CHAPTER 76. OYSTERS
PARKS AND WILDLIFE CODE
TITLE 5. WILDLIFE AND PLANT CONSERVATION
SUBTITLE D. CRUSTACEANS AND MOLLUSKS
CHAPTER 76. OYSTERS
SUBCHAPTER A. PUBLIC AND PRIVATE OYSTER BEDS
Sec. 76.001. DEFINITIONS. In this chapter:
(1) "Barrel of oysters" means three boxes of oysters in the
shell or two gallons of shucked oysters without shells. The
dimensions of a box are 10 inches by 20 inches by 13-1/2 inches.
In filling a box for measurement, the oysters may not be piled
more than 2-1/2 inches above the height of the box at the center.
(2) "Natural oyster bed" means an area where at least five
barrels of oysters are found within 2,500 square feet of any
position on a reef or bed.
(3) "Open season" means a period during which it is lawful to
take oysters.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
241, Sec. 1, eff. September 1, 2009.
Sec. 76.002. DESIGNATION OF PUBLIC AND PRIVATE BEDS. (a) All
natural oyster beds are public.
(b) All oyster beds not designated as private are public.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.003. BEDS SUBJECT TO LOCATION. Except as provided in
Section 76.004 of this code, an oyster bed or reef, other than a
natural oyster bed, is subject to location by the department.
This section does not apply to a bed or reef that has been
exhausted within an eight-year period.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.004. RIPARIAN RIGHTS. (a) The lawful occupant of a
grant of land in this state has the exclusive right to use any
creek, bayou, lake, or cove included within the metes and bounds
of the original grant for the planting or sowing of oysters.
(b) If the creek, bayou, lake, or cove is not included in the
original grant, a riparian owner has an exclusive right in the
creek, bayou, lake, or cove for the planting and sowing of
oysters to the middle of the creek, bayou, lake, or cove or to
100 yards from the shore, whichever distance is shorter.
(c) The right of a riparian owner of land along any bay shore in
this state to plant oysters extends 100 yards into the bay from
the high-water mark or from where the land survey ceases. The
right to a natural oyster bed under this subsection is not
exclusive.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.005. AFFIDAVIT OF RIPARIAN RIGHTS. (a) The department
may require the owner of riparian rights described in Section
76.004 of this code when offering oysters for sale to make an
affidavit stating that the oysters were produced on his property.
(b) The failure of an owner of riparian rights described in
Section 76.004(a) of this code to have an affidavit when required
by the department or to show it to a game management officer on
request or to the person to whom the oysters are offered for sale
when required by the department is prima facie evidence that the
oysters were produced from public beds.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.006. APPLICATION FOR LOCATION; FEE. (a) Any citizen of
the United States or any domestic corporation may file a written
application with the department for a certificate authorizing the
applicant to plant oysters and make a private oyster bed in the
public water of the state.
(b) The application must describe the location desired.
(c) The application must be accompanied by a fee of $20 or an
amount set by the commission, whichever amount is more.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 2, Sec. 65,
eff. Sept. 1, 1985.
Sec. 76.007. MAXIMUM ACREAGE UNDER LOCATION. (a) The
department may not issue a certificate of location for a location
that includes more than 100 acres of land covered by water.
(b) A person may not own, lease, or control more than 300 acres
of land covered by water under certificates of location. A person
who does not own, lease, or control more than 300 acres of land
may act as an agent for persons who, in the aggregate, own,
lease, or control more than 300 acres of land.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 2001, 77th Leg., ch. 968, Sec. 41, eff.
Sept. 1, 2001.
Sec. 76.008. LEASE OR CONTROL BY FOREIGN CORPORATION PROHIBITED.
No corporation other than those incorporated under the laws of
this state may lease or control land under a certificate of
location.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.009. EXAMINATION AND SURVEY OF LOCATION. (a) On
receipt of an application for a location, the department shall
examine the proposed location as soon as practicable by any
efficient means.
