, according to the opinion. The Attorney General concluded the general commercial fisherman's license that shrimp boat crews already hold covers selling finfish species that are otherwise lawful to sell, since that license's definition already includes catching edible aquatic products other than oysters.

Why did the Parks and Wildlife Department think a separate license was required?
The department viewed the commercial finfish fisherman's license as a specialized entitlement meant to protect part of the commercial fishing industry and promote conservation of finfish species, and pointed to testimony supporting a 1979 bill that would have created a more restrictive licensing scheme along those lines.

Did the legislature ever pass that more restrictive licensing scheme?
No. The opinion noted the 1979 bill (Senate Bill 302) that would have carved out an exclusive finfish-selling right for finfish-license holders was never reported out of the Senate Committee on Natural Resources, and the definitions actually enacted that same session did not create the dichotomy the department wanted to enforce.

Background and statutory framework

Chapter 47 of the Parks and Wildlife Code defines a "commercial fisherman" as a person who catches edible aquatic products, except oysters, from Texas waters for pay or for sale, barter, or exchange, and a general commercial fisherman's license authorizes engaging in that business. Section 47.003(a) separately requires a "commercial finfish fisherman," defined as a person who catches only finfish from tidal waters for pay or sale, to hold a commercial finfish fisherman's license. Section 77.040(b) requires the captain and each paid crew member of a licensed commercial shrimp boat to hold a general commercial fisherman's license.

The opinion applied the principle that an agency's construction of a statute it administers is entitled to deference, citing Ex parte Roloff and Burroughs-Knight v. Lyles, but noted courts will not follow an agency interpretation that contradicts a statute's clear meaning, citing Texas Health Facilities Comm'n v. El Paso Med. Surgical Assocs. Examining the 1979 legislative history, the opinion found Senate Bill 302, which would have created a specialized "tidal water commercial finfish fisherman's license" giving holders an exclusive right to sell certain finfish species, was never reported out of the Senate Natural Resources Committee. While the failure of a bill to advance does not by itself prove legislative intent under El Chico Corp. v. Poole, the opinion found that intent was independently confirmed by comparing the failed bill's provisions to the definitions actually adopted that same session, which did not create the restrictive dichotomy the department urged. The opinion concluded that because the general commercial fisherman's license by definition already covers catching edible aquatic products other than oysters, requiring a separate finfish license for shrimpers would be inconsistent with the code's plain language, even though the opinion acknowledged this reading makes the commercial finfish fisherman's license largely redundant for shrimp boat crews already licensed as general commercial fishermen.

Citations

Statutes:

• Tex. Parks & Wild. Code § 47.001(1) (definition of "commercial fisherman")
• Tex. Parks & Wild. Code § 47.001(2) (definition of "commercial finfish fisherman")
• Tex. Parks & Wild. Code § 47.001(7) (definition of "tidal water")
• Tex. Parks & Wild. Code § 47.001(14) (definition of "finfish")
• Tex. Parks & Wild. Code § 47.002(a) (general commercial fisherman's license authority)
• Tex. Parks & Wild. Code § 47.003(a) (commercial finfish fisherman's license requirement)
• Tex. Parks & Wild. Code § 77.040(b) (shrimp boat captain/crew license requirement)
• Acts 1979, 66th Leg., ch. 260, at 550 (definitions adopted)
• Acts 1979, 66th Leg., ch. 623, at 1398 (definitions adopted)

Cases:

• Ex parte Roloff, 510 S.W.2d 913 (Tex. 1974)
• Burroughs-Knight v. Lyles, 181 S.W.2d 570 (Tex. 1944)
• Texas Health Facilities Comm'n v. El Paso Med. Surgical Assocs., 573 S.W.2d 291 (Tex. Civ. App. - Tyler 1978, writ ref'd n.r.e.)
• El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987)
• City of Nassau Bay v. Winograd, 582 S.W.2d 505 (Tex. Civ. App. - Houston [1st Dist.] 1979, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1206
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1206.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. The source PDF does not print an issuance date anywhere on page 1; based on the surrounding opinion sequence (JM-1205 was issued August 9, 1990, and JM-1207 was issued August 15, 1990), this opinion was issued in August 1990.

THE ATTORNEY GENERAL OF TEXAS

Mr. Andrew Sansom
Executive Director
Texas Parks and Wildlife Department
4200 Smith School Road
Austin, Texas 78744

Opinion No. JM-1206

Re: Whether licensed commercial shrimpers must hold commercial finfish fisherman's licenses in order to sell finfish (RQ-1852)

Dear Mr. Sansom:

Your predecessor requested the opinion of this office on an issue concerning the authority of commercial shrimpers to sell finfish¹ captured in the course of harvesting shrimp from the waters of this state. You ask whether the captain and each paid member of the crew of a boat licensed as a commercial shrimp boat are required to hold both a general commercial fisherman's license and a commercial finfish fisherman's license in order to sell finfish species that are otherwise lawful to sell. The staff of the Parks and Wildlife Department has answered the question in the affirmative.

