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2005 Texas Parks and Wildlife Code CHAPTER 76. OYSTERS
PARKS AND WILDLIFE CODE SUBTITLE D. CRUSTACEANS AND MOLLUSKS CHAPTER 76. OYSTERS SUBCHAPTER A. PUBLIC AND PRIVATE OYSTER BEDS § 76.001. NATURAL OYSTER BED. (a) A natural oyster bed exists when at least five barrels of oysters are found within 2,500 square feet of any position on a reef or bed. (b) In this section, a barrel of oysters is equal to three boxes of oysters in the shell. 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. Two gallons of shucked oysters without shells equals one barrel of oysters in the shell. Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 2, § 65, eff. Sept. 1, 1985. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 2001, 77th Leg., ch. 968, § 41, eff. Sept. 1, 2001. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1979, 66th Leg., p. 908, ch. 416, § 2, eff. Aug. 27, 1979; Acts 1983, 68th Leg., p. 1338, ch. 277, § 46, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 267, art. 2, § 66, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 448, § 1, eff. Jan. 1, 1990; Acts 2001, 77th Leg., ch. 968, § 42, eff. Sept. 1, 2001. § 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, § 43, eff. Sept. 1, 2001. § 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, § 43, eff. Sept. 1, 2001. § 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, § 1, eff. Aug. 26, 1991.SUBCHAPTER B. OYSTER PERMITS § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. § 76.036. MARKING BEDS. (a) The holder of a permit shall clearly and distinctly mark by buoys 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, § 1, eff. Sept. 1, 1975. Amended by Acts 2001, 77th Leg., ch. 968, § 44, eff. Sept. 1, 2001. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, § 80, eff. Sept. 1, 1985. § 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, § 110, eff. Sept. 1, 1985. Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, § 110, eff. Sept. 1, 1985. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, § 81, eff. Sept. 1, 1985. § 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, § 82, eff. Sept. 1, 1985.SUBCHAPTER C. OYSTER LICENSES § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1989, 71st Leg., ch. 255, § 2, eff. July 31, 1989; Acts 1993, 73rd Leg., ch. 365, § 16, eff. Sept. 1, 1993. § 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, § 3, eff. July 31, 1989. Amended by Acts 1993, 73rd Leg., ch. 365, § 17, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 450, § 26, eff. Sept. 1, 1993. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1981, 67th Leg., p. 548, ch. 229, § 1, eff. Aug. 31, 1981; Acts 1989, 71st Leg., ch. 255, § 4, eff. July 31, 1989; Acts 1993, 73rd Leg., ch. 365, § 18, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 931, § 69, eff. June 16, 1995. § 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, § 19, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 931, § 70, eff. June 16, 1995; Acts 1997, 75th Leg., ch. 1256, § 114, eff. Sept. 1, 1997. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1983, 68th Leg., p. 1338, ch. 277, § 47, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 267, art. 2, § 67, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 621, § 4, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 255, § 5, eff. July 31, 1989; Acts 1993, 73rd Leg., ch. 365, § 20, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 931, § 71, eff. June 16, 1995. § 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, § 6, eff. July 31, 1989. Amended by Acts 1993, 73rd Leg., ch. 365, § 21, eff. Sept. 1, 1993. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1989, 71st Leg., ch. 255, § 8, eff. July 31, 1989; Acts 1993, 73rd Leg., ch. 365, § 23, eff. Sept. 1, 1993. § 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, § 1, eff. Sept. 1, 1975. § 76.112. OYSTER SIZE LIMITS. (a) Repealed by Acts 1997, 75th Leg., ch. 1256, § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1997, 75th Leg., ch. 1256, § 130, eff. Sept. 1, 1997. § 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, § 1, eff. Sept. 1, 1975. § 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, § 1, eff. Sept. 1, 1975. Amended by Acts 1975, 64th Leg., p. 1220, ch. 456, § 18, eff. Sept. 1, 1975. § 76.116. OYSTERS FROM RESTRICTED AREAS. (a) There is no open season for taking oysters from areas closed by the Texas Department of Health. (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, § 1, eff. Sept. 1, 1975. Amended by Acts 1989, 71st Leg., ch. 255, § 10, eff. July 31, 1989; Acts 1997, 75th Leg., ch. 1256, § 115, eff. Sept. 1, 1997. § 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, § 1, eff. Sept. 1, 1975. § 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, 76.109, or 76.116 of this code 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 at the same time violates Section 76.109 and either Section 76.116 or Section 76.205 of this code 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, 76.109, or 76.116 of this code that the defendant has been convicted once 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 Class A Parks and Wildlife Code misdemeanor. (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, § 1, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 267, art. 3, § 83, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 255, § 11, eff. July 31, 1989. § 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 of this subchapter, 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, § 12, eff. July 31, 1989.SUBCHAPTER E. OYSTER REGULATIONS § 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, § 1, eff. June 14, 1985. § 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, § 1, eff. June 14, 1985.SUBCHAPTER F. OYSTER LICENSE MORATORIUM § 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, § 1, eff. May 20, 2005. § 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, § 1, eff. May 20, 2005. § 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, § 1, eff. May 20, 2005. § 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, § 1, eff. May 20, 2005. § 76.405. REPORT OF PROGRAM STATUS.Text of section effective until September 1, 2010 (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, § 1, eff. May 20, 2005.
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