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  84R6266 SLB-F
 
  By: Deshotel H.B. No. 3335
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of oyster resources.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 76.001, Parks and Wildlife Code, is
  amended by adding Subdivisions (1-a), (1-b), (1-c), (2-a), (4), and
  (5) and amending Subdivision (2) to read as follows:
               (1-a) "Cultivated oyster bed" means an oyster bed that
  is planted by a person for the purpose of oyster resources
  management, including the growing, transplanting, or harvesting of
  oysters.
               (1-b) "Location by the department" means the issuance
  by the department of a certificate that authorizes a locator to
  plant or cultivate an oyster bed on state-owned submerged land.
               (1-c) "Locator" means a person who holds a certificate
  of location issued by the department under Section 76.012.
               (2)  "Natural oyster bed" means an area that is not a
  cultivated oyster bed where at least five barrels of oysters are
  found within 2,500 square feet of any position on a reef or bed.
               (2-a) "Non-state-owned submerged land" means submerged
  land that has been conveyed to another person and to which the state
  does not hold title, including land described by Sections 76.004(a)
  and 76.022.
               (4)  "Private oyster bed" means an oyster bed that is:
                     (A)  located on land that is non-state-owned
  submerged land;
                     (B)  located on state-owned submerged land leased
  by a locator; or
                     (C)  a cultivated oyster bed, including a
  cultivated oyster bed on land subject to riparian rights under
  Section 76.004(b) or (c).
               (5)  "State-owned submerged land" has the meaning
  assigned by Section 11.0131(a), Natural Resources Code. The term
  does not include non-state-owned submerged land.
         SECTION 2.  Section 76.002, Parks and Wildlife Code, is
  amended to read as follows:
         Sec. 76.002.  [DESIGNATION OF] PUBLIC OYSTER [AND PRIVATE]
  BEDS. [(a)] All natural oyster beds that are not private oyster
  beds are public.
         [(b)  All oyster beds not designated as private are public.]
         SECTION 3.  Section 76.003, Parks and Wildlife Code, is
  amended to read as follows:
         Sec. 76.003.  BEDS SUBJECT TO LOCATION BY DEPARTMENT. (a)
  Except as otherwise provided by this section [in Section 76.004 of
  this code], an oyster bed or reef, other than a natural oyster bed,
  is subject to location by the department. This section does not
  apply to a bed or reef that has been exhausted within an eight-year
  period.
         (b)  An oyster bed or reef that is located on non-state-owned
  submerged land or on submerged land that is subject to the rights of
  a riparian owner under Section 76.004, is not subject to location by
  the department.
         SECTION 4.  Section 76.004, Parks and Wildlife Code, is
  amended by adding Subsection (d) to read as follows:
         (d)  A person who is a riparian owner with exclusive rights
  with respect to the use of a creek, bayou, lake, or cove under
  Subsection (a) or (b) is protected against trespass in the same
  manner as a freeholder. This subsection applies only as long as the
  owner clearly and distinctly marks the boundaries of the private
  oyster bed with buoys or other permanent markers easily visible
  above the surface of the water and maintains those markers in their
  correct positions.
         SECTION 5.  The heading to Section 76.006, Parks and
  Wildlife Code, is amended to read as follows:
         Sec. 76.006.  APPLICATION FOR LOCATION BY THE DEPARTMENT;
  FEE.
         SECTION 6.  Section 76.006(a), Parks and Wildlife Code, is
  amended to read as follows:
         (a)  An individual who is a [Any] citizen of the United
  States and a resident of this state or a domestic entity as that
  term is defined by the Business Organizations Code [any domestic
  corporation] may file a written application with the department for
  a certificate authorizing the applicant to [plant oysters and] make
  a private oyster bed in the public water of the state.
         SECTION 7.  Section 76.009(b), Parks and Wildlife Code, is
  amended to read as follows:
         (b)  If the location is subject to certification, the
  applicant [department] shall have the metes and bounds of the 
  location surveyed by a competent surveyor.
         SECTION 8.  Section 76.015, Parks and Wildlife Code, is
  amended to read as follows:
         Sec. 76.015.  RIGHTS OF LOCATOR. (a)  A person who is the 
  [The] holder of a certificate of location under [as provided for in]
  Section 76.012 [of this code] is protected in the person's [his]
  possession of the location described by the certificate against
  trespass in the same manner as are freeholders.