(b) If the location is subject to certification, the department
shall have the location surveyed by a competent surveyor.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.012. LOCATOR'S CERTIFICATE. (a) The department shall
issue to each locator a certificate signed and sealed by the
director.
(b) The certificate must contain:
(1) the date of the application;
(2) the date of the survey; and
(3) a description of the location by metes and bounds with
reference to points of the compass and natural objects by which
the location may be found and verified.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.015. RIGHTS OF LOCATOR. (a) The holder of a
certificate of location as provided for in Section 76.012 of this
code is protected in his possession of the location against
trespass in the same manner as are freeholders.
(b) This section applies only as long as the stakes or pipes and
buoys required by this chapter are maintained in their correct
positions and the locator complies with the law and the
regulations governing the fish and oyster industries.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.017. LOCATION RENTAL FEES. (a) The holder of a
certificate of location shall pay to the department $6 per acre
of location per year to rent the location under the certificate.
In lieu of that payment, the commission may set the required
payment under this section in a greater amount.
(b) Rental fees are due annually by March 1.
(c) The holder of a certificate shall pay the department a late
penalty fee equal to 10 percent of the amount due for any rental,
transfer, sale, or renewal fee that is not paid when due.
(d) The failure to pay any rental, transfer, sale, renewal, or
late penalty fee within 90 days of the due date terminates the
lease.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1979, 66th Leg., p. 908, ch. 416, Sec. 2,
eff. Aug. 27, 1979; Acts 1983, 68th Leg., p. 1338, ch. 277, Sec.
46, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 267, art. 2,
Sec. 66, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 448, Sec.
1, eff. Jan. 1, 1990; Acts 2001, 77th Leg., ch. 968, Sec. 42,
eff. Sept. 1, 2001.
Sec. 76.018. LOCATION RENTAL TERM; RENEWAL; AUCTION. (a) The
term of a rental lease for a location under this subchapter is 15
years.
(b) The commission shall determine renewal procedures to follow
at the end of each lease term. The procedures must include:
(1) a determination that the lease renewal will be based on the
need for depuration of polluted oysters and other considerations
specified in the oyster management plan;
(2) payment of a $200 fee due on renewal of the lease;
(3) a condition that the current leaseholder will be offered a
first right of refusal if the lease is renewed under this
chapter; and
(4) any other conditions for the lease renewal that do not
conflict with this chapter.
(c) The commission shall determine auction procedures for the
issuance of a lease that is not renewed by the previous
leaseholder under Subsection (b).
Added by Acts 2001, 77th Leg., ch. 968, Sec. 43, eff. Sept. 1,
2001.
Sec. 76.019. PROCEDURES FOR SALE OR TRANSFER OF LOCATION RENTAL.
The commission shall determine procedures for reissuance of a
lease when the lease is sold or otherwise transferred. The
procedures must include:
(1) payment of a $200 fee due on the sale or transfer of the
lease unless the lease is inherited; and
(2) a provision that the sale or transfer does not change the
lease term.
Added by Acts 2001, 77th Leg., ch. 968, Sec. 43, eff. Sept. 1,
2001.
Sec. 76.020. OYSTER SHELL RECOVERY AND REPLACEMENT PROGRAM. The
commission by proclamation may establish and conduct a program to
require the recovery of oyster shell from and replacement of
oyster shell in the coastal waters of the state to maintain or
enhance public oyster reefs.
Added by Acts 1991, 72nd Leg., ch. 644, Sec. 1, eff. Aug. 26,
1991.
SUBCHAPTER B. OYSTER PERMITS
Sec. 76.031. APPLICATION FOR PERMIT. (a) A person desiring to
plant oysters on his own location or to take oysters from oyster
reefs and public water shall apply to the department for an
oyster permit.
(b) Only those persons who are citizens of Texas or corporations
composed of American citizens and chartered by this state to
engage in the culture of oysters or to transact business in the
purchase and sale of fish and oysters may apply for a permit.
