Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
July 5, 1978
JOHN L. HILL
Attorney General
Honorable Reagan V. Brown Opinion No. H- 12 02
Commissioner
Texas Department of Agriculture Re: Whether the Texas
P. 0. Box 12847 Department of Agriculture may
Austin, Texas 78711 issue a nursery inspection certi-
ficate based on inspection of
premises when no nursery stock
is present.
Dear Commissioner Brown:
You inquire about your duty to inspect nurseries under articles 119-135.1,
V.T.C.S. You ask whether you may issue a nursery inspection certificate
based on the inspection of premises at a time when no nursery stock is
present.
Article 126a states in part:
The Commissioner of Agriculture shall cause to be
made at least once each year an examination of each
nursery or other place where nursery stock is exposed
for sale. If such stock so examined is apparently free
in all respects from any contagious or infectious
disease or dangerously injurious insect pests, the
Commissioner shall issue to the owner or proprietor of
such stock a certificate reciting that such stock so
examined was at the time of such examination
apparently free from any such disease or pest.
“Nursery” is defined to mean “any grounds or premises on which nursery stock
is grown, or exposed for sale.” V.T.C.S. art. 135.1. Article 126 describes the
inspection process as follows:
The Commissioner shall inspect or cause to be
inspected at least once each year each and every place
offering items of nursery products or stock . . . to
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Honorable Reagan V. Brown - Page 2 (H-1202)
ascertain whether or not said item or premises are infected
withy disease or insect pests injurious to human, animal or
plant life.
Article 119 also requires the inspection of all nurseries and other places offering
items~ of plant life for sale. These provisions expressly require the inspection of
nursery stock. They define the premises to be inspected as a place where nursery
stock is grown or offered for sale. We believe the legislature has clearly expressed
its intent that the inspection take place when nursery stock is present. The
Commission may not issue the inspection certificate described in article 126a based
on an inspection of premises alone. See Teacher Retirement System v. Duckworth,
260 S.W.2d 632 (Tex. Civ. App. - FoxWorth 1953), opinion adopted, 264 S.W.2d 98
(Tex. 1954); see also V.T.C.S. art. 126b.
You state that in some cases it is impractical to inspect nursery stock prior
to issuing the certificate. However, any inconvenience that results from the
statute as written must be remedied by legislation. See Cullinan v. McColgan, 183
P.2d 115 (Cal. App. 194’7);Layman v. State Unemployment Compensation Comm., ll7
P.2d 974 (Ore. 1941).
SUMMARY
The Texas Department of Agriculture may not issue a
nursery inspection certificate based on the inspection of
premises when no nursery stock is present.
DAVID M. KENDALL, First Assistant
Opinion Committee
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