Untitled Texas Attorney General Opinion ( 1974 )

The Honorable H. Q. Sibley, D. V. M. Opinion No. H- 195
Executive Director
Texas Animal Health Commission Re: The authority of the
1020 Sam Houston State Office Bldg. Texas Animal Health
Austin, Texas 78701 Commission to prohibit
the admission of Mexican
cattle. into designated
Tick Eradication Areas.
Dear Mr. Sibley:
You have asked whether the Texas Animal Health Commission has the
authority under Vernon’s Texas Penal Code, Article 1525c, or any other
statute to forbid the introduction of legally imported Mexican cattle into
designated tick eradication areas of Texas.
You have informed us that the Commission has reason to believe that
Mexican cattle have developed an immunity to “Texas fever” or “splenetic
fever, ” the disease carried by the fever tick. Even though these cattle
have been rid of any ticks and show no ill effects they may carry the latent
disease in their bloodstreams. ff one later becomes a host to a fever tick,
the tick could transmit the disease from the immune Mexican cow to non-
immune Texas cattle.
Works on veterinary medicine inform us that historically~“Texas fever”
has been one of the most destructive diseases among cattle. At one time
practically all cattle in the southern United States were affected by the disease.
Pioneering research led to the discovery that the disease was caus.ed by the
development and activity of minute protoplasmic parasites, Piroplasma
bigemina, in the blood streams of cattle. For the first time it was discovered
that a disease was transmitted from one animal to another by an intermediate
host or carrier, in this case the Texas fever tick or cattle fever tick,
p. 913
.
The Honorable H. Q. Sibley, page 2 (H-195)
Margaropus annul&us. Since it appears the fever tick is the only means by
which the disease is naturally transmitted from .snimal to animal, eradication
of the fever carrying ticks will cause the disease to disappear, In 1906 the
United States began a campaign to eliminate the fever tick, and now tbe
spread of the disease has been virtually eliminated in this nation. Only a
few counties along the Rio Grande are under permanent quarantine because
of the presence of ticks. See generally U. S. Dept. of Agriculture, Animal
Diseases, pp. 310-313 (1956); Dykstra, Animal Sanitation and Disease Control,
pp. 747-749 (1961).
The legislative machinery by which Texas has combatted this disease
is Article 1525~. the Tick Eradication Law. It provides methods for eradi-
cating ticks and thus controlling the disease. The proposal about which you
inquire would provide another means of controlling the fever. Instead of
concentrating all efforts on eliminating the carrier, the Commission is
considering measures to prevent the introduction af~.sources of the disease
in areas where the carrier tick may exist. You have informed us that testing
cattle to determine whether they carry the disease is prohibitively expensive,
and your inquiry involves a proposal to prevent the introduction of all Mexican
cattle into a designated Tick Eradication Area. Although the Commission
has no present evidence that Mexican cattle have caused infection of Texas
cattle by their introduction into Tick Eradication Areas in this state, you
inform us that it is likely that as many as one-half of Mexican cattle crossing
from Mexico into the United States could be carriers of the disease.
The Legislature has enacted a series of statutes to combat this and
other diseases of animals under the provision of the constitution permitting
the passage of laws for the regulation of livestock and the protection of
stock raisers. Texas Constitution, Article 16, $ 23. One of the laws
enacted pursuant to the constitutional provision is Article 1525c, Vernon’s
Texas Penal Code, the Tick Eradication Law, (to be republished as Article
7014g-1, Vernon’s Texas Civil Statutes). Section 1 of that article provides
in part:
“It shall be the duty of the [Texas Animal
Health Commission]. . . to eradicate the fever-
carrying tick (Margaropus Annulatus) in the St&e
p. 914
The Honorable H. G. Sibley, page 3 (H-195)
of Texas and to protect all lands, territory,
premises, cattle, horses, mules, jacks and
jennets in the State of Texas from said tick and
exposure thereto, under the provisions of this
Act. Said Commission shall adopt necessary rules
and regulations, to be proclaimed by the Governor
of the State of Texas, for carrying out the provisions
of this Act. ”
Article 1525b of the Penal Code (to be republished as Article 7014f-1, Vernon’s
Texas Civil Statutes) involves the control of disease among live stock, Section
1 of that article provides in part:
“It shall be the duty of the [Texas Animal
Health Commission]. . . to protect all cattle,
horses, mules, asses, sheep, goats, hogs, and
other live stock, and all domestic animals and
domestic fowls of this State from infection,
contagion or exposure to the infectious, contagious
and communicable diseases enumerated in this
Section . . . and other similar and dissimilar
contagious and infectious diseases of live stock
recognized by the veterinary profession as
infectious or contagious. . . . Said Commission
may at its discretion whenever it is deemed~
necessary or advisable also to engage in the
eradication and control of any disease of any
kind or character that affects animals, live
stock, fowls or canines regardless of whether
said diseases are infectious, contagious or
communicable and may establish necessary
quarantines for said purpose. . . . . Said Commis-
sion shall adopt rules and regulations to be
proclaimed by the Governor of the State of Texas
for the purpose of carrying out and enforcing
the provisions of this Act. . . . No provision
of this Act shall relate to tick eradication; ”
(emphasis added).