(c) The application must:
(1) state the purpose for taking oysters; and
(2) give the quantity of oysters to be taken from designated
areas.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.032. DISCRETION TO ISSUE PERMIT. The department may
issue or refuse to issue a permit to any applicant.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.033. CONDITIONS OF PERMIT. (a) The department shall
require the permittee to take only the oysters authorized in the
permit from beds or reefs designated in the permit.
(b) The department shall:
(1) mark off the exact area of beds or reefs from which oysters
may be taken;
(2) designate the bottoms on which oysters may be deposited if
they are taken to be prepared for market;
(3) require the permittee to cull the oysters on the grounds
where they are to be located; and
(4) specify what implements may be used in taking oysters.
(c) The department may make other conditions or regulations to
protect and conserve oysters on public reefs and beds.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.035. OYSTERS PROPERTY OF PERMITTEE. All oysters taken
or deposited in public water by the holder of an oyster permit
under the terms of a permit are the personal property of the
permit holder.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.036. MARKING BEDS. (a) The holder of a permit shall
clearly and distinctly mark by buoys or other permanent markers
easily visible above the surface of the water the boundaries of
the areas designated in the permit from which he may take or in
which he may deposit oysters.
(b) No person may be prosecuted for taking oysters from the bed
of a permittee unless the boundaries are established and
maintained as provided in this section.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 2001, 77th Leg., ch. 968, Sec. 44, eff.
Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
384, Sec. 1, eff. June 15, 2007.
Sec. 76.037. THEFT OF OYSTERS FROM PRIVATE BED. No person may
fraudulently take oysters placed on private beds without the
consent of the owner of the private bed or from beds or deposits
made for the purpose of preparing oysters for market without the
consent of the owner of the oysters who lawfully deposited them.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 80,
eff. Sept. 1, 1985.
Sec. 76.038. INTERFERENCE WITH BUOYS OR MARKERS. (a) No person
may deface, injure, destroy, or remove a buoy, marker, or fence
used to designate or enclose a private oyster bed or location
where oysters have been deposited for preparation for market
without the consent of the owner of the bed or location.
(b) No person may deface, injure, destroy, or remove a buoy,
marker, or sign of the department used for designating water
closed for the taking of fish or oysters without the consent of
the department.
(c) Repealed by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 110,
eff. Sept. 1, 1985.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 110,
eff. Sept. 1, 1985.
Sec. 76.039. PROHIBITED SALES. (a) No person gathering oysters
for planting or for depositing for market preparation on
locations or on private oyster beds may sell, market, or dispose
of the oysters gathered, at the time they are gathered, for any
other purpose than planting or preparing for market.
(b) This section does not affect the right of a person to sell
or assign an oyster location or private bed.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 81,
eff. Sept. 1, 1985.
Sec. 76.040. PENALTIES. (a) Except as otherwise provided by
this section, a person who violates a provision of this
subchapter or a regulation adopted by the commission under this
subchapter commits an offense that is a Class C Parks and
Wildlife Code misdemeanor.
(b) A person who violates Section 76.037 or Section 76.038 of
this code commits an offense that is a Class B Parks and Wildlife
Code misdemeanor.
(c) If it is shown at the trial of the defendant that he has
been convicted once within five years before the trial date of a
violation of Section 76.037 or 76.038 of this code, he is guilty
of a Class A Parks and Wildlife Code misdemeanor.
(d) If it is shown at the trial of the defendant that he has
been convicted two or more times within five years before the
trial date of a violation of Section 76.037 or 76.038 of this
code, he is guilty of a Parks and Wildlife Code felony.
Added by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 82, eff.
Sept. 1, 1985.
SUBCHAPTER C. OYSTER LICENSES
Sec. 76.101. OYSTER LICENSES REQUIRED. (a) No person may take
or attempt to take oysters from the public water of this state
for noncommercial use by the use of a dredge or tongs without
first having acquired a sport oyster boat license from the
department.
