Could Texas refuse or restrict commercial fishing licenses for Arkansas residents because Arkansas limited licenses for Texans?
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This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-298: Nonresident Fishing Licenses
Plain-English summary
A Texas legislator asked whether Texas had to sell commercial fishing licenses to residents of a state that restricted Texans' access to its own licenses, and whether Texas could impose a similar restriction. The request described Arkansas as allowing Texas residents to fish commercially only in an area of the Red River while Texas allowed Arkansas residents to fish commercially in any Texas waters. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
JM-298 concluded that section 47.002 required Texas to sell nonresident general commercial fishing licenses at the fee specified by the statute. The provision did not authorize the Parks and Wildlife Department “to refuse a commercial fisherman's license to nonresidents for the reason that their state discriminates against Texans in the issuance of commercial fishing licenses.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
The opinion also concluded that the Privileges and Immunities Clause protected commercial fishing as a common calling. Texas therefore could discriminate against residents of another state only when a substantial reason supported the different treatment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Reciprocal retaliation did not meet that standard. The opinion's answer was direct: “Retaliation against Arkansas for apparent discrimination against Texas residents does not constitute the requisite reason.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Currency note
This opinion was issued in 1985. 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.
Common questions
Did the 1985 statute authorize Texas to deny a license because another state treated Texans differently?
No. JM-298 said section 47.002 provided for nonresident licenses and did not authorize denial based on another state's discrimination against Texas residents. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
How did section 47.002 set the nonresident fee?
The statute charged the amount that the nonresident's home state charged a Texas resident for a similar license, or $25, whichever was larger. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Was commercial fishing protected by the Privileges and Immunities Clause?
Yes. JM-298 stated: “Commercial fishing has been recognized as an occupation protected by the Privileges and Immunities Clause.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Could a state ever treat nonresidents differently?
Yes, but the opinion said discrimination required a substantial reason and quoted Toomer v. Witsell's requirement that noncitizens be “a peculiar source of the evil at which the statute is aimed.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Why did the opinion discuss recreational hunting?
JM-298 contrasted commercial fishing with the recreational big-game hunting considered in Baldwin v. Fish and Game Commission of Montana. It described the latter as “not a right protected by Privileges and Immunities Clause.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Background and statutory framework
Section 47.002 required a general commercial fisherman's license and established separate fees for residents and nonresidents. The Parks and Wildlife Code defined a commercial fisherman as a person who caught fish, oysters, or other edible aquatic products from Texas waters “for pay or for the purpose of sale, barter, or exchange.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
The constitutional analysis relied on United States Supreme Court decisions applying the Privileges and Immunities Clause to common occupations. Toomer v. Witsell had invalidated a South Carolina commercial shrimping fee for nonresidents that was one hundred times the resident fee because the discrimination lacked a reasonable relationship to the asserted conservation purpose. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Austin v. New Hampshire and Travis v. Yale & Towne Manufacturing Co. supported the opinion's conclusion that retaliation against another state's discriminatory law did not supply the required justification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Citations and references
- Parks and Wildlife Code sections 47.001(1) and 47.002
- Privileges and Immunities Clause, article IV, section 2 of the United States Constitution
- Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978)
- Hague v. CIO, 307 U.S. 496 (1939)
- United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 104 S.Ct. 1020 (1984)
- Toomer v. Witsell, 334 U.S. 385 (1948)
- Austin v. New Hampshire, 420 U.S. 656, 668 (1975)
- Travis v. Yale & Towne Manufacturing Co., 252 U.S. 60, 82 (1920)
- Dobard v. State, 233 S.W.2d 435 (Tex. 1950)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0298
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0298.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
March 5, 1985
Honorable Fred J. Agnich
Chairman
Committee on Environmental Affairs
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769
Opinion No. JM-298
Re: Whether the state of Texas must sell commercial fishing licenses to a person residing in a state which does not offer equivalent licenses to Texas residents
Dear Representative Agnich:
You request an Attorney General's Opinion concerning section 47.002 of the Parks and Wildlife Code, which sets fees for a commercial fisherman's license. It establishes different fees for Texas residents and nonresidents.
Your letter provides the following information:
The state of Arkansas restricts the sale of its commercial fishing licenses to an area in the Red River where its south bank is the boundary line between Arkansas and Texas. In no other area of the state are Texas residents allowed to fish commercially. On the other hand, Texas allows the sale of licenses to Arkansas residents to commercially fish in any waters in our state.
