CHAPTER 78. MUSSELS, CLAMS, AND CRABS
PARKS AND WILDLIFE CODE
TITLE 5. WILDLIFE AND PLANT CONSERVATION
SUBTITLE D. CRUSTACEANS AND MOLLUSKS
CHAPTER 78. MUSSELS, CLAMS, AND CRABS
SUBCHAPTER A. MUSSELS AND CLAMS
Sec. 78.001. DEFINITIONS. In this chapter:
(1) "Commercial purposes" includes sale, barter, or exchange, or
any other commercial use.
(2) "Mussels and clams" includes all freshwater and marine
bivalve mollusks except species covered under other chapters of
this code.
(3) "Nonresident" has the meaning assigned under Section 47.001
of this code.
(4) "Soft tissue" means mussel and clam body parts, exclusive of
the shell, and pearls.
(5) "Resident" has the meaning assigned under Section 47.001 of
this code.
Added by Acts 1993, 73rd Leg., ch. 741, Sec. 1, eff. Sept. 1,
1993.
Sec. 78.002. LICENSE REQUIRED; FEES. (a) No person may take
any mussels, clams, or their shells from the public water of the
state for commercial purposes without a resident or nonresident
commercial mussel and clam fisherman's license.
(b) The license form shall be prescribed by the department and
shall designate the water in which the licensee may operate. All
licenses issued under the authority of Chapter 78 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.
(c) The license fee for a resident commercial mussel and clam
fisherman's license is $30 or an amount set by the commission,
whichever amount is more.
(d) The license fee for a nonresident commercial mussel and clam
fisherman's license is $800 or an amount set by the commission,
whichever amount is more.
(e) The department may grant permission to use a dredge in a
designated area for an additional fee of $30 or an amount set by
the commission, whichever amount is more.
(f) Repealed by Acts 1995, 74th Leg., ch. 931, Sec. 80, eff.
June 16, 1995.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Renumbered from Sec. 71.001 and 71.002 and amended by Acts
1993, 73rd Leg., ch. 741, Sec. 1, eff. Sept. 1, 1993. Amended by
Acts 1995, 74th Leg., ch. 931, Sec. 76, 80, eff. June 16, 1995.
Sec. 78.003. SHELL BUYER LICENSE. (a) No person may purchase
for commercial use mussel or clam shells that have been taken
from the public water of the state without a resident or
nonresident shell buyer's license, except as allowed under
Section 78.005 of this code.
(b) The license form shall be prescribed by the department.
(c) The license fee for a resident shell buyer's license is $100
or an amount set by the commission, whichever amount is more.
(d) The license fee for a nonresident shell buyer's license is
$1,500 or an amount set by the commission, whichever amount is
more.
(e) The holder of a shell buyer's license shall file with the
department a report of activities performed under the license in
a form and manner specified by the department.
Acts 1975, 64th Leg., p. 1405, ch. 545, Sec. 1, eff. Sept. 1,
1975. Amended by Acts 1993, 73rd Leg., ch. 741, Sec. 1, eff.
Sept. 1, 1993; Acts 1995, 74th Leg., ch. 931, Sec. 77, eff. June
16, 1995.
Sec. 78.004. EXPORT FEE. The commission may charge a fee of
three cents a pound or an amount set by the commission, whichever
amount is more, for mussels or clams or mussel or clam shells
that are harvested from the public water of the state for export.
Funds collected from shell export fees may be used only for
research and mitigation and management activities associated with
mussels and clams.
Added by Acts 1993, 73rd Leg., ch. 741, Sec. 1, eff. Sept. 1,
1993.
Sec. 78.005. EXEMPTION FOR PERSONAL USE AND CONSUMPTION. A
person who possesses a valid fishing license or who is a resident
and is exempt from licensing requirements under Section 46.002 of
this code may take or harvest from the public water of the state,
for personal use and consumption only, not more than 25 pounds a
day of whole mussels and clams, including shell and soft tissue,
or 12 pounds a day of mussel and clam shells.
Added by Acts 1993, 73rd Leg., ch. 741, Sec. 1, eff. Sept. 1,
1993.
Sec. 78.006. REGULATION OF TAKING, POSSESSION, PURCHASE, AND
SALE OF MUSSELS AND CLAMS. (a) The commission by proclamation
may regulate the taking, possession, purchase, and sale of
mussels and clams. 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 mussels and clams;
(2) measures based on the best scientific information available;
(3) measures to manage mussels and clams;
(4) measures, where practicable, that will minimize cost and
avoid unnecessary duplication in their administration; and
(5) measures that will enhance enforcement.
