Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
June 24, 1988
Honorable Roy Blake Opinion No. JM-922
Chairman
Senate Administration Re: Whether commercial feed lots
Texas State Senate are subject to the Texas Feed
P. 0. Box 12068 Control Act of 1957 (RQ-1314)
Austin, Texas 78769
Honorable Bill Haley
Chairman
Public Education Committee
Texas House of Representatives
P. 0. BOX 2910
Austin, Texas 78722
Gentlemen:
You ask that we examine Attorney General Opinions C-105
(1963) and H-895 (1976) to determine whether they correctly
decided that commercial feed lots are not subject to the
Texas Commercial Feed Control Act of 1957.
The Texas Commercial Feed Control Act of 1957l was
enacted to Drotect the DUrChaSerS of feed. In setting out
the public necessity for the act in the emergency clause,
the legislature noted:
The fact that present laws are not ade-
quate to regulate the manufacture and sale of
commercial feed in Texas; the fact that
1. The act was originally found at article 3881e,
V.T.C.S., but is now codified as chapter 141 of the
Agriculture Code. The act has been amended only once. Acts
1977, 65th Leg., ch. 641 at 1629. That amendment, relating
to the inspection fee provided by the act, has no bearing on
what transactions are covered by the act. Revision of the
act as chapter 141 of the Agriculture Code was without
substantive change. Agric. Code. 5 1.001.
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Honorable ROY Blake
Honorable Biil Halev
Page - 2 (JM-922)-
raisers in Texas of livestock, poultry, and
other animals need uniform guaranties and
labeling of feeds which are offered to them:
and the further fact that it would be of
great material advantage to have the laws of
Texas conform insofar as practicable with the
present-day practices of feeders and feed
manufacturers, and to afford maximum protec-
tion to the purchasers of feed, create an
emergency and imperative public necessity
. . . .
Acts 1957, 55th Leg., ch. 23, § 21 at 46.
Six years after the passage of the act, the attorney
general was called upon to advise whether the act's
provisions apply to a commercial feed lot that contracts
with the owner of stock to keep and feed the stock at the
feed lot. Attorney General Opinion C-105 (1963) determined
that it did not. The basis for the holding in C-105 is that
rather than selling feed to a purchaser, a commercial feed
lot performs a service, the keeping of stock, for which
feeding is incidental. In traditional terms, feed lot oper-
ators are engaged in "agistment," the bailment of animals
for the purpose of grazing and pasturing. See Barclav v.
Burce, 245 S.W.2d 1021 (Tex. Civ. App. - Beaumont 1952, no
writ). The distinction between sale and service separates
those who are subject to the act from those who are not.
Feeding animals as part of agistment is not "distributing
feed" within the meaning of the Texas Commercial Feed
Control Act of 1957.
The distinction between sale and service is often in-
exact. In this context, however, when the distinction as
applied is considered against the background of the act's
policy, it stands to reason. As set out in the act's emer-
gency clause, the policy behind the act is to protect the
purchasers of feed. When a rancher buys feed to give
directly to his own stock, he is protected as a purchaser by
the act. When a rancher contracts with a feed lot to keep
and feed his stock, he is not protected by the act, since he
is not a purchaser, but he is protected under the law of
agistment as a bailor. If the stock is damaged, the burden
of proof is upon the feed lot as bailee to show that the
damage was not caused by negligence on the feed lot's part.
Barclav v. Burse, 245 S.W.Zd at 1022-23. so the
sale-service distinction as applied is consistent with the
policy behind the act.
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Honorable Roy Blake
Honorable Bill Haley
Page - 3 (JM-922)
Although this may be a close question, we are not
interpreting the act for the first time. In the quarter of
a century that has passed since Attorney General Opinion
C-105 was issued, no court has rejected this office's
interpretation of the act, and the legislature has not
amended the act so as to make clear any intention to cover
commercial feed lots. We view this legislative inaction as
dispositive of this question of statutory interpretation.
Since 1963 the legislature has met in regular session
fifteen times. By failing to amend this act, the
legislature has sanctioned the construction set out in
Attorney General Opinion C-105.