p. 915
The Honorable H. Q.. Sibley, page 4 (H-195)
The proposal you suggest is designed to p.revent the introduction and
spread of “Texas fever” in this state. Technically it is not a tick eradication
measure. Instead, it is designed to prevent disease. We find it unnecessary,
therefore, to determine whether Article 1525c, the Tick Eradication Law,
provides the authority for the adoption of the measures you suggest, since
‘the proposals may be authorized underArticle~l525b’s grant of authority to
the Commission to eradicate and control “any disease of any kind or character
that affects animals”.
The Commission’s proposed action is clearly within the police power
of the state. Rasmussen v. Idaho, 181 U. S. 198 (1901); Smith v. St. Louis
& Southwestern Railway Co. , 181 U. S. 248 (1901); Armstrong v.’ Whitten,
41 F; 2d 241 (S. D. Tex. 1930).
It is axiomatic that a state regulation cannot stand if it conflicts with
a federal statute or regulation. Article 6, clauae.2, of the United States
Constitution, the Supremacy Clause. Also, the state may not regulate
commerce inan area in which the federal government has pre~empted the
regulatory field. Article 1, $ 8, clause 3 of the United States Constitution,
the Commerce Clause. In Rice v, Santa Fe Elevator Corp. ,, 331 U.S. 218,
230 (1947), the Court said:
“The question in each case is what the purpose
of Congress was.
‘1. . . Such a purpose may be evidenced in several
ways. The scheme of federal regulation may be so
pervasive as to make reasonable the inference that
Congress left no room for the States to supplement
it. . . . Or the Act of Congress may touch a field
in which the federal interest is so dominant that the
federal system will be assumed to preclude enforce-
ment of state laws on the same subject. . . . Like-
wise, the object sought to be obtained by the federal
law and the character of obligations imposed by it
may reveal the same purpose. . . . Or the state
policy may produce a result inconsistent with the
objective of the federal statitte. I’
pe 916
The Honorable H. Q.. Sibley; page 5.``(H-195) :
After carefully examining the federal regulatory scheme it is our
conclusion that Congress did not intend to preempt the field. See, Savage
v. Jones, 225 U.S. ~501 (1912); Reid ‘v. Colorado, 187 U.S. 137 (1902);
Missouri, Kansas & Texas Railway Co. . v. Haber- :169 U. S. 613 (1898).
Indeed, the Congress and the Secretary of Agriculture specifically contem-
plate concurrent state regulation. 21 U.S. C. $114, 9 C. F.. R. $ 72-10.
21 U. S. C. § 104, authorizes the Secretary of Agriculture to permit
the entry of certain Mexican’cattle into the State of Texas. As it is our
understanding that the proposed regulation would merely prevent their
entry’into designated Tick Eradication areas, we do not believe it would
conflict with any’ specific ~federal statute or the general federal regulatory
scheme.
A state’s absolute quarantine against cattle from another state may
be permissible under the-commerce clause. Smith v. St. ~Louis & Southwest
Railway Co., supra. The test to be used in determining whether a state
reeulation unduly affects interstate commerce is essentially a balancing
test. It was recently articulated in Pike v. Bruce Church, *Inc. , 397 Ul S.
137, 142 (1970) where the United States Supreme Court said:
“Where the statute regulates even-handedly to
effectuate a legitimate local public interest, and
its effects on interstate commerce are only incidental,
it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the
putative local benefits. . . . If a legitimate local
purpose is found, then the question becomes one
of degree. And the extent of the burden that will
be tolerated will of course depend on the nature of
the local interest involved, and eon whether it could
be promoted as well with a lesser impact on interstate
activities. ”
The validity of the proposed regulation would depend on its scope and
its effectiveness in promoting the health of cattle in this state. The only
regulation that. has been suggested to us is in a very general outline form,
and without more specific information as to its scope, we are not able to
p. 917
.
The Honorable H. Q.. Sibley. page 6 tH-195)
render any jud.gment on its legal validity in respect to the commerce
clause. The soundness of the veterinary theory on which it is based would
be a relevant consideration in determining the regulation’s validity, but
we are not equipped to make such factual determinations. We can say,
however, that regulations of the type you. have outlined would not necessarily
be precluded by the federal government’s power over interstate and foreign
commerce.
SUMMARY
The Texas Animal Health Commission has the authority
to prohibit the admission of Mexican cattle into designated Tick
Eradication Areas in sn attempt to prevent the introduction and
spread of splenetic or Texas fever. Such a regulation would not
necessarily be precluded by the federal government’s power over
commerce.
Attorney General of Texas
//
A
DAVID M. KENDALL, Chairman
Opinion Committee
p. 918