Email, response to PolitiFact Texas, Brandi Reeder, assistant commander, fisheries law administrator, Texas Parks & Wildlife Department, March 20, 2013

11:55 pm

The Texas Parks and Wildlife Code has 6  oyster related statutes that enhance from a misdemeanor to a felony charge with repeated violations.  As we spoke about earlier this evening, statutes were put in place for a reason, the reason we have felonies for oyster violations is to ensure public safety.  Oysters pose a potentially severe health risk to the public, as such, should be regulated closely provide the best chance for a disease free product to be supplied to consumers. Note, I have provided TPW Code and HS Code statutes that relate to oysters, I have also responded in the original content of the email you supplied where I listed the appropriate cites.  If you should need any other information please feel free to contact me.  Thank you.

Assistant Commander Brandi L. Reeder

Fisheries Law Administrator

LE Special Operations

Texas Parks & Wildlife Department

Law Enforcement Division

"Texas Game Wardens Serving Texans Since 1895 - Law Enforcement Off the Pavement"

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. 76.037.  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.

(c)  Repealed by Acts 1985, 69th Leg., ch. 267, art. 3, Sec. 110, eff.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. 76.040.  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, 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.

(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, 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. 76.107.  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. 76.116.  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.

(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, 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. 76.118.  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.

(c)  A person who violates Section 76.116, or at the same time 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.

HEALTH AND SAFETY CODE

TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES

SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS

CHAPTER 436. AQUATIC LIFE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 436.002.  DEFINITIONS.  In this chapter:

     (6)  "Closed area" means a molluscan shellfish growing area where the taking including the harvesting for sale, the harvesting for transplant, or the gathering for depuration of molluscan shellfish is temporarily or permanently not permitted.  A closed area status may be placed on any one of the five classified area designations established by the National Shellfish Sanitation Program

(27)  "Prohibited area" means an area where the director finds, according to a sanitary, chemical, or bacteriological survey, that the area contains aquatic life that is unfit for human consumption.  A prohibited area for molluscan shellfish means a molluscan shellfish growing area determined to be unacceptable for transplanting, gathering for depuration, or harvesting of molluscan shellfish.  The only molluscan shellfish removal permitted from a prohibited area is for the purpose of depletion.

(30)  "Restricted area" means a molluscan shellfish growing area that is determined to be unacceptable for harvesting of molluscan shellfish for direct marketing but that is acceptable for transplanting or gathering for depuration.  A restricted area may be closed for transplanting or gathering for depuration when the area does not meet the restricted area criteria established by the National Shellfish Sanitation Program.

SUBCHAPTER B. PROHIBITED ACTS

Sec. 436.011.  PROHIBITED ACTS.  The following acts and the causing of the following acts within this state are unlawful and prohibited:

(1)  taking, selling, offering for sale, or holding for sale molluscan shellfish from a closed area;

(2)  taking, selling, offering for sale, or holding for sale molluscan shellfish from a restricted or conditionally restricted area without complying with a rule adopted by the board to ensure that the molluscan shellfish have been purified, unless:

(A)  permission is first obtained from the Parks and Wildlife Department and the transplanting is supervised by that department;  and

(B)  the Parks and Wildlife Department furnishes a copy of the transplant permit to the director before transplanting activities begin;

(3)  possessing a species of aquatic life taken from a prohibited area while the area was prohibited for that species;

(4)  operating as a molluscan shellfish processor without a shellfish certificate for each plant or place of business;

(5)  operating as a crabmeat processor without a crabmeat processing license for each plant;

(6)  selling, offering for sale, or holding for sale molluscan shellfish or crabmeat that has not been picked, handled, packaged, or pasteurized in accordance with the rules adopted by the board;

(7)  selling, offering for sale, or holding for sale molluscan shellfish or crabmeat from facilities for the handling and packaging of molluscan shellfish or crabmeat that do not comply with the rules adopted by the board;

(8)  selling, offering for sale, or holding for sale molluscan shellfish or crabmeat that is not labeled in accordance with the rules adopted by the board;

(9)  selling, offering for sale, or holding for sale molluscan shellfish that is not in a container bearing a valid certificate number from a state or nation whose molluscan shellfish certification program conforms to the current Manual of Operations for Sanitary Control of the Shellfish Industry issued by the Food and Drug Administration or its successor, except selling molluscan shellfish removed from a container bearing a valid certificate number for on-premises consumption;  in the event the Texas Molluscan Shellfish Program is found to be out of conformity with the current Manual of Operations, selling, offering for sale, or holding for sale molluscan shellfish in a container bearing a valid Texas certificate number shall not be considered a violation of this chapter provided all other requirements of this chapter are complied with and the shellfish have come from an approved source;

(10)  processing, transporting, storing for sale, possessing with intent to sell, offering for sale, or selling molluscan shellfish or crabmeat for human consumption that is adulterated or misbranded;

(11)  removing or disposing of a detained or embargoed article in violation of Section 436.028;

(12)  altering, mutilating, destroying, obliterating, or removing all or part of the labeling of a container;

(13)  adulterating or misbranding molluscan shellfish or crabmeat in commerce;

(14)  refusing to permit entry or inspection, to permit the taking of a sample, or to permit access to or copying by an authorized agent of a record required by this chapter;

(15)  failing to establish or maintain a record or report required by this chapter or by a rule adopted by the board;  or

(16)  violating a rule adopted by the board or an emergency rule or order adopted by the director.

Amended by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1, 1993.

Sec. 436.038.  CRIMINAL PENALTY;  DEFENSES.  (a)  A person commits an offense if the person intentionally, knowingly, recklessly, or with criminal negligence commits an unlawful act under Section 436.011.