(b) Except as provided in Subsection (d) of this section, no
person may take or attempt to take oysters from the public water
of this state for pay or for the purpose of sale, barter, or
exchange or any other commercial purpose without first having
acquired from the department a commercial oyster fisherman's
license.
(c) No person may take or attempt to take oysters from the
public water of this state by the use of a dredge, tongs, or
other mechanical means, or by the use of a boat or other vessel
for pay, or for the purpose of sale, barter, or exchange or any
other commercial purpose without first having acquired from the
department a commercial oyster boat license.
(d) The captain and crew of a licensed commercial oyster boat
are not required to have commercial oyster fisherman's licenses
to take oysters while they are on a licensed boat that is being
used to take oysters.
(e) The captain and each crew member of a licensed commercial
oyster boat, each person on a licensed sport oyster boat, and
each person oystering under a commercial oyster fisherman's
license must possess and produce on request to any enforcement
officer proof of the person's identity.
(f) The captain of a commercial oyster boat must hold a valid
commercial oyster boat captain's license to operate a commercial
oyster boat while taking or attempting to take oysters from the
public water of this state.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1989, 71st Leg., ch. 255, Sec. 2, eff. July
31, 1989; Acts 1993, 73rd Leg., ch. 365, Sec. 16, eff. Sept. 1,
1993.
Sec. 76.102. LICENSE APPLICATION. (a) An applicant for an
oyster boat license, which is not a renewal of the previous
year's license, issued under this subchapter must submit to the
department the boat's United States Coast Guard certificate of
documentation or Texas' or other state's certificate of number
for a vessel or motorboat.
(b) The license issued by the department must contain:
(1) the name of the boat if the boat is registered with the
United States Coast Guard; and
(2) the number appearing on the United States Coast Guard
certificate of documentation or Texas' or other state's
certificate of number.
Added by Acts 1989, 71st Leg., ch. 255, Sec. 3, eff. July 31,
1989. Amended by Acts 1993, 73rd Leg., ch. 365, Sec. 17, eff.
Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 450, Sec. 26, eff. Sept.
1, 1993.
Sec. 76.103. TYPES OF LICENSES; PERIOD OF VALIDITY. A
commercial oyster boat license, commercial oyster boat captain's
license, sport oyster boat license, or commercial oyster
fisherman's license expires on August 31 of the yearly period for
which it is issued or another date set by the commission.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1981, 67th Leg., p. 548, ch. 229, Sec. 1,
eff. Aug. 31, 1981; Acts 1989, 71st Leg., ch. 255, Sec. 4, eff.
July 31, 1989; Acts 1993, 73rd Leg., ch. 365, Sec. 18, eff. Sept.
1, 1993; Acts 1995, 74th Leg., ch. 931, Sec. 69, eff. June 16,
1995.
Sec. 76.1031. LICENSE EXPIRATIONS AND TRANSFERS. (a) All
licenses issued under the authority of Chapter 76 of this code
are valid only during the yearly period for which they are issued
without regard to the date on which the licenses are acquired.
Each yearly period begins on September 1 or another date set by
the commission and extends through August 31 of the next year or
another date set by the commission. The commission by rule may
set the amount of a license fee for a license issued during a
transition period at an amount lower than prescribed in this
chapter and provide for a license term for a transition period
that is shorter or longer than a year.
(b) All licenses issued under the authority of this chapter may
not be transferred to another person or vessel except as provided
by this subsection. A license issued under the authority of
Section 76.101(c) may be transferred to another vessel or to a
new owner of the same vessel. The commission, by regulation, may
prescribe requirements necessary to clarify license transfer
procedures and may prescribe, by regulation, forms to be used and
fees to be charged for transfer of licenses in this chapter and
for duplicate license plates or duplicate or replacement
licenses.
