ATTACK OF THE KILLER OYSTERS

Will Texans soon find ourselves overrun by malicious mollusks, wicked whelks, or calumnious clams?

By Scott Henson

Grits for Breakfast
June 20, 2018

What counts as a separate crime may depend on the eye of the holder, and distinctions are inevitably subsumed within whatever (inevitably somewhat arbitrary) nomenclature and categorizations which drive the analysis.

To think about this, let's consider oyster-related felonies. A few years ago, Politifact fact-checked a statement I'd made that there were eleven felonies in Texas you could commit with an oyster. They rated it "Mostly True," commenting, "He could have said 16." But three of them appeared to be duplicates, so the reporter estimated 13. Politifact also found a lawyer from the Parks and Wildlife Department who said there were, broadly, seven distinct oyster felonies.

Which leads us to ask, how many felonies can Texans commit with an oyster under the Texas Legislative Council’s nomenclature? A measly 3!

What's going on? Has Texas suddenly gone soft on crustacean-related crime? How will the state respond to the threat of felonious bivalve behavior rising like a tide upon our shores? Will Texans soon find ourselves overrun by malicious mollusks, wicked whelks, or calumnious clams? Perhaps the Governor should respond with a DPS "surge" along the beaches on the Gulf?

Fear not! Two of the TLC's oyster categories are "certain oyster license offenses," and thus subsume multiple different violations which were spelled out in more detail in the other counts.

Indeed, when we speak of "license" violations, that gets us to the criminalization of regulatory violations, which are more common in the federal system but also something that occurs under Texas law.

Some of what's going on here may be explained by Texas' historical antipathy to business regulation. Nobody in the Legislature wants to create new government agencies or responsibilities, much less fund enforcement. So when business practices arise that they dislike, Texas legislators typically react by passing a criminal law that punishes business violators with the same sanctions faced by people who rape or rob.

Whether there are eleven felonies Texans can commit with an oyster ... Or sixteen. Or thirteen. Or seven. Or three ... matters less than the fact that there probably shouldn't be nearly so many criminal penalties related to shellfish at all.