         (b)  This section applies only as long as the stakes or pipes
  and buoys required by this chapter are maintained in the [their]
  correct positions, easily visible above the surface of the water to
  mark the boundaries of the location as described by the certificate
  issued by the department under Section 76.012 [and the locator
  complies with the law and the regulations governing the fish and
  oyster industries].
         SECTION 9.  Sections 76.017(a) and (c), Parks and Wildlife
  Code, are amended to read as follows:
         (a)  A locator [The holder of a certificate of location]
  shall pay to the department the greater of $6 per acre of location
  per year or an amount set by the commission to rent the location
  under the certificate. [In lieu of that payment, the commission may
  set the required payment under this section in a greater amount.]
         (c)  A locator [The holder of a certificate] shall pay the
  department a late penalty fee equal to 10 percent of the amount due
  for any rental, transfer, sale, or renewal fee that is not paid when
  due.
         SECTION 10.  Section 76.018(b), Parks and Wildlife Code, is
  amended to read as follows:
         (b)  The commission shall determine renewal procedures to
  follow at the end of each lease term. The procedures must include:
               (1)  a determination that the lease renewal will be
  based on:
                     (A)  the need for depuration of polluted oysters;
                     (B)  consideration of whether the effect of the
  cultivated oyster bed on the habitat and ecosystem is beneficial;
  and
                     (C)  other considerations specified in the oyster
  management plan;
               (2)  payment of a $200 fee due on renewal of the lease;
               (3)  a condition that the current leaseholder will be
  offered a first right of refusal if the lease is renewed under this
  chapter; and
               (4)  any other conditions for the lease renewal that do
  not conflict with this chapter.
         SECTION 11.  Sections 76.021(a) and (f), Parks and Wildlife
  Code, are amended to read as follows:
         (a)  The oyster shell recovery and replacement program
  account is a separate interest-bearing account in the game, fish,
  and water safety account. The account consists of money deposited
  to the account under this section. The account is exempt from the
  application of Section 403.095, Government Code.
         (f)  The department shall consult with members of the oyster
  industry regarding the cultivation and management of oysters and
  oyster beds in this state.
         SECTION 12.  Subchapter A, Chapter 76, Parks and Wildlife
  Code, is amended by adding Sections 76.022 and 76.023 to read as
  follows:
         Sec. 76.022.  NAVIGATION DISTRICT LEASES FOR CREATION OF
  PRIVATE OYSTER BEDS. (a) In this section:
               (1)  "District-owned submerged land" means submerged
  land or flats conveyed to a navigation district, including by a
  conveyance under Article 8225, Revised Statutes.
               (2)  "Navigation district" has the meaning assigned to
  "district" by Section 60.001(1), Water Code. 
         (b)  A navigation district may lease district-owned
  submerged land for the creation of cultivated oyster beds and for
  the protection of natural oyster beds.
         (c)  The holder of a lease of submerged land under this
  section is protected against trespass in the same manner as a
  freeholder. This subsection applies only as long the lease holder
  clearly and distinctly marks the boundaries of the private oyster
  bed with buoys or other permanent markers easily visible above the
  surface of the water and maintains those markers in their correct
  positions.
         (d)  The holder of a lease under this section must obtain a
  permit under Subchapter B.
         (e)  Not later than the 30th day after the date a lease under
  this section is executed, the lease holder must provide the
  department with notice of the lease. 
         Sec. 76.023.  NON-STATE-OWNED SUBMERGED LAND. (a) The
  commission shall adopt rules to:
               (1)  promote the use of non-state-owned submerged land
  for oyster resource management; and
               (2)  in accordance with Nationwide Permit 48 issued by
  the United States Army Corps of Engineers or a substantially
  similar federal requirement, allow the discharge of dredged or fill
  material, the placement of structures, and any activities necessary
  for commercial shellfish aquaculture operations in authorized
  project areas, including restricted areas closed by the Department
  of State Health Services.
         (b)  The department may not collect a land lease fee for
  non-state-owned submerged land.
         (c)  The department may set fees for the administration of
  this section in an amount not to exceed the administrative costs
  directly associated with administering this section. The
  department may reduce the amount of a fee to account for the habitat
  and ecosystem benefits provided by cultivated oyster beds on
  non-state-owned submerged land.
         SECTION 13.  Sections 76.031(b) and (c), Parks and Wildlife
  Code, are amended to read as follows:
         (b)  Only an individual [those persons] who is a citizen of
  the United States and a resident [are citizens] of this state
  [Texas] or a domestic entity as that term is defined by the Business
  Organizations Code [corporations composed of American citizens and
  chartered by this state to engage in the culture of oysters or to
  transact business in the purchase and sale of fish and oysters] may
  apply for a permit.
