Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Jackie W. St. Clair Opinion No. R-906
Commissioner ..
Texas Department of Labor h Re: Application of the
Standards Texas AuctioneersAct to
P. 0. Box 12157, Capitol Station livestock marketing
Austin, Texas 78711 businesses or auction
barns.
Dear Commissioner St. Clair:
You have reguested .our opinion regarding.the coverage
and application of the Texas Auctioneer Act, article 8700,
V.T.C.S., to livestock marketing businesses or auction barns.
You first ask whether article 8700 includes livestock
marketing businesses within the definition of "auctioneer"
anclwhether, therefore, such a .'
business is required to
obtain a license.
Article 8700 itself lends support to the position that
a livestock marketing business isembraced withinthe'statute's
terms. A list of seven "exempt transactions".-inssection 2
does not include an exception for a livestock marketing
business. Furthermore, section 6 furnishes evidence that
the omission was not inadvertent. It specifies .that the
provisions of section 5, which require an-auctioneer to'
obtain a bond,
shall not apply'to livestock auctioheers
who are'engaged exclusively in the live-
stock auction business ih Texas through
bonded livestock auction facilities ,... . .
The clear implication of this provision is that some live-
stock auctioneers are subject to the bonding reg=ments of
section 5, and hence, that all livestock auctioneers, since
they are not exempted from other portions of the statute,
are subject generally thereto. We note that an "auctioneer"
for purposes of article 8700 includes an individual,
corporation "or other group, however organized." -See Attorney
General @pinion H-7OF, (1975).
p. 3802
The Honorable Jackie W. St. Clair - page 2 (W-906)
You also ask whether a livestock marketing business
must in all circumstances file a bond. As we have previously
stated, section 5 of article 8700 requires every entity which
seeks an auctioneer's license simultaneously to obtain a
bona in the amount of $5.,000.00. Section 6, however, excludes
from this bonding requirement *livestock auctioneers who are
engaged exclusively in the livestock auction business in
Texas through bonded livestock auction facilities." Bonded
livestock auction facilities are provided for by the Federal
Packers and Stockyards Act of 1921, 7 U.S.C. 6 181, et seq.,
and by article 1287a, V.T.C.S. As to livestock markzing
businesses which may not be covered by,either of these two
bonding provisions, we believe that the bonding requirement
of section 5 is applicable.
In your third and final question, you ask:
Does the federal Packers and Stockyards Act
of 1921, 7 U.S.C.A., Section 181 et seq.
preempt and rencler~
invalid the Texas Auctioneer
Act, Article 8700, V.T.C.S.,~as it applies to
those livestock marketing businesses currently
covered by federal regulation?
The Federal Packers and Stockyards Act was enacted in 1921,
and the primary purpose of the Act was to assure fair com-
petition and trade practices in the field of livestock
marketing. The coverage of the Act was expanded in 1958
to include all livestock marketing acitivities which were
a part of interstate commerce; however, the federal Act does
not require any .auctioneeringlicense as such, but rather
provides for registration of auction markets regardless of
size. As stated in the bill analysis and legislative history
of the 1958 Amendment to the Act,
who are eiia in y
--o&,~h%%%~~s~i~~ss ‘I
259 t e place or places where they operate. . . .
3 U.S. C&e Cong.T& Ad. News 5212, 5219 (1958) .
(Emphasis added).
p. 3803
The Honorable 'JackieW. St. Clair - page 3 (H-906)
As the Supreme Court held in Peres v. Cam bell, 402 U.S. 637
(19711, thenSupremacy Clause minva .-E&--
1 ate only a state
law which, frustrates the full effectiveness of the federal
statute. Justice White, speaking for the majority, stated
the test as follows:
Deciding whether a state statute is in
conflict with a federal statute and hence
invalid under the Supremacy Clause is
essentially a two-step process of first
ascertaining the construction of the two
statutes and then determining the constitu-
tional question whether~they are in conflict.
Id. at 644.
-
In this particular case, the Texas Auctioneer Act seeks only
to upgrade the professional standards of the auctioneering
.
aspect of the livestock marketing business;and we note that
the federal act does not attempt to regulate the specific
activities of auctioneers, but rather regulates-the general
conduct of participants in the livestock marketing business
at federally bonded facilities. This regulation, however,
does not include licensing of auctioneers, and we do not
believe the Texas Auctioneer Act invades the field already
covered by an Act of Congress.
6 g, 100 F. supp. 781 (D. Minn%~)v$%*?l%gF%%@
78th Cir.)~,cert. denied, 344 U.S. 934 (1952); Attorney
deneral Opinion O-5458 (1943). In our opinion, there is no
conflict between the Federal Packers and Stockyards Act of
1921 and the Texas Auctioneer Act. Therefore, we answer
your final question in the negative.
SUMMARY
Livestock marketing businesses or auction
barns are covered by the definition of
"auctioneer" under article 0700, V.T.C.S.,
and are required to obtain an auctioneer's
license. Auction barns are not required
to file a bond under the Texas Auctioneer Act,
so long as they are bonded pursuant to,either the
Federal Packers and Stockyards Act of 1921, 7
U.S.C. 6 181, et seq. or the Live Stock
Auction Commisxon Merchants Act, article
1287a. V.T.C.S. The Federal Packers and
p. 3804
The Honorable Jackie W. St. Clair - page 4 (R-906)
stockyards Act does not preempt or render
invalid the Texas Auctioneer Act, because
there is no conflict between the two statutes.
APPROVED: i/
First Assistant
p. 3805