(c) A proclamation issued under Subsection (a) of this section
may limit the quantity and size of mussels and clams that may be
taken, possessed, sold, or purchased and may prescribe the times,
places, conditions, and means and manner of taking mussels and
clams.
(d) A proclamation of the commission under this section prevails
over a proclamation of the commission issued under Chapter 61 of
this code.
(e) A proclamation of the commission under this section does not
prevail over:
(1) an order, rule, or regulation adopted by the commissioner of
health; or
(2) a proclamation of the commission issued under Chapter 66 of
this code.
Added by Acts 1993, 73rd Leg., ch. 741, Sec. 1, eff. Sept. 1,
1993.
Sec. 78.007. UNLAWFUL ACTS. A person who violates the
provisions of this chapter commits a Class C Parks and Wildlife
Code misdemeanor.
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. 88,
eff. Sept. 1, 1985. Renumbered from Sec. 78.004 and amended by
Acts 1993, 73rd Leg., ch. 741, Sec. 1, eff. Sept. 1, 1993.
SUBCHAPTER B. CRAB LICENSE MANAGEMENT
Sec. 78.101. CRAB LICENSE MANAGEMENT PROGRAM. To promote
efficiency and economic stability in the crabbing industry and to
conserve economically important crab resources, the department
shall implement a crab license management program in accordance
with proclamations adopted by the commission under Chapter 61 and
this subchapter.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.102. DEFINITIONS. In this subchapter:
(1) "Crab" means all species in the families Portunidae and
Xanthidae.
(2) "Commercial crab fishing" means pursuing, taking, attempting
to take, or landing crabs in this state for pay or for the
purpose of sale, barter, or exchange.
(3) "License" means a commercial license issued in accordance
with a proclamation under this subchapter that authorizes
commercial crab fishing or the operation of a commercial crab
boat.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.103. CRAB LICENSE MANAGEMENT REVIEW BOARD. (a) The
license holders under this chapter shall elect a crab license
management review board with an odd number of members greater
than four and fewer than 12.
(b) A member of the review board must be a license holder under
this subchapter or a wholesale fish dealer as defined by Section
47.001 with knowledge of the commercial crab fishing industry.
(c) A majority of the members of the review board may not be
residents of the same county.
(d) The review board shall advise the commission and department
and make recommendations concerning the administrative aspects of
the crab licensing program, including the definition of flagrant
offenses, and hardship appeal cases concerning eligibility,
license transfer, license renewal, license suspension, and
license revocation.
(e) The executive director shall adopt procedures for
determining the size and operations of the review board and the
election and terms of board members. The executive director shall
solicit and consider recommendations regarding these procedures
from persons who purchased crab trap tags after September 1,
1995, and before August 31, 1996, or from holders of licenses
issued under this subchapter.
(f) The review board is not subject to Article 6252-33, Revised
Statutes.
(g) A member of the review board serves without compensation or
a per diem allowance.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.104. LICENSING. (a) If the commission adopts one or
more licenses to be issued under this subchapter, a person may
not engage in commercial crab fishing without a license adopted
by the commission. If the commission adopts a commercial crab
boat license to be issued under this subchapter, a person may not
operate a boat for the purpose of commercial crab fishing without
having a boat license as prescribed by the commission.
(b) A proclamation under this section requiring a license must
contain findings by the commission that support the need for the
proclamation. In determining the need for a license requirement,
the commission shall consider:
(1) measures to prevent waste or depletion of crabs while
achieving, on a continuing basis, the optimum yield for the
fishery;
(2) the best scientific information available;
(3) the effect a licensing program would have on the management
of crabs throughout the jurisdictional range;
(4) the need to promote, where practicable, efficiency in using
crabs; and
(5) the need to enhance enforcement.
(c) A proclamation issued under this section may:
(1) establish a license that is issued to a person, to a person
and limited to a vessel, or to a person according to the
equipment used in commercial crab fishing, including issuing tags
for crab traps placed in public waters under Section 66.018;
(2) establish eligibility requirements for a license, including
the use of historical participation in the industry or
participation in the industry after August 31, 1995, and before
November 14, 1996;
(3) establish requirements for license transfer;
(4) prohibit license transfer during certain time periods; and
(5) establish a lottery or an auction for issuing licenses.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.105. LICENSE FEE. The fee for a license is $500, or an
amount set by the commission, whichever amount is more. All fees
generated by the issuance of a license under this subchapter are
to be sent to the comptroller for deposit to the credit of the
game, fish, and water safety account.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.106. LICENSE RENEWAL. A person seeking to renew a
license established by this subchapter must have held the license
during the preceding license year.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.107. LIMIT ON NUMBER OF LICENSES HELD. (a) A person
may not hold or directly or indirectly control more than three
licenses issued under this subchapter other than an equipment
license.