         (c)  The application must:
               (1)  state the purpose for taking oysters; and
               (2)  specify:
                     (A)  [give] the quantity of oysters to be taken
  from specified [designated] areas;
                     (B)  the start and end dates for the taking and
  transplanting of oysters;
                     (C)  the areas from which the oysters will be
  taken; and
                     (D)  the area where the oysters will be deposited
  as described:
                           (i)  by a certificate of location issued
  under Section 76.012; or
                           (ii)  in writing by a person who owns or
  leases a private oyster bed.
         SECTION 14.  Section 76.032, Parks and Wildlife Code, is
  amended to read as follows:
         Sec. 76.032.  DISCRETION TO ISSUE PERMIT. The department
  may issue or refuse to issue a permit to any applicant. If the
  department refuses to issue a permit, the department must show good
  cause for the refusal in a written order that demonstrates using
  sound biological data that the issuance of the permit would cause
  harm to human health, the environment, or natural resources.
         SECTION 15.  Section 76.033(b), Parks and Wildlife Code, is
  amended to read as follows:
         (b)  The department shall:
               (1)  mark off the exact area of beds or reefs from which
  oysters may be taken;
               (2)  designate the bottoms on which oysters may be
  deposited if they are taken to be prepared for market;
               (3)  require the permittee to cull the oysters on the
  grounds from which [where] they are taken [to be located]; and
               (4)  specify what implements may be used in taking
  oysters from oyster beds that are not private oyster beds.
         SECTION 16.  Section 76.035, Parks and Wildlife Code, is
  amended to read as follows:
         Sec. 76.035.  OYSTERS PROPERTY OF PERMITTEE. All oysters
  taken, [or] deposited, or cultivated in public water by the holder
  of an oyster permit under the terms of a permit are the personal
  property of the permit holder.
         SECTION 17.  Section 76.037, Parks and Wildlife Code, is
  amended to read as follows:
         Sec. 76.037.  THEFT OF OYSTERS FROM PRIVATE BED. No person
  may [fraudulently] take oysters from a [placed on] private oyster
  bed [beds] without the consent of the owner of the private bed or
  from an oyster bed [beds] or deposit [deposits] made for the purpose
  of preparing oysters for market without the consent of the owner of
  the oysters who lawfully deposited them.
         SECTION 18.  Section 76.039, Parks and Wildlife Code, is
  amended by adding Subsection (c) to read as follows:
         (c)  Subsection (a) applies only to the gathering of oysters
  from an area declared prohibited under Section 436.091, Health and
  Safety Code.
         SECTION 19.  Section 76.116(b), Parks and Wildlife Code, is
  amended to read as follows:
         (b)  The department may authorize by permit the
  transplanting of oysters from restricted areas or other areas
  designated by the department to private oyster beds [leases].
         SECTION 20.  Section 76.301, Parks and Wildlife Code, is
  amended by amending Subsections (a) and (d) and adding Subsection
  (h) to read as follows:
         (a)  Except as provided by Subsection (h), the [The]
  commission by proclamation may regulate the taking, possession,
  purchase, and sale of oysters. A proclamation issued under this
  section must contain findings by the commission that support the
  need for the proclamation.
         (d)  Except as provided by Subsection (h), a [A] proclamation
  of the commission under this section prevails over:
               (1)  any conflicting provision of Subchapter A, B, or C
  of this chapter to the extent of the conflict; and
               (2)  a proclamation of the commission issued under the
  Wildlife Conservation Act of 1983 (Chapter 61 of this code).
         (h)  The commission may not make a proclamation regulating
  the taking from or possession, purchase, or sale of oysters taken
  from non-state-owned submerged land that conflicts with Subchapter
  A, B, or C.
         SECTION 21.  (a)  The change in law made by this Act applies
  only to an offense committed on or after the effective date of this
  Act. An offense committed before the effective date of this Act is
  governed by the law in effect on the date the offense was committed,
  and the former law is continued in effect for that purpose. For
  purposes of this section, an offense was committed before the
  effective date of this Act if any element of the offense occurred
  before that date.
         (b)  Section 76.022, Parks and Wildlife Code, as added by
  this Act, applies to a lease for district-owned submerged land for
  the creation of cultivated oyster beds or for the protection of
  natural oyster beds, regardless of when the lease was executed.
         SECTION 22.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2015.