It is well established that the construction of a statute by the agency charged with its administration is entitled to great weight. Ex parte Roloff, 510 S.W.2d 913 (Tex. 1974). This is especially true where the administrative construction is contemporaneous, or nearly so, with the statute itself. Burroughs-Knight v. Lyles, 181 S.W.2d 570 (Tex. 1944). The courts will not, however, abide by an administrative agency's interpretation that is contrary to the clear meaning of an unambiguous statute. Texas Health Facilities Comm'n v. El Paso Med. Surgical Assocs., 573 S.W.2d 291 (Tex. Civ. App. - Tyler 1978, writ ref'd n.r.e.); 2 Tex. Jur. 3d,

The captain and each paid member of the crew of a boat licensed as commercial shrimp boat under chapter 77 of the Parks and Wildlife Code must obtain a general commercial fisherman's license. Parks & Wild. Code § 77.040(b). A commercial fisherman is

a person who catches edible aquatic products except oysters from the water of this state for pay or for the purpose of sale, barter, or exchange, or any other commercial purpose.

Id. § 47.001(1). The general commercial fisherman's license authorizes the licensee to engage in business as a commercial fisherman. See id. § 47.002(a).

In contrast, section 47.003(a) of the code provides, "No person may engage in business as a commercial finfish fisherman unless he has obtained a commercial finfish fisherman's license." A commercial finfish fisherman is "a person who catches only finfish from the tidal waters² of this state for pay or for the purpose of sale, barter, or exchange." Id. § 47.001(2) (emphasis and footnote added).

The department's position on this issue is based on its understanding of the nature and purpose of the commercial finfish fisherman's license. The license is thought to constitute a specialized and restricted entitlement to capture finfish species for commercial purposes. The restriction, we are told, was meant to protect a segment of the commercial fishing industry while at the same time promoting conservation of finfish species. In support of these claims, our attention is directed to public testimony offered in support of Senate Bill 302 of the 66th Legislative Session in 1979.

Senate Bill 302 would have added a new class of commercial fishing license -- the "tidal water commercial finfish fisherman's license" -- to the then existing tidal water commercial fisherman's license and nontidal water commercial fisherman's license. Bill File, S.B. 302, 66th Leg. (1979) (introduced version). It would also have changed the definition of "tidal water commercial fisherman" to mean, in relevant part, "a person who catches fish, other than." The term "finfish" was limited in the bill to eight particular species of fish. The bill would have carved a special niche for holders of commercial finfish fisherman's licenses, in essence granting them the exclusive right to exploit the designated finfish species for commercial purposes. See Public Hearing on S.B. 302 Before the Senate Comm. on Natural Resources, 66th Leg. (1979) (testimony of Senator Babe Schwartz) (tape on file from Senate Staff Services).

The bill history prepared by the Legislative Reference Library shows that Senate Bill 302 was never reported out of the Senate Committee on Natural Resources. The failure to report a bill from committee or inaction by the legislature on a particular bill does not conclusively establish legislative intent as to the subject matter of the bill. El Chico Corp. v. Poole, 732 S.W.2d 306, 314-15 (Tex. 1987). This rule, strictly speaking, means that the failure of the legislature to act on Senate Bill 302 is not indicative of its intent to reject the principles embodied in the bill. Such intent, however, is clearly evident from a comparison of the provisions of the bill with the sections of the Parks and Wildlife Code that occupy their place.

The plain language of the Parks and Wildlife Code does not support the dichotomy set out in Senate Bill 302. Because the captain and crew of a commercial shrimp boat are entitled by their licenses to engage in business as commercial fishermen, they are by definition not prohibited from catching, in addition to shrimp, edible aquatic products other than oysters. The definitions of "commercial fisherman" and "commercial finfish fisherman" now in place were adopted during the same legislative session at which Senate Bill 302 was offered. Acts 1979, 66th Leg., ch. 260, at 550; Acts 1979, 66th Leg., ch. 623, at 1398. These definitions clearly indicate that the legislature intended the latter occupation to constitute a subset of the former, at least where edible species of finfish are concerned. Neither the definitions nor the provisions governing the issuance of the two licenses inform those persons who must determine the effect of the statutes on their occupations of the dichotomy urged by the department.

The best indicator of legislative intent is the language of the enacted law. See McGuire v. City of Dallas, 170 S.W.2d 722 (Tex. Comm'n App. 1943, opinion adopted); City of Nassau Bay v. Winograd, 582 S.W.2d 505, 508 (Tex. Civ. App. - Houston [1st Dist.] 1979, writ ref'd n.r.e.). The relevant provisions of the Parks and Wildlife Code may not describe the activities in which holders of general commercial fisherman's licenses may engage in the way the department would prefer, but we do not believe they are indefinite or misleading. Accordingly, we conclude that the captain and paid members of the crew of a boat licensed as a commercial shrimp boat are not required to obtain commercial finfish fisherman's licenses in addition to the general commercial fisherman's license required by section 77.040 of the Parks and Wildlife Code in order to sell finfish species that otherwise are lawful to sell.³

SUMMARY

The captain and paid members of the crew of a boat licensed as a commercial shrimp boat are not required to obtain commercial finfish fisherman's licenses in addition to the general commercial fisherman's license required by section 77.040 of the Parks and Wildlife Code in order to sell finfish species that otherwise are lawful to sell.

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

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General