Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
July 25, 1983
JIM MATTOX
Attorney General
John W. Holcombe. DVM opinion NO.JM-47
Executive Director
Texas Animal Health Commission Re: Authority of the Texas
P. 0. Box 12966 Animal Ilealth Commission to
Austin, Texas 7x711 use Form 2-71 pertaining to
inspections of livestock
moving interstate
Dear Dr. Holcombe:
You ask the following questions:
1. May the Texas Animal Health Commission
provide inspections for livestock moving from
Texas to another state?
2. May the commission use Form 2-71 for this
purpose even though it is not mentioned in the
statutes governing the commission?
806 Broadway. Suite 312
Lubbock. TX, 79401.3479
We answer both of your questions in the affirmative.
8061747-5238
Chapter 161 of the Agriculture Code creates and sets forth the
duties and powers of the Texas Animal Health Commission. The
4309 i-4 Tenth. suite e commission is required to protect all ljvestock from various diseases
McAllen. TX. 78501~1685
5121682-4547
under section 161.041 of the Agriculture Code and is empowered, inter
alia. to promulgate rules necessary for the enforcement of its duties.
AgriC. Code §161.046. Section 161.048 of the code specifically
200 MaIll Plaza. Suite 400 permits "aI1 agent" of the commission to stop and inspect any shipment
San A,ltOnlO. TX 78205.2797
of livestock being transported in this state. The section sets forth
5,21225~4191
the following:
(a) An agent of the commission is entitled to
stop and inspect a shipment of livestock or
livestock products being transported in [.his state
in order to:
(1) determine if the shipment is in
compliance with the laws and rules administered
by the commission affecting the shipment;
(2) determine if the shipment originated
from a quarantined area or herd; or
p. 204
Dr. John W. Holcombe - Page 2 (JM-47)
(3) determine if the shipment presents a
danger to the public health or livestock
industry through insect infestation or through
a communicable or noncommunicable disease.
(b) The commission x detain a shipment of
livestock or livestock products that is being
transported in violation of law or a rule of the
commission. The commission x require that the
shipment be unloaded at the nearest available
loading facility.
(c) The commission may not inspect a railroad
train at any point other than a terminal.
(d) The commission may post signs on public
highways and use signaling devices, including red
lights, in conjunction with signs, if necessary to
effectively signal and stop vehicles for
inspection.
(a) In this section, 'livestock product'
includes hides; bones; hoofs; horns; viscera;
parts of animal bodies; litter, straw, or hay used
for bedding; and any other substance capable of
carrying insects or a disease that may endanger
the li~vestock industry. (Emphasis added).
See also Agric. Code §§161.041, 161.043, 161.044, 161.047.
There is no necessity for construction when a statute is
expressed in unambiguous language and its meaning Is clear and
obvious. Trimmier v. Carlton, 264 S.W. 253, 263 (Tex. Civ. App. -
Austin 1924, writ granted). See aho. Gilmore v. Waples, 188 S.W.
1037, 1038 (Tex. 1916); Railroad Commission of Texas v. Miller, 434
S.W.Zd 670, 672 (Tex. 1968); National Life Insurance Company v.
S_te_ga11) 169 S.W.:d 155, 157 (Tex. 1943). The word "may It ordinarily
connotes discretion or permission, District Grand Lodge No. 25 G.U.0,
of O.F. v. Jones, 160 S.W.2d 915, 922 (Tex. 1942), and it will not be
treated as a word of command unless there is somethine in the context
or subject matter of the act to indicate that it was used in that
Se*Se. San Angelo National Bank v. Fitzpatrick, 30 S.W. 1053, 1054
(Tex. 1895). Accordingly, we construe section 161.048, Agriculture
Code, to repose in the Texas Animal Health Commission discretion to
stop and inspect any shipment of livestock for the reasons set forth
in the statute. The commissioner's discretion to inspect is in
contrast to the mandatory inspection procedure established in 50
designated counties by section 146.051 et seq. of the Agriculture
Code, which creates a county office of inspector of hides and animals.
p. 205
Dr. John W. Holcombe - Page 3 (JM-47)
Your second question asks whether a form adopted by the
commissioner, Form 2-71, may be used for the purpose of conducting
livestock inspections even though it is not mentioned in the Statutes
governing the commission. We conclude that it may. You have informed
us that Some States will accept this certification in lieu of an
official health certificate issued by a veterinarian. We cSn find no
statute, nor have you directed "8 to one, which requires veterinarian
certification for inspections. Section 161.048 permits "an agent" of
the commission to conduct inspections; there is no requirement that
inspections be conducted by veterinarians. The form, which you
included for our examination, need be signed only by an "inspector,"
and there is no requirement that he be a veterinarian. Thus, we
conclude that the form which you submitted to us may be used by the
commission for purposes of conducting inspections pursuant to section
161.048 of the Agriculture Code.
SUMMARY
(1) The Texas Animal Health COrnmiSSiOn may, St
its discretion, conduct inspections of livestock
moving from Texas to another state; it is not
required to do so. (2) The Texas Animal Health
Commission may employ Form 2-71 for the purpose of
conducting such inspections.
Vet-y ruly you
s k/ k
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OP~lNION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Hoellinger
George Warner
p. 206