Added by Acts 1993, 73rd Leg., ch. 365, Sec. 19, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 931, Sec. 70, eff.
June 16, 1995; Acts 1997, 75th Leg., ch. 1256, Sec. 114, eff.
Sept. 1, 1997.
Sec. 76.104. LICENSE FEES. (a) Except as provided by
Subsection (e) of this section, the fee for a commercial oyster
boat license is $350 or an amount set by the commission,
whichever amount is more.
(b) Except as provided by Subsection (f) of this section, the
fee for a sport oyster boat license is $10 or an amount set by
the commission, whichever amount is more.
(c) Except as provided by Subsection (g) of this section, the
fee for a commercial oyster fisherman's license is $100 or an
amount set by the commission, whichever amount is more. The
definition for "resident" for this subsection is the same as the
resident definition in Section 47.001 of this code.
(d) Except as provided by Subsection (h) of this section, the
fee for a commercial oyster boat captain's license is $25 or an
amount set by the commission, whichever amount is more. The
definition for "resident" for this subsection is the same as the
resident definition in Section 47.001 of this code.
(e) The fee for a commercial oyster boat license for a boat that
is not numbered under Chapter 31 of this code or does not have a
certificate of documentation issued by the United States Coast
Guard that lists an address in Texas for the boat owner or other
criteria established by the commission is $1,400 or an amount set
by the commission, whichever amount is more.
(f) The fee for a sport oyster boat license for a boat that is
not numbered under Chapter 31 of this code or does not have a
certificate of documentation issued by the United States Coast
Guard that lists an address in Texas for the boat owner or other
criteria established by the commission is $40 or an amount set by
the commission, whichever amount is more.
(g) The fee for a nonresident commercial oyster fisherman's
license is $250 or an amount set by the commission, whichever
amount is more. The definition for "nonresident" for this
subsection is the same as the nonresident definition in Section
47.001 of this code.
(h) The fee for a nonresident commercial oyster boat captain's
license is $100 or an amount set by the commission, whichever
amount is more. The definition for "nonresident" for this
subsection is the same as the nonresident definition in Section
47.001 of this code.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1983, 68th Leg., p. 1338, ch. 277, Sec. 47,
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 267, art. 2, Sec.
67, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 621, Sec. 4,
eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 255, Sec. 5, eff.
July 31, 1989; Acts 1993, 73rd Leg., ch. 365, Sec. 20, eff. Sept.
1, 1993; Acts 1995, 74th Leg., ch. 931, Sec. 71, eff. June 16,
1995.
Sec. 76.1041. LICENSE DISPLAY AND DESIGN. (a) A commercial
oyster boat license issued under this subchapter must be
prominently displayed on the bow, outside the wheelhouse, or at
another point outside the boat designated by the department, and
on each side of the boat, evidencing payment of the license.
(b) A commercial oyster boat license issued under this
subchapter must be a metal or plastic sign or emblem of
sufficient size to allow enforcement of this chapter and have a
different color or design for each license period.
Added by Acts 1989, 71st Leg., ch. 255, Sec. 6, eff. July 31,
1989. Amended by Acts 1993, 73rd Leg., ch. 365, Sec. 21, eff.
Sept. 1, 1993.
Sec. 76.107. SALE OF SPORT OYSTERS PROHIBITED. No person may
sell oysters taken under the authority of a sport oyster boat
license.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1989, 71st Leg., ch. 255, Sec. 8, eff. July
31, 1989; Acts 1993, 73rd Leg., ch. 365, Sec. 23, eff. Sept. 1,
1993.
Sec. 76.109. NIGHT DREDGING PROHIBITED. During the open season,
no person may take oysters from public water during the period
between sunset and sunrise.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.112. OYSTER SIZE LIMITS. (a) Repealed by Acts 1997,
75th Leg., ch. 1256, Sec. 130, eff. Sept. 1, 1997.
