H.B. No. 51
AN ACT
relating to regulation of the commercial oyster industry in this
state; increasing criminal penalties; authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 76, Parks and Wildlife
Code, is amended by adding Section 76.0205 to read as follows:
Sec. 76.0205. SUSTAINABILITY OF OYSTER INDUSTRY. (a) In
order to enhance the viability of commercial oyster fishing and
ensure the sustainability of the oyster industry to accommodate the
highest number of commercial oyster fishing boats, a person who
purchases oysters under Section 47.0091 and holds a shellfish
certificate, as defined by Section 436.002, Health and Safety Code,
must:
(1) distribute, in an area designated by the
department, oyster shells or other cultch material approved by the
department in an amount equal to not less than 30 percent of the
total volume of oysters purchased by the person in the previous
license year; or
(2) pay a fee to the department in an amount calculated
under Subsection (c).
(b) The distribution of oyster shells or other cultch
material must be directly supervised by an agent or employee of the
department.
(c) The department shall calculate the current market cost
of the acquisition and deposition of cultch material on a per cubic
yard basis. The fee charged under Subsection (a)(2) is the market
cost established under this subsection multiplied by 30 percent of
the total volume of oysters purchased by the person in the previous
license year. The fee charged under this section shall be deposited
to the credit of the oyster shell recovery and replacement program
account.
(d) A person who possesses oysters that do not meet the
requirements of Section 76.112:
(1) shall replace the oysters in the beds from which
they were taken as directed by an authorized employee of the
department; and
(2) is subject to any penalty and must perform any
remedy authorized by law.
SECTION 2. Sections 76.101(b) and (d), Parks and Wildlife
Code, are amended to read as follows:
(b) No [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, without the use of a boat, 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.
(d) Each member of the [The captain and] crew of a licensed
commercial oyster boat is [are not] required to have a general
commercial [oyster] fisherman's license [licenses] to take oysters
while they are on a licensed boat that is being used to take
oysters.
SECTION 3. Section 76.118, Parks and Wildlife Code, is
amended by amending Subsection (a) and adding Subsections (e-2),
(e-3), (e-4), and (e-5) to read as follows:
(a) Except as provided in Subsections (b), [and] (c), (e-2),
and (e-3) [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.
(e-2) The punishment for an offense otherwise punishable
under Subsection (a) is a Class B Parks and Wildlife misdemeanor if
it is shown on the trial of the offense that:
(1) the defendant is the captain of a commercial
oyster boat or a member of the crew of a commercial oyster boat;
(2) the provision or regulation violated relates to
oyster size; and
(3) the defendant has previously been convicted at
least twice for a violation of a provision or regulation relating to
oyster size.
(e-3) The punishment for an offense otherwise punishable
under Subsection (a) is a Class C Parks and Wildlife misdemeanor,
with an attendant license suspension under Section 76.1181, if it
is shown on the trial of the offense that:
(1) the defendant is the captain of a commercial
oyster boat or a member of the crew of a commercial oyster boat;
(2) the provision or regulation violated relates to
oyster size and the defendant was in possession of a cargo of
oysters in which 30 percent or more of the oysters measured less
than three inches in length along an imaginary straight line
through the long axis of the shell; and
(3) the defendant has previously been convicted one
time for a violation of a provision or regulation relating to oyster
size and the defendant was in possession of a cargo of oysters in
which 30 percent or more of the oysters measured less than three
inches in length along an imaginary straight line through the long
axis of the shell.
(e-4) The punishment for an offense otherwise punishable
under Subsection (a) is a Class B Parks and Wildlife misdemeanor,
with an attendant license suspension under Section 76.1181, if it
is shown on the trial of the offense that:
(1) the defendant is the captain of a commercial
oyster boat or a member of the crew of a commercial oyster boat;
(2) the provision or regulation violated relates to
oyster size and the defendant was in possession of a cargo of
oysters in which 30 percent or more of the oysters measured less
than three inches in length along an imaginary straight line
through the long axis of the shell; and
(3) the defendant has previously been convicted at
least two times for a violation of a provision or regulation
relating to oyster size and the defendant during both offenses was
in possession of a cargo of oysters in which 30 percent or more of
the oysters measured less than three inches in length along an
imaginary straight line through the long axis of the shell.
(e-5) It is a defense to prosecution under Subsection (a)
for a violation of a statute or regulation adopted relating to
oyster size that the defendant is a person who purchased oysters
from the captain or a member of the crew of a commercial oyster boat
and the purchaser was in possession of a cargo of oysters in which
less than 30 percent of the oysters were less than three inches in
length along an imaginary straight line through the long axis of the
shell.
SECTION 4. Subchapter C, Chapter 76, Parks and Wildlife
Code, is amended by adding Section 76.1181 to read as follows:
Sec. 76.1181. SUSPENSION OF LICENSE. (a) For purposes of
this section, "final conviction" includes a plea of guilty or nolo
contendere to or the imposition of deferred adjudication for an
offense.
(b) On final conviction for an offense punishable under
Section 76.118(e-3) or (e-4), the commercial oyster boat license of
the boat used in the commission of the violation is suspended for 30
days.
(c) On final conviction for an offense punishable under
Section 76.118(e-3) or (e-4), the commercial oyster boat captain's
license of the captain of the boat used in the commission of the
violation is suspended for 30 days. During the period of
suspension, the holder of the suspended license may not purchase a
general commercial fisherman's license or a commercial oyster
fisherman's license.
