PARKS AND WILDLIFE CODE
CHAPTER 78. MUSSELS, CLAMS, AND CRABS
SUBCHAPTER A. MUSSELS AND CLAMS
§ 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, § 1, eff. Sept. 1, 1993.
§ 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(f) Repealed by Acts 1995, 74th Leg., ch. 931, § 80, eff.
June 16, 1995.
Acts 1975, 64th Leg., p. 1405, ch. 545, § 1, eff. Sept. 1, 1975.
Renumbered from § 71.001 and 71.002 and amended by Acts 1993,
73rd Leg., ch. 741, § 1, eff. Sept. 1, 1993. Amended by Acts
1995, 74th Leg., ch. 931, § 76, 80, eff. June 16, 1995.
§ 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, § 1, eff. Sept. 1, 1975.
Amended by Acts 1993, 73rd Leg., ch. 741, § 1, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 931, § 77, eff. June 16, 1995.
§ 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, § 1, eff. Sept. 1, 1993.
§ 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, § 1, eff. Sept. 1, 1993.
§ 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, § 1, eff. Sept. 1, 1993.
§ 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, § 1, eff. Sept. 1, 1975.
Amended by Acts 1985, 69th Leg., ch. 267, art. 3, § 88, eff.
Sept. 1, 1985. Renumbered from § 78.004 and amended by Acts
1993, 73rd Leg., ch. 741, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. CRAB LICENSE MANAGEMENT
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 127, eff. Sept. 1,
1997.
§ 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, § 1, eff. Sept. 1, 2001.
Amended by Acts 2003, 78th Leg., ch. 858, § 1, eff. June 20,
2003.