(b) A cargo of undersized oysters shall be determined by taking
at random five percent of the total cargo of oysters as a sample,
of which not more than five percent may measure less than three
inches along an imaginary straight line through the long axis of
the shell.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1997, 75th Leg., ch. 1256, Sec. 130, eff.
Sept. 1, 1997.
Sec. 76.114. EXCEPTION TO SIZE AND RETENTION LIMITS. (a) The
commission by permit may allow the use of one or more dredges of
any size and cargoes in excess of 50 barrels in transplanting to
or harvesting from private leases.
(b) The commission by permit may allow the taking and retention
of cargoes having oysters between three-fourths inch and three
inches in a greater percentage than five percent.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.115. CLOSING AREAS. (a) The commission may close an
area to the taking of oysters when the commission finds that the
area is being overworked or damaged or the area is to be reseeded
or restocked.
(b) The commission may open closed areas when appropriate.
(c) Before closing any area, the commissioner shall post notices
of the closing in fish and oyster houses in two towns nearest the
area to be closed and shall publish notice in a daily newspaper
of general circulation in the area to be closed. The notices
shall be posted and published at least three days before the
effective date of the closing.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1975, 64th Leg., p. 1220, ch. 456, Sec. 18,
eff. Sept. 1, 1975.
Sec. 76.116. OYSTERS FROM RESTRICTED AREAS. (a) There is no
open season for taking oysters from areas closed by the
Department of State Health Services.
(b) The department may authorize by permit the transplanting of
oysters from restricted areas or other areas designated by the
department to private oyster leases.
(c) A person removing oysters from a restricted area or other
area designated by the department without a permit shall replace
the oysters in the beds from which they were taken as directed by
authorized employees of the department.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1989, 71st Leg., ch. 255, Sec. 10, eff.
July 31, 1989; Acts 1997, 75th Leg., ch. 1256, Sec. 115, eff.
Sept. 1, 1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
241, Sec. 2, eff. September 1, 2009.
Sec. 76.117. OBEDIENCE TO ORDERS. No person may fail or refuse
to obey a lawful order of a commissioned game management officer
of the department issued under the authority of this chapter.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975.
Sec. 76.118. PENALTIES. (a) Except as provided in Subsections
(b) and (c) of this section, a person who violates a provision of
this subchapter or a regulation of the commission issued under
this subchapter commits an offense that is a Class C Parks and
Wildlife Code misdemeanor.
(b) A person who violates Section 76.101, 76.107, or 76.109 or a
regulation of the commission issued under one of those sections
commits an offense that is a Class B Parks and Wildlife Code
misdemeanor.
(c) A person who violates Section 76.116, or at the same time
violates Sections 76.109 and 76.116, commits an offense that is a
Class A Parks and Wildlife Code misdemeanor.
(d) Each day of a continuing violation constitutes a separate
offense.
(e) If it is shown at the trial of a defendant for a violation
of Section 76.101, 76.107, or 76.109 that the defendant has been
convicted once within five years before the trial date of a
violation of Section 76.101, 76.107, or 76.109, the defendant is
guilty of a Class A Parks and Wildlife Code misdemeanor.
(e-1) If it is shown at the trial of a defendant for a violation
of Section 76.116 that the defendant has been convicted once
within five years before the trial date of a violation of Section
76.116, the defendant is guilty of a Parks and Wildlife Code
state jail felony.
(f) If it is shown at the trial of a defendant for a violation
of Section 76.101, 76.107, 76.109, or 76.116 of this code that
the defendant has been convicted two or more times within five
years before the trial date of a violation of Section 76.101,
76.107, 76.109, or 76.116 of this code, the defendant is guilty
of a Parks and Wildlife Code felony.
(g) If it is shown at the trial of a defendant for a violation
at the same time of Section 76.109 and either Section 76.116 or
Section 76.205 of this code that the defendant has been convicted
once before within five years before the trial date of a
violation at the same time of Section 76.109 and either Section
76.116 or 76.205 of this code, the defendant is guilty of a Parks
and Wildlife Code felony.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 83,
eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 255, Sec. 11, eff.