You ask two questions:
Is the state of Texas required to sell reciprocal licenses to a state that restricts our Texas residents?
Could Texas put a similar restriction on the sale of commercial licenses to the state of Arkansas?
Section 47.002 of the Parks and Wildlife Code provides an answer to your first question:
(a) No person may engage in business as a commercial fisherman unless he has obtained a general commercial fisherman's license.
(b) The license fee for a general commercial fisherman's license is $15. Fifty cents of the fee may be retained by the issuing agent, except an employee of the department.
(c) The license fee for a nonresident general commercial fisherman's license is the amount that a Texas resident is charged in the state in which the nonresident is residing for a similar license or $25, whichever amount is the larger. The department shall publish a list of nonresident fees according to the fees of each state and may alter the fee amounts in the list before September 1 of each year for the remainder of that license year. Fifty cents of the fee may be retained by the issuing agent, except an employee of the department.
A “commercial fisherman” is defined as “a person who catches fish, oysters, or other edible aquatic products from the water of this state for pay or for the purpose of sale, barter, or exchange.” Parks and Wild. Code §47.001(1).
Section 47.002 provides for the sale of nonresident general commercial fisherman's licenses for the fee described in subsection (c). It does not authorize the Parks and Wildlife Department to refuse a commercial fisherman's license to nonresidents for the reason that their state discriminates against Texans in the issuance of commercial fishing licenses.
Your second question raises an issue of federal constitutional law. Nonresidents are protected by the Privileges and Immunities Clause, article IV, section 2 of the United States Constitution, which guarantees “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” In any state, nonresidents are to have the same privileges and immunities as residents of that state. Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978); Hague v. CIO, 307 U.S. 496 (1939). This clause has been interpreted to prevent a state from imposing unreasonable burdens on citizens of other states in their pursuit of common callings within the state. Baldwin v. Fish and Game Commission of Montana, supra.
Discrimination between residents and nonresidents is permissible where there is a substantial reason for the difference of treatment. United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden, 104 S.Ct. 1020 (1984). The substantial reason must, however, show “that noncitizens constitute a peculiar source of the evil at which the statute is aimed.” Toomer v. Witsell, 334 U.S. 385 (1948). Retaliation against another state's discriminatory legislation does not provide the required justification. Austin v. New Hampshire, 420 U.S. 656, 668 (1975); Travis v. Yale & Towne Manufacturing Co., 252 U.S. 60, 82 (1920).
Commercial fishing has been recognized as an occupation protected by the Privileges and Immunities Clause. Toomer v. Witsell, supra. Cf. Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978) (recreational big-game hunting in Montana is not a right protected by Privileges and Immunities Clause). In Toomer v. Witsell, the United States Supreme Court declared unconstitutional a South Carolina statute which virtually excluded nonresidents from commercial shrimp fishing in South Carolina waters. Toomer v. Witsell, supra, at 396-97. For each shrimp boat owned by a nonresident, South Carolina required a license fee one hundred times that paid by residents. Id. at 389. The court found no reasonable relationship between the state's alleged purpose of conservation and this discriminatory statute. There was no “reasonable relationship between the danger represented by non-citizens, as a class, and the severe discrimination practiced upon them.” Id. at 399. Nor did a state's interest in its wildlife justify its unreasonable interference with a nonresident's right to pursue a livelihood in a state other than his own. Toomer v. Witsell, 334 U.S. 385 (1948). See also Dobard v. State, 233 S.W.2d 435 (Tex. 1950).
We conclude, in answer to your second question, that Texas may not discriminate against the residents of other states in the sale of commercial fishing licenses unless such discrimination is supported by a “substantial reason” as required by the United States Supreme Court. Retaliation against Arkansas for apparent discrimination against Texas residents does not constitute the requisite reason.
SUMMARY
Section 47.002 of the Parks and Wildlife Code provides for the sale of nonresident general commercial fisherman's licenses for the fees set out in subsection (c). The Privileges and Immunities Clause, article IV, section 2 of the United States Constitution prohibits Texas from discriminating against residents of other states in the sale of commercial fishing licenses unless a substantial reason supports the discrimination. Retaliation against another state for apparent discrimination against Texas residents does not constitute the required substantial reason.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison &
Jack Carter
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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