Untitled Texas Attorney General Opinion ( 1973 )

THE AYCTO
OF TEXAS
Honorable H. Q. Sibley, D. V. M. Opinion No. H- 148
Executive Director
Texas Animal Health Commission Re: The requirement that
1020 Sam Houston State Office Building brucellosis infected
Austin, Texas 78701 cattle be branded and
slaughtered. Article
Dear Dr. Sibley: 152513, $ 23A, V.T.P.C.
You have asked whether the Texas Animal Health Commission can
require slaughter of brucellosis diseased animals within fifteen days of
their designation as a “reactor. ”
Section 23A of Article 1525b, Vernon’s Texas Penal Code, provides:
“(I) Purpose. It is the purpose of this Section to
bring about the effective control and eventual eradi-
cation of bovine brucellosis in the State of Texas and
to accomplish that purpose in the most effective,
practical, and expeditious manner.
‘I.. . .
“(18) Should evidence of infection be disclosed in any
of the animals required to be tested, such animals
that react to the test shall be fire branded with the
,letter ‘B’ on the left jaw and such cattle and herds
shall be handled in accordance with regulations of the
[Texas Animal Health Commission] which sha,ll provide
for the issuance of quarantines, the manner, method
and system of disposing of reactor cattle, the testing
and retesting of infected herds, and the cleaning and
disinfection of premises following removal of reactor
cattle. ”
p. 694
. . -
The Honorable H. Q. Sibley, page 2 (H-148)
Among the regulations and procedures adopted by the Texas Animal
Health Commission is “Plan A - Voluntary Cooperative Agreement for the
Control and Eradication of Brucellosis in Bovine Animals. ” Section II
provides in part:
“2. All animals designated as reactors must be fire
branded with the fetter ‘B’ on the left jaw as required
by Saw and disposed of within fifteen (15) days by con-
signing them for immediate slaughter to establishments
maintaining Federal, State or Municipal veterinary
post-mortem inspection. ”
You have informed us that the acceptance of Plan A is a prerequisite
to the issuance of a Grade A milk permit by the State Department of Health.
By the express language of the statute, the Legislature empowered
the Commission to determine the manner, method and system of disposal
of reactor cattle. It is clear that the Legislature has the power to give
this authority and discretion to the Commission. Mulkey v. State, 201s. W.
991 (.Tex. Crim. 1918) ; Attorney General Opinion WW-835 (1960).
We do not believe that the method chosen for the identification and
destruction of contaminated cattle is violative of any constitutional protec-
tion. See specifically, United States Constitution, Amendment 14; Texas
Constitution, Article 1, $ $17 and 19. The exercise of the police power of
the State in designating diseased cattle and consigning them for slaughter
is not a constitutionally proscribed “taking” or “damaging” of property.
Nunley v. Texas Animal Health Commission, 471 S. W. 2d 144 (Tex. Civ.App.
San Antonio, 1971, error ref’d, n. r. e.). Likewise, there is no constitutional
defect in a procedure which permits summary administrative action subject
to later judicial review in the interest of health and safety. North American
Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908); Nunley v. Texas
Animal Health Commission, supra.
p. 695
. .
The Honorable H.Q. Sib:Ley, page 3 (H-148)
SUMMARY
The Texas Animal Health Commission may
require the slaughter of brucellosis infected cattle
within fifteen days of the determination of infection.
Very truly yours,
Attorney General of Texas
APPROV.ED: ‘
DAVID M. KENDALL, Chairman
Opinion Committee
p. 696