July 31, 1989.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
241, Sec. 3, eff. September 1, 2009.
Sec. 76.119. RESPONSIBILITY FOR VIOLATION. (a) If a vessel
licensed as a commercial oyster boat is involved in a violation
of this chapter, the captain of the vessel licensed as a
commercial oyster boat is primarily responsible for the
violation. A member of the crew of a vessel licensed as a
commercial oyster boat is not guilty of a violation unless the
member of the crew committed the violation against the captain's
orders, except for a violation of Section 76.109 or 76.116, in
which case each person on the vessel is responsible for the
violation.
(b) The owner of a vessel licensed as a commercial oyster boat
involved in a violation of this chapter is not guilty of the
violation unless the owner knowingly directed, authorized,
permitted, agreed to, aided, or acquiesced in the violation.
Added by Acts 1989, 71st Leg., ch. 255, Sec. 12, eff. July 31,
1989.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
241, Sec. 4, eff. September 1, 2009.
SUBCHAPTER E. OYSTER REGULATIONS
Sec. 76.301. REGULATION OF TAKING, POSSESSION, PURCHASE, AND
SALE OF OYSTERS. (a) The commission by proclamation may
regulate the taking, possession, purchase, and sale of oysters. A
proclamation issued under this section must contain findings by
the commission that support the need for the proclamation.
(b) In determining the need for a proclamation under Subsection
(a) of this section, the commission shall consider:
(1) measures to prevent the depletion of oyster beds while
achieving, on a continuing basis, the optimum yield for the
oystering industry;
(2) measures based on the best scientific information available;
(3) measures to manage oysters;
(4) measures, where practicable, that will promote efficiency in
utilizing oyster resources, except that economic allocation may
not be the sole purpose of the measures;
(5) measures, where practicable, that will minimize cost and
avoid unnecessary duplication in their administration; and
(6) measures which will enhance enforcement.
(c) A proclamation issued under Subsection (a) of this section
may limit the quantity and size of oysters that may be taken,
possessed, sold, or purchased and may prescribe the times,
places, conditions, and means and manner of taking oysters.
However, measures dealing with sale and purchase may only be
implemented at first sale or exchange transaction.
(d) A proclamation of the commission under this section prevails
over:
(1) any conflicting provision of Subchapter A, B, or C of this
chapter to the extent of the conflict; and
(2) a proclamation of the commission issued under the Wildlife
Conservation Act of 1983 (Chapter 61 of this code).
(e) A proclamation of the commission under this section does not
prevail over any order, rule, or regulation adopted by the
Commissioner of Health under Subchapter D of this chapter.
(f) A person who violates a proclamation issued under Subsection
(a) of this section commits an offense. An offense under this
section is punishable by a fine of not less than $25 nor more
than $200.
(g) The commission shall make no proclamation under this chapter
until it has approved and adopted an oyster management plan and
economic impact analysis prepared by the department as provided
in Section 76.302 of this code and unless such proclamation is
shown to be consistent with the approved oyster management plan.
Added by Acts 1985, 69th Leg., ch. 633, Sec. 1, eff. June 14,
1985.
Sec. 76.302. RESEARCH PROGRAM. (a) The department shall
conduct continuous research and study of:
(1) the supply, economic value, environment, and reproductive
characteristics of the various economically important species of
oysters;
(2) factors affecting the increase or decrease in oyster stocks
in both an annual and long-term cycle;
(3) the use and effectiveness of dredges and other devices for
the taking of oysters;
(4) industrial and other pollution of the water naturally
frequented by oysters;
(5) statistical information gathered by the department on the
marketing, harvesting, processing, and taking of oysters;
(6) environmental parameters in areas in which oysters may be
found that may serve as limiting factors of oyster population
abundance;
(7) other factors that, based on the best scientific information
available, may affect the health and well-being of the
economically important oyster resources; and
(8) alternative management measures for oysters that may be
considered for implementation in the management regime.
