|
|
|
|
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 |