(b)  A violation of Section 436.011(1), (2), or (3) is a Class B Parks and Wildlife Code misdemeanor under Section 12.405, Parks and Wildlife Code.  Each day of a continuing violation constitutes a separate offense.  Commissioned officers of the Parks and Wildlife Department shall enforce Sections 436.011(1), (2), and (3).

(c)  If it is shown at trial that the defendant has been convicted once within five years before the trial date of a violation of Section 436.011(1) or (2), a violation by the defendant under Section 436.011(1) or (2) is a Class A Parks and Wildlife Code misdemeanor under Section 12.404, Parks and Wildlife Code.

(d)  If it is shown at trial that the defendant has been convicted two or more times within five years before the trial date of a violation of Section 436.011(1) or (2), a violation by the defendant under Section 436.011(1) or (2) is a Parks and Wildlife Code felony under Section 12.407, Parks and Wildlife Code.

(e)  A violation of Section 436.011(4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) is a Class A misdemeanor.  Each day of a continuing violation constitutes a separate offense.

(f)  A person is not subject to the penalties of Subsection (e) if the person received molluscan shellfish or crabmeat in commerce and delivered or offered to deliver the molluscan shellfish or crabmeat in good faith, unless the person refuses to furnish on request of the director, an authorized agent, or a health authority the name and address of the person from whom the product was received and copies of any documents relating to the receipt of the product.

(g)  A publisher, radiobroadcast licensee, or agency or medium for the publication or broadcast of an advertisement, except the harvester, processor, distributor, or seller of molluscan shellfish or crabmeat to which a false advertisement relates, is not liable under this section for the publication or broadcast of the false advertisement unless the person has refused to furnish, on the request of the director, the name and address of the harvester, processor, distributor, seller, or advertising agency residing in this state who caused the person to publish or broadcast the advertisement.

(h)  A person is not subject to the penalties of Subsection (e) for a violation of Section 436.011 involving misbranded molluscan shellfish or crabmeat if the violation exists only because the product is misbranded because of a mistake in advertising, unless the violation is committed with intent to defraud or mislead.

Added by Acts 1993, 73rd Leg., ch. 336, Sec. 1, eff. Sept. 1, 1993.

From: Selby, Gardner (CMG-Austin) [mailto:wgselby@statesman.com]

Sent: Wednesday, March 20, 2013 6:17 PM

To: Brandi Reeder

Subject: Counting oyster related felonies

1)PWC 76.037 -THEFT OYSTERS FROM PRIVATE BED 3RD (streeter, third offense; starts off as class b misd; after two or more, goes felony)

2)PWC 76.037 -THEFT OYSTERS FROM PRIVATE BED 3RD (duplication; may be worded diffly)

3)PWC 76.037 -THEFT OYSTERS FROM PRIVATE BED 2+PREV CONV (wording difference again; look on tpwd site, go to other, game warden links, options, p and w statutes, chapter 76, 76.118 lists penalties, 76.040 has penalties theft from private bed, buoys and markers, both enhanceable, starts off as class b etc)

4)PWC 76.038 -INTERFERE W/OYSTER BOUY/MARKER +2 PREV CONV (2 plus convictions gets you out of misd land)

5)PWC 76.116 - OYSTER RESTRICTED AREAS 3RD (restricted areas, delineated by health dept, natural runoff, closed to protect public health)

6)PWC 76.109 - NIGHT DREDGING OF OYSTERS 3RD (we have a time lawful for harvest; used to be daytime hours; now closes at 330 pm, still opens at sunrise; changed last year; Tx D of H, we work in partnership; temperature control)

7)PWC 76.116 and PWC 76.109 violation occurrence at the same time enhanced - NIGHT DREDGING OYSTERS POLLUTED AREA ENH (polluted waters)

8)PWC 76.101 - OYSTER LICENSE REQUIRED 3RD (76.011, starts off as misd; if recreationally fishing, need recreational fishing license and sport oyster boat license if using tongs or dredge)

9)PWC 76.101 – “ Oyster License Required” same cite as #8 but different subsection HARVEST OYSTERS NON-COMM PURP W/O LIC 3RD (?)- not sure what the instance was there.

10)PWC 76.101- Oyster License Required -HARVEST OYSTERS W/O COMMERCIAL LIC 3RD (harvesting; need a license; by a vessel, commercial oyst boat license and person running boat must have a captain’s license, issued by tpwd)

11)PWC 76.107 - SALE OF SPORT OYSTERS PROHIBITED 3RD (someone recreationally harvesting, selling; starts as misdemeanor)

12)PWC 76.116 -OYSTER RESTRICTED AREAS 3RD (same as prohibited, little bit of difference)

13)PWC 76.109 -NIGHT DREDGING OF OYSTERS 3RD (starts off as misd)

14)OYSTER REGULATIONS 2+ PREV CONV (?)????? I think this may have been filed under Health & Safety Code because it doesn’t fit our arrest titles.

15)PWC 76.116 - OYSTER RESTRICTED AREA PREV CONV (health dept stuff) closed area regardless

16)PWC 76.116 occurrence at the same time as PWC 76.109 OYSTER NIGHT DREDGING/RESTRICTED AREA PREV CON (both happened, misd goes to felony)

I apologize if the colors are atrocious, I tried to show the pairings when I ran out of colors for pairing #7 and #16.  By arrest titles, I count 7 different charges.  Our charges begin as misdemeanors, then enhance with repeated offenses. As you noted, when comparing #1,2,3 there is no difference in the arrest title itself, only a difference in the phrasing for what number of offense was associated.   8,9,10 would all fall under the same arrest title, detail has been provided for prosecution with phrasing.