(b) The research may be conducted by the department or an agency
designated by the department.
Added by Acts 1985, 69th Leg., ch. 633, Sec. 1, eff. June 14,
1985.
SUBCHAPTER F. OYSTER LICENSE MORATORIUM
Sec. 76.401. OYSTER LICENSE MORATORIUM PROGRAM. The department
shall implement an oyster license moratorium program to promote
efficiency and economic stability in the oyster industry.
Added by Acts 2005, 79th Leg., Ch.
104, Sec. 1, eff. May 20, 2005.
Sec. 76.402. ISSUANCE AND RENEWAL OF COMMERCIAL OYSTER BOAT
LICENSES. (a) After August 31, 2005, the department may not
issue or renew a commercial oyster boat license unless the person
seeking to obtain or renew the license documents to the
satisfaction of the department that the vessel for which the
license is sought:
(1) is owned by the person;
(2) was licensed as a commercial oyster boat on the day the
renewal was sought or at the end of the licensing period
immediately preceding the period for which the license is sought;
and
(3) is intended to be licensed and used as a commercial oyster
boat.
(b) An applicant for a new or renewed commercial oyster boat
license for a vessel must submit to the department with the
license application:
(1) the United States Coast Guard certificate of documentation
for the vessel, if the vessel is required by United States Coast
Guard rules to be documented; and
(2) the certificate of number for the vessel as required by
Chapter 31.
Added by Acts 2005, 79th Leg., Ch.
104, Sec. 1, eff. May 20, 2005.
Sec. 76.403. OYSTER LICENSE MORATORIUM REVIEW BOARD. (a) The
holders of commercial oyster boat licenses shall elect an oyster
license moratorium review board of seven members.
(b) A member of the review board must be a holder of a
commercial oyster boat license.
(c) The seven members of the review board must be selected to
reflect the following geographical distribution according to the
county of residence specified on the member's commercial oyster
boat license:
(1) one member representing Orange, Jefferson, Chambers, and
Harris Counties;
(2) two members representing Galveston County;
(3) one member representing Brazoria and Matagorda Counties;
(4) two members representing Calhoun, Aransas, Nueces, San
Patricio, and Refugio Counties; and
(5) one member representing Kleberg, Cameron, and Willacy
Counties.
(d) The review board shall advise the commission and department
and make recommendations concerning the administrative aspects of
the oyster license moratorium program, including hardship and
appeal cases concerning eligibility.
(e) The director shall adopt procedures for the election and
operation of the review board. The director shall solicit and
consider recommendations from the commercial oyster boat license
holders regarding the procedures and the continued need for the
board.
(f) The review board is not subject to Chapter 2110, Government
Code.
Added by Acts 2005, 79th Leg., Ch.
104, Sec. 1, eff. May 20, 2005.
Sec. 76.404. PROGRAM ADMINISTRATION; RULES. (a) The director
shall establish administrative procedures to carry out the
requirements of this subchapter.
(b) The commission shall adopt any rules necessary for the
administration of the program established under this subchapter.
Added by Acts 2005, 79th Leg., Ch.
104, Sec. 1, eff. May 20, 2005.
For expiration of Section 76.405, see Subsection (c)
Sec. 76.405. REPORT OF PROGRAM STATUS. (a) Not later than
January 1, 2010, the department shall report to an advisory
committee appointed by the presiding officer of the commission to
address issues relating to oysters in this state.
(b) The report under Subsection (a) must include an overview of
the administration and status of the program established under
this subchapter and information concerning the sociological and
economic effects of the program.
(c) This section expires September 1, 2010.
Added by Acts 2005, 79th Leg., Ch.
104, Sec. 1, eff. May 20, 2005.