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