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Statutes > Texas > Parks-and-wildlife-code > Title-5-wildlife-and-plant-conservation > 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.

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.

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.

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.

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.

(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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Added by Acts 2005, 79th Leg., Ch.

104, Sec. 1, eff. May 20, 2005.