(d) On final conviction for an offense punishable under
Section 76.118(e-3) or (e-4), the general commercial fisherman's
license of a member of the crew of a boat on which the violation was
committed is suspended for 30 days. During the suspension period,
the holder of the suspended license may not purchase a commercial
oyster boat captain's license or a commercial oyster fisherman's
license.
(d-1) On final conviction for an offense punishable under
Section 76.118(e-3) or (e-4), the commercial oyster fisherman's
license of the person who takes or attempts to take oysters without
the use of a boat is suspended for 30 days.
(e) On final conviction for the third offense within five
years of the commission of an offense punishable under Section
76.118, for a violation of a provision or regulation relating to
oyster size in which the conviction was for possession of a cargo of
oysters in which 30 percent or more of the oysters measured less
than three inches in length along an imaginary straight line
through the long axis of the shell, any license issued by the
department to a person that purchases oysters is suspended for 30
days. During the suspension period, the holder of the suspended
license may not purchase a license issued by the department
allowing the taking or purchase of oysters.
(f) A suspension period described by this section must be
served during the public oyster season in which the violation
occurred, unless less than 30 days remain in the public oyster
season, in which case the suspension must be served at the beginning
of the next public oyster season.
SECTION 5. Section 76.119, Parks and Wildlife Code, is
amended by amending Subsection (a) and adding Subsections (c) and
(d) to read as follows:
(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, 76.112, or
76.116, in which case each person on the vessel is responsible for
the violation.
(c) The captain of a vessel licensed as a commercial oyster
boat shall identify the name of the captain, the vessel, and each
member of the crew to each purchaser of oysters.
(d) A person who purchases oysters under Section 47.0091,
who holds a shellfish certificate as defined by Section 436.002,
Health and Safety Code, and who purchases oysters from a captain of
a vessel licensed as a commercial oyster boat, the holder of a
commercial oyster boat license, or a member of the crew of a
commercial oyster boat in violation of Section 76.109 or 76.112 or
this section may not possess the oysters and is subject to any
penalty prescribed by law.
SECTION 6. Section 76.301, Parks and Wildlife Code, is
amended by amending Subsections (c) and (f) and adding Subsection
(h) to read as follows:
(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.]
(f) A person who violates a proclamation issued under
[Subsection (a) of] this subchapter [section] commits an offense
that is a Parks and Wildlife Code Class C misdemeanor. [An offense
under this section is punishable by a fine of not less than $25 nor
more than $200.]
(h) A proclamation of the commission under this section
applies to any person who:
(1) purchases oysters from the captain of a commercial
oyster boat, the holder of a commercial oyster boat license, or a
member of the crew of a commercial oyster boat;
(2) purchases oysters under Section 47.0091; and
(3) holds a shellfish certificate, as defined by
Section 436.002, Health and Safety Code.
SECTION 7. Subchapter E, Chapter 76, Parks and Wildlife
Code, is amended by adding Section 76.304 to read as follows:
Sec. 76.304. VESSEL MONITORING SYSTEM. (a) The commission
by proclamation may establish a vessel monitoring system for
commercial oyster boats.
(b) Before the commission issues a proclamation under
Subsection (a), the department shall consult with commercial oyster
boat license holders concerning establishment of a vessel
monitoring system.
SECTION 8. Subchapter F, Chapter 76, Parks and Wildlife
Code, is amended by adding Sections 76.405, 76.406, and 76.407 to
read as follows:
Sec. 76.405. LICENSE BUYBACK PROGRAM. (a) The department
shall implement a license buyback program for licenses issued under
this subchapter as part of the oyster license moratorium program
established by this subchapter.
(b) The commission by rule shall establish criteria, using
reasonable classifications, for the department's use in selecting
licenses to be purchased. The department or executive director
shall consult with the oyster license moratorium review board
concerning establishment of the criteria.
(c) The department shall retire each license purchased
under the license buyback program until the commission finds that
management of the oyster fishery allows reissue of those licenses
through auction or lottery.
(d) The department shall set aside an amount determined by
commission rule that is at least 20 percent of the fees from
licenses issued under this subchapter to be used only for the
purpose of buying back commercial oyster boat licenses from willing
license holders. 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 solicit and accept grants and
donations of money or materials from private or public sources for
the purpose of buying back licenses issued under this subchapter
from willing license holders.
(f) Money to be used for the purpose of buying back licenses
issued under this subchapter is not subject to Section 403.095,
Government Code.
(g) The commission shall consider the social and economic
viability of the oyster industry and input from the oyster license
moratorium review board regarding the reissue of commercial oyster
boat licenses through auction or lottery.
Sec. 76.406. PREVAILING AUTHORITY. A proclamation of the
commission under this subchapter prevails over any conflicting
provision of this chapter to the extent of the conflict.
Sec. 76.407. REPORT TO LEGISLATURE. (a) Not later than
November 1, 2020, the department shall report to the governor and
each member of the legislature an overview of the administration
and status of the oyster license buyback program, including the
biological, sociological, and economic effects of the program.
(b) This section expires September 1, 2021.
SECTION 9. The Parks and Wildlife Commission shall adopt
any rules required to implement Sections 76.405, 76.406, and
76.407, Parks and Wildlife Code, as added by this Act, not later
than June 1, 2018.
SECTION 10. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2017.
(b) Sections 76.405, 76.406, and 76.407, Parks and Wildlife
Code, as added by this Act, take effect June 1, 2018.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 51 was passed by the House on April
26, 2017, by the following vote: Yeas 131, Nays 17, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 51 on May 24, 2017, by the following vote: Yeas 119, Nays 25, 2
present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 51 was passed by the Senate, with
amendments, on May 21, 2017, by the following vote: Yeas 21, Nays
10.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor