Untitled Texas Attorney General Opinion ( 1960 )

THE ATTORNEYGENERAL
OF TEXAS
AUSTIN ii.TEx~s
WJLL WILSON
A-l-l-O-GENERAL
my 4, 1960
Dr. Ft.G. Garrett
Executive Director
Texas Animal Health Commission
State Office Building
Austin, Texas
Opinion No. W-835
Re: Whether it Is mandatory un-
der the provisions of Sec.
23A.,Art. 152513,Vernon's
Penal Code, that the Texas
Animal Health Commission
designate and begin bru-
cellosis work in counties
in the order in which valid
Dear Dr. Garrett: petitions are received.
Your letter of March 24, 1960, requesting the opinion
of this deDartmetIt on the matters stated therein reads in
part as f0ii0ws:
"Specifically, an opinion is desired on
the subject of whether the Commission may,
at its discretion, postpone the beginning of
brucellosis work in counties which have,sub-
mltted valid petitions until such time as it
is economically feasible and scientifically
sound to begin such work, or is it mandatory
that the Commission designate and begin bru-
cellosis work in counties in the order in
which valid petitions are received."
Article 7009 of Vernon's Civil Statutes changes the
name
- of the Livestock Sanitary Commission of Texas to the
Texas Animal Health Commission and provides that hereafter
all or any references thereto or laws relating to the Live-
stock Sanitary Commission shall apply to the Texas Animal
Health Commission, and all appropriations and benefits
should be available to and apply to the Texas Animal Health
Commission.
Dr. i?.G. Garrett, Page 2, (WW-835)
The pertinent provisions of Section 23A, Article 1525b,
Vernon's Penal Code, concerning your question are set out as
follows:
"(1) Purpose. It Is the purpose of this
Section to bring about the effective control
and eventual eradication of bovine brucello-
sis In the State of Texas and to accomplish
that purpose in the most effective, practical
and expeditious manner."
"(4) When seventy-five percent (75%) of
the cattle owners in any area or county In
this State, as reflected on the current tax
~0116, owning at least fifty-one percent
(51%) of the cattle within that affected
area or county, as reflected by said tax
rolls, shall 'petitionthe Livestock Sanitary
Commission of Texas to have such area or
county, designated as a modified certified
brucellosis free area, the Livestock Sani-
tary Commission of Texas x declare the coun-
ty or area to be a brucellosls control area.
If such-area follows county boundary lines
it shall be designated as a 'County Brucello-
sis Control Area,, the name of the county
identifying the area." (Emphasis added)
“(5) In the event that, for any valid
reasons, the Livestock Sanitary Comlssion
of Texas should decide that conditions within
and surrounding the county originating such
petition make It impractical to operate a bru-
cellosis control area within the boundaries of
such county, then the Texas Livestock Sanitary
Commission is authorized to add additional
territoryto such county area in reasonable
amount, O s elf
"(11) In order to effectuate the provisions
and purposes of this Section',the Livestock
San1.tary Commission of Texas is hereby author-
ized to promulgate such rules and regulations
and to require such reports and records as may
be necessary D o *"
Clearly, the Texas Animal Health Commission was author-
ized by the Legislature to establish its own rules and regu-
lations in bringing about the effective control of brucellosis
in Texas and may be governed, In establishing the county
Dr. R. G. Garrett, Page 3, (w-835)
brucellosis control areas, by the conditions existing in
particular areas and the needs as to effective controls on
a statewide basis rather than governed by the date a
petition for the.establishment of a control area might be
filed with the Commission by cattle owners In a particular
area. If it is determined by the Commission that a control
area is more urgently needed in a county filing a valid
petition later than a county where there is no great emer-
gency, this determination would be controlling rather than
the filing dates of the two valid petitions and there would
be no abuse of discretion on the part of the Commission.
The Legislature has authority under the State's police
power to create the Livestock Sanitary Commission and to
empower it to establish, maintain and enforce quarantines
authorized by law, as it may deem necessary, as well as power
to authorize the Commission to make reasonable rules and regu-
lations to prevent the spread of contagious disease among
livestock. Mulkey v. State, 83 Tex. Crim. 1, 201 S W 9
‘(1918);Grandy v. State, a'/Tex. Crlm. 197, 220 s.w: 33; ?1920).
In 1 Sutherland Statutory Construction, 3rd Edition,
Page 75, Section 313, it Is stated as follows:
" s the principal exercise of the legls-
lative function is the determination of princi-
ples in the establishment of basic policy and
that the remainder of a statute merely outlines
in such detail as seems desirable the machinery
by which the basic principle is made effective.
The legislative determination of all these de-
tails is impossible and thus the creation of
special administrative agencies for their deter-
mination is, in fact, a basic policy determina-
tion by the legislature. Thus, the grant to
these agencies of rule-making power consistent
with the general principles announced is not a
delegation of the principal legislative functlon--
that of policy determination--but is at most the
delegation of a secondary legislative function--
the function of making structural adjustments,
establishing procedures and regulations for the
achievement of the principal policy. . o *"
Statutes which are enacted for the protection and preser-
vation of public health give wide latitude in rule-making
powers to an administrative body such as the Texas Animal
Health Commission. In 1 Sutherland Statutory Construction,
3rd Edition, Page 77, Section 314, it is further stated:
. ‘
Dr. R. G. Garrett, Page 4, (WW-835)
II
. . . Where, however, frequent adjust-
ment or detailed expert knowledge of the
field is necessary, a legislative delegation
with general policy standards is valid.
"The validity of a particular standard
therefore depends primarily on the field
of activity regulated. Thus, in the field
of public health, safety, and morals gener-
al and Indeterminative standards of policy
have usually been sustained 'andwide dis-
cretion has been left to administration.
. . .tt
Also, as set out in Subsection 4, Section 23A, when
certain people "shall" petition the Texas Animal Health
Commission to have a certain area designated as a bru-
cellosls control center the Commission 'may" declare a
county or area to be a control center when a valid peti-
tion has been filed by 75s of the citizens owning 51% of
the cattle in a county or area of the State. The use of
the verbs "shall" and "may" make the provision as to the
filing of a petition mandatory and the provision as to
the establishment of control areas only directory and It
follows that the commission is given needed discretionary
powers in determining in which area work should first
begin in carrying out an effective brucellosis control
program regardless of the filing date of a petition.
In 3,Sutherland Statutory Construction, 3rd Edition,
Page 116, Section 5821, it is stated as follows:
"Where both mandatory and directory
verbs are used in the same statute, or in
the same section, paragraph or sentence
of a statute, it is a fair inference that
the legislature realized the difference
In meaning, and intended that the verbs
used should carry with them their ordinary
meanings. Especially is this true where
lshallt and 'may' are used in close juxta-
position in a statutory provision, under
circumstances that would indicate that
different treatment is Intended for the
predicates following them. O s *"
It Is apparent from the foregoing statutes and author-
ities and, therefore, the opinion of this department that
the Texas Animal Health Commission, under its rule-making
powers granted by the legislature, may designate.and begin
brucellosis work in counties and areas in any manner it may
Dr. R. G. Garrett, Page 5, (~-8%)
see fit, this being entirely discretionary with the
Commission, so long as the stated purpose of this act to
control and eradicate bovine brucellosis is effectively
carried out.
SUMMARY
The Texas Animal Health Commission
may declare a county or area to be
a brucellosis control area if and
when it is deemed practical to
carry out the purpose of this Act,
the time and place being entirely
discretionary with the Commission,
and it is not mandatory under the
provisions of Section 23A, Article
1525b, Vernon's Penal Code, that the
Commission designate and begin bru-
cellosis work in counties in the
order In which valid petitions are
received.
Very truly yours,
WILL WILSON
;;xrza+
Iola B, Wilcox
Assistant
IBW:mm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Wallace Finfrock
John Reeves
MariettaMcGregor Payne
Marvin F. Sentell
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore