State v. Jackson

• Decision Date: 04 March 1964
• Docket Number: No. A-9849,A-9849
• Citation: 376 S.W.2d 341
• Parties: The STATE of Texas, Petitioner, v. John B. JACKSON et al., Respondents.
• Court: Texas Supreme Court

Page 341

376 S.W.2d 341

The STATE of Texas, Petitioner, v. John B. JACKSON et al., Respondents.

No. A-9849.

Supreme Court of Texas.

March 4, 1964.

Waggoner Carr, Atty. Gen. of Texas, Austin, Fred D. Ward and James P. Briscoe, Asst. Attys. Gen., for petitioner.

Jackson & Jackson, Joe F. Sandlin, Anahuac, for respondents.

CLAVERT, Chief Justice.

Suit was by the State of Texas, acting by and through the Game and Fish Commission, successor state agency to Game, Fish & Oyster Commissioner and predecessor to the present Parks and Wildlife Department, to enjoin violation by respondents of a regulation promulgated in a proclamation of the Commission. The trial court denied the relief sought, and the Court of Civil Appeals has affirmed. 370 S.W.2d 797.

We affirm the judgment of the Court of Civil Appeals.

Respondents were using nets of a certain type in the taking of fish from Galveston Bay in Chambers County pursuant to a claim of right authorized by Acts Regular Session, 55th Leg., 1957, ch. 480, p. 1394, noted under Article 978j in Vernon's Penal Code. The Act will be referred to hereafter as House Bill 835. The Commission's regulation, promulgated in a proclamation dated May 27, 1959, prohibited the use of the type of net being used by respondents in the waters where the same was being used. Legislative authority of the Commission for adoption of the regulation was first authorized in Art. 39 of an act of the Legislature passed in 1919. See Acts First Called Session, 36th Leg., ch. 73, p. 191, 204, now partially codified as Article 4045, Revised Civil Statutes of Texas, also shown as Art. 4045, Vernon's Texas Civil Statutes.

The trial court's judgment denying injunctive relief is predicated on its conclusion that 'Article 4045 * * * is in direct conflict with * * * Article 978j of Vernon's Annotated Penal Code, said Article 978j being enacted at a date subsequent to the enactment of Article 4045 * * *.' The conclusion indicates a belief by the trial judge that House Bill 835 repealed Art. 4045, Vernon's Texas Civil Statutes, at least to the extent of any conflict between the two. The Court of Civil Appeals expressly so held.

The parties to the litigation and Sportsmen's Clubs of Texas, author of an amicus curias brief, also treat the problem as one of repeal, or at least partial repeal, of Art. 4045 by House Bill 835. We do not so regard the problem. We regard the problem, rather, as one of suspension of the power of an administrative agency to act with respect to a matter which, although within the agency's general field of regulation, has been preempted by action of the Legislature itself.

The Act of 1919 was a comprehensive Act creating the Office of Game, Fish & Oyster Commissioner, and prescribing the terms and conditions upon which all forms of marine life might be taken from the waters of the State. Art 39 of the Act made use of nets and seines, except minnow and shrimp seines, unlawful in all tidal and coastal waters during the months of June, July and August, and the use of nets and seines, ex cept minnow seines, unlawful in specified coastal waters at any time. Galveston Bay was not specified. The Article then authorized the Game, Fish & Oyster Commissioner, whenever he deemed best for protection of fish life, to close, upon notice, tidal waters and bays to all forms of netting and seining, except with minnow seines of not more than twenty feet in length. The Article then provided a misdemeanor penalty for taking fish with prohibited nets and seines in 'such closed waters,' and authorized seizure and destruction of prohibited fishing devices. Art. 39 and certain other Articles of the Act of 1919 were amended by Acts Regular Session, 38th Leg., ch. 139, p. 294, 297, but the amendment is not material to this decision.

When the Laws of Texas were codified in 1925, the entire substantive content of Art. 39 of the 1919 Act, as amended in 1923, was carried forward as Art. 941 of the Penal Code. In addition, the portion of Art. 39 conferring regulatory authority upon the Game, Fish & Oyster Commissioner was carried forward into Art. 4045 of the Revised Civil Statutes. The penal provisions of Art. 39 were carried into Art. 941 of the Penal Code, but were not carried into Art. 4045 of the Revised Civil Statutes. Art. 941 of the Penal Code was amended are re-enacted in 1929. See Acts Regular Session, 41st Leg., 1929, ch. 119, p. 269. By the amendment Galveston Bay was listed as one of the water areas in which use of nets and seines was declared to be unlawful, and the provisions conferring regulatory authority on the administrative agency were entirely omitted from the Article. Between 1929 and 1957 many local and special laws were enacted making unlawful or lawful the use of nets for the taking of fish from designated coastal waters. It was in this statutory context that House Bill 835 was enacted by the Legislature in 1957.

Section 1 of House Bill 835 provides:

'It shall be unlawful for any person to place or set, or have in his use or possession, in or on any of the waters of that portion of Galveston Bay and Trinity Bay lying within Chambers and Harris Counties, Texas, north of a line extending from Eagle Point to Smith Point, any set net, or gill net, trap or similar device for the purpose of catching fish. Provided it shall be lawful to use trammel nets which shall not exceed a length of twelve hundred (1200) feet and shall have at least a three and one-half (3 1/2) inch stretch mesh.'

The proclamation of the Game and Fish Commission declares:

'* * * it is hereby proclaimed and decreed by the Game and Fish Commission of the State of Taxas that it shall be unlawful for any person to use any seines or nets or to drag same for the purpose of taking or attempting to take any of the fish or other edible marine life, with the exception of shrimp and oysters, in the waters of Galveston Bay, Trinity Bay, East Bay and West Bay in the counties of Galveston, Chambers and Harris.'

In the petition filed by the State of Texas it was alleged that defendants were violating the prohibition contained in the proclamation by fishing with nets in the waters of Galveston Bay in Chambers County. It was not alleged and it is not contended by the State that the nets used by the defendants exceeded 1200 feet in length or had a stretch mesh of less than 3 1/2 inches. Neither was it alleged that defendants were using nets outside of the area in which their use is made lawful by H.B. 835. The position of the State is that the Game and Fish Commission could, under authority of Article 4045, close the whole of Galveston Bay to the use of the type and size of nets made lawful for use in a part of the Bay by House Bill 835.

Aside from their argument that the repealing clause of H.B. 835 ('All other laws and parts of laws in conflict herewith are hereby expressly repealed, to the extent of such conflict only.') did not repeal Article 4045 in whole or in part, an argument with which we need not deal, the State and amicus curias seem to present two primary reasons for contending that the action of the Game and Fish Commission should be held effective and operative in the area defined in spite of the last sentence of Section 1 of H.B. 835. The reasons are: (1). That if the Legislature had never acted, fishing in the defined waters with the type of nets described would have been lawful, but the Commission would have had authority under Article 4045 to close the waters to fishing with such nets; and that the legislative declaration that fishing with such nets shall be lawful does not dimihish the Commission's power in that respect. (2). That by placing the sentence in a penal statute the Legislature intended the word lawful to mean only that no criminal penalties would be imposed if nets as there described were used, and not that the Commission was shorn of power to prohibit their use. We do not regard either of the suggested reasons to be a sound basis for holding that effect may be given to the Commission's action.

The first reason ignores the concept of legislative preemption. The Game and Fish Commission (now State Parks and Wildlife Department) is a creature of the...