(b) A license issued to a person other than an individual must
designate an individual in whose name the license will be issued.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.108. EXPIRATION OF LICENSE. A license required by this
subchapter is valid only during the period for which it is issued
without regard to the date on which the license is acquired. Each
period is one year beginning on September 1 or another date set
by the commission.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.109. LICENSE TRANSFER. (a) The commission by rule may
set a fee for the transfer of a license. The amount of the fee
may not exceed the amount of the license fee.
(b) The commission shall send all license transfer fees to the
comptroller for deposit to the credit of the game, fish, and
water safety account.
(c) The commission by proclamation shall allow a license to be
transferred beginning not later than September 1, 2001. The
commission shall annually review the decision regarding license
transfer.
(d) Notwithstanding Subsection (c), a license may be transferred
at any time to an heir or devisee of a deceased license holder,
but only if the heir or devisee is a person who in the absence of
a will would be entitled to all or a portion of the deceased's
property.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.110. LICENSE SUSPENSION AND REVOCATION. (a) The
executive director, after notice to a license holder and the
opportunity for a hearing, may suspend or revoke a license if the
license holder or any other operator of a licensed vessel is
shown to have been convicted of one or more flagrant offenses
defined by a proclamation of the commission during a period
described by the proclamation of the commission.
(b) A license suspension does not affect the license holder's
eligibility to renew the license after the suspension expires.
(c) The same flagrant offense may not be counted for more than
one suspension under this section.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.111. LICENSE BUYBACK. (a) The department may implement
a license buyback program as part of the crab license management
program established by this subchapter.
(b) The commission by rule may establish criteria, using
reasonable classifications, by which the department selects
licenses to be purchased. The commission may delegate to the
executive director, for purposes of this section only, the
authority to develop the criteria through rulemaking procedures,
but the commission by order must finally adopt the rules
establishing the criteria. The commission or executive director
must consult with the crab license management review board
concerning establishment of the criteria.
(c) The commission must retire each license purchased under the
license buyback program until the commission finds that
management of the crab fishery allows reissue of those licenses
through auction or lottery.
(d) The department shall set aside at least 20 percent of the
fee from commercial crab licenses and transfer fees to be used
only for the purpose of buying back commercial crab licenses from
a willing license holder. That money shall be sent to the
comptroller for deposit to the credit of the game, fish, and
water safety account.
(e) The department may accept grants and donations of money or
materials from private or public sources for the purpose of
buying back commercial crab licenses from a willing license
holder and shall send the accepted money or material to the
comptroller for deposit to the credit of the game, fish, and
water safety account to be used only for the purpose of buying
back commercial crab licenses from a willing license holder.
(f) Money to be used for the purpose of buying back commercial
crab licenses is not subject to Section 403.095, Government Code.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.112. PROGRAM ADMINISTRATION; RULES. (a) The executive
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 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.113. DISPOSITION OF FUNDS. Money received for a license
issued under this subchapter or fines for violations of this
subchapter shall be remitted to the department by the 10th day of
the month following the date of collection.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.114. PROCLAMATION; PROCEDURES. Subchapter D, Chapter
61, and Sections 61.054 and 61.055 apply to the adoption of
proclamations under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1256, Sec. 127, eff. Sept. 1,
1997.
Sec. 78.115. CRAB TRAPS; REMOVAL OF ABANDONED TRAPS. (a) In
this section, "abandoned crab trap" means a crab trap located in
the public water of this state that is designated as abandoned by
the commission beginning on the first day of a closed season
established by the commission under this section.
(b) The commission may establish a closed season for the use of
crab traps in the public water of this state. The commission by
rule shall designate the closed season as not less than 10 days
or more than 30 days between January 31 and April 1 in years
designated by the commission.
(c) The commission shall adopt rules to govern the removal and
disposal of abandoned crab traps as necessary to enhance:
(1) enforcement of this chapter;
(2) the cleanliness of the beds and bottoms of the public water
of this state;
(3) boating safety; and
(4) the conservation and management of crab resources.
(d) Abandoned crab traps are litter for purposes of Section
365.011, Health and Safety Code, and are subject to immediate
removal and disposal. An abandoned crab trap must be disposed of
in compliance with the Health and Safety Code. Section 12.1105
does not apply to the removal and disposal of an abandoned crab
trap under this section.
(e) A proclamation made by the commission under this section
prevails over a conflicting commission proclamation made under
Chapter 47, 61, or 66.
Added by Acts 2001, 77th Leg., ch. 278, Sec. 1, eff. Sept. 1,
2001. Amended by Acts 2003, 78th Leg., ch. 858, Sec. 1, eff. June
20, 2003.