Our conclusion, however, is supported by more than this
twenty-five year failure to amend the act. In 1976, at the
behest of the House Agriculture and Livestock Committee,
this office reviewed Attorney General Opinion C-105. Just
before the opening of the 1977 regular session of the 65th
Legislature, this office advised the House Agriculture and
Livestock Committee in Attorney General Opinion H-895 (1976)
that it reaffirmed Attorney General Opinion C-105. Yet even
though the 65th Legislature is the only legislature to ever
amend the act (Acts 1977, 65th Leg., ch. 641 at 1629), it
did not amend the act so as to reject Attorney General
Opinion C-105. When an act is amended in some respect, but
not amended to change a construction placed on the act by
the attorney general, that is strong evidence of legislative
sanction of the attorney general's construction. See San
Antonio Union Junior Collese Dist. v. Daniel, 206 S.W.2d
995, 998 (Tex. 1947).
As further evidence of legislative sanction of this
office's construction, the 67th Legislature adopted a revi-
sion of the statutes relating to agriculture, incorporating
them into the Agriculture Code, and again chose not to amend
the act. See Acts 1981, 67th Leg., ch. 388 at 1012. When
the legislature reenacts a statute without change, the
legislature is presumed to have ratified prior statutory
constructions. Marmon v. Mustans Aviation, Inc., 430 S.W.2d
182, 187 (Tex. 1968); Federal Crude Oil Co. v. Yount-Lee Oil
Co., 52 S.W.Zd 56, 62 (Tex. 1932). Given all this evidence
of legislative approval of this office's construction, we
are not inclined to overrule Attorney General Opinion C-105.
Moreover, with respect to the Texas Feed Control Act of
1957, this office has for twenty-five years advised that
commercial feed lot operators do not come within its terms
and are therefore not subject to its criminal sanctions,
found in subchapter G of chapter 141 of the Agriculture
Code. Given this criminal liability, only the very most
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Honorable Roy Blake
Honorable Bill Haley
Page - 4 (JM-922)
compelling reasons would cause us to change our view of the
scope of the act.
As one reason, it is suggested that when the act was
revised and incorporated into the Agriculture Code, its
terms were changed so that they now cover commercial feed
lots. The argument runs as follows: By omitting any
definition of VSsell" in section 141.001 and by defining
"distribute" to mean *'otherwise supply" in section
141.001(6), the legislature rejected the sale-service
distinction and thereby subjected commercial feed lot owners
to chapter 141 of the Agriculture Code.
In fact, however, the terms of the act were not changed
by the adoption of the Agriculture Code. Former article
3881e, section 3, provided in pertinent part (emphasis
added):
(b) The term ltsell*' or ``s.ale`` includes
exchange.
(c) The term lVdistributel'means to offer for
sale, sell, barter, or otherwise SUDD~V
commercial feeds.
The Agriculture Code provides in section 141.001(6)
(emphasis added):
'Distribute' means sell, offer for sale,
barter, exchange, or otherwise sm~ly.
Thus both the original version and the codification always
applied to feed that was otherwise SUDDlied. Attorney
General Opinion C-105 simply held that what is being
supplied by a commercial feed lot is not feed, but the
service of keeping stock.
The revision of the Texas Commercial Feed Control Act
of 1957, when codified as chapter 141 of the Agriculture
Code, made no change in the law, as construed in Attorney
General Opinion C-105. Moreover, we do not think that a
change as significant as broadening the scope of the act can
be inferred from such a subtle revision of the definitions
of the statute.
It is also suggested as a reason for changing our
interpretation that the sale-service distinction makes no
sense in light of the operations of modern commercial feed
lots. We have reviewed the materials submitted regarding
modern commercial feed lots. Modern lots share with lots of
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,
Honorable Roy Blake
Honorable Biil Haley
Page - 5 (JM-922)
thirty years ago the characteristic of being bailees of the
stock they keep. If it is desirable, however, in light of
modern operations to provide owners of stock protection
beyond their status as bailors by subjecting commercial feed
lots to chapter 141 of the Agriculture Code, that is a
policy matter for the legislature. See Moss v. Gibbs, 370
S.W.2d 452, 458 (Tex. 1963).
SUMMARY
Having reconsidered Attorney General
Opinions C-105 and H-895, we again hold that
the Texas Commercial Feed Control Act of
1957, now codified as chapter 141 of the
Agriculture Code, does not apply to feed lots
which merely keep and feed stock for the
owner.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by F. Scott McCown
Assistant Attorney General
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