Untitled Texas Attorney General Opinion ( 1948 )

THEAITORNEXGENERAL
OPT-EXAS
ALXWI-EG-
September 4, 1948
Hon. D. A. Davidson, Dlrec tor
Live Stock Sanitary Commission
Fort Worth, Texas
Opinion No. V-676.
Re: The validity of Article
1525b, Section 6, Vernon’s
Penal Code, authorlz lng
the issuance of search var-
rants to peace officers ac-
companying veterinarians
employed by the Live Stock
Sanitary Commission in ad-
ministering the provisions
of the statute D
sear Sir:
You have inquired as to the validity of Arti-
cle 1525b, Section 6, Vernon’s Penal Code, which pro-
vides authority for obtaining a search warrant by a
peace officer when he shall accompany a veterinarian
employed by the LLve Stock Sanitary Commission in the
performance of’ sny duty authorized under said statute.
That statute provides that in the event a search war-
rant is obtained under that section, such search war-
rant shall authorize entry and reentry for a period
of thirty days after ‘its issuance.
We set out Section 6 of Article 1525b, V.P.C.,
as follows:
“The Chief Veterinarian of the Live
Stock Sanitary Commission and all other
veterinarians employed by said Commission,
including members of said Commission, are
hereby authorized to enter any public or
prlvate property for t’ne exercise of any
authority or performance of any duty au-
thorized under this Act. If said per-
:~n desire3 33 be accompanied by s peace
zfflcer the 3a:d person may sopiy t3 any
Hon. D. A. bvidson, Page 2, V-676.
meglstrate in the County vhereln said
property Is located for the laauance OS
a search varrant, and it shall be the
duty of the said magistrate to issue
the same, but no search warrant shall
Issue vithout describing as near as may
be the premise or other place to be en-
tered; nor without probable cause, sup-
ported by oath or affirmation. It shall
not be necessary to describe said prem-
ises or place by field notes or metes
and bounds, or other measures, but it
will be sufficient if the search war-
rant contains such reasonable descrlp-
tion as vi11 enable the owner or care-
taker of said property to know just
vhat property is referred to therein.
When said search warrant 1s issued it
will authorize the person to vhom it
is issued to be accompanied by peace
officers, and said search werrant ~111
authorize the person to whom it is is-
sued to be also accompanied by as many
helpers and assistants as he may deem
necessary for the performance of said
duty or the exercise of said authority.
Any person, firm, or corporation who
shall refuse to permit any person to
whom sald search warrant is Issued to
make said entry or to perform any duty
or exercise any authority designated In
said search warrant under authority of
this Act, or who shall refuse to permit
any peace gfflcer or any helper or any
assistant to said person to vhom said
search warrant is issued to make said
entry or to exercise any authority or
perform any duty designated in said
search warrant under authority of this
Act shall be fined not less than Twenty-
five nor more than One Hundred Dollars.
Each separate day upon vhich said refus-
al Is made during the thirty days next
succeeding the date of the issuance of
said search warrant shall constitute a
separate offense. Said search varrant
shall permit the entry and re-entry and
the performance of said duties and exer-
cise of said authority continuously for
Hon. D. A. Davidson, Page 3, V-676,
a ~rlocl of thirty days lftmr Its is-
suence, and additional search Varrants
may be issued thereafter under the pro-
visions of this Act as often as may be
~otl~el~e~~~~ K%%Et
ar lans, inspectors or members of said
Commission to secure said search war-
rants, unless they are to be accompanied
by peace officers, but they are hereby
authorized to make entries upon private
and public lands for the performance of
any duties autborlted under this Act.
Search warrants may also be issued to
Inspectors of the Live Stock Sanitary
Commission engaged in the eradication
of scabies among sheep, goats, and cat-
tle, vhenever said Inspectors are to be
accompanied by peace officers in the per-
formance of any duties in connection with
said work.” (Em has18 supplied through-
out this opinion P
The right of the people of Texas to be se-
cure In their persons, houses, papers and possessions
against unreasonable searches and seizures is guar-
anteed to them by the Fourth Amendment to the Constl-
tution of the United States and by Article 1, 3 g,of
the Constitution of Texas.
We set out Article 1, B 9, of the Constftu-
tlon of Texas, as follows:
“The people shall be secure in
their persons, houses, papers and pos-
sessions, from all unreasonable seiz-
ures and searches; and no warrant to
search any place, or to seize any per-
son or thing shall issue without des-
cribing them as near as may be,nor
without probable cau:e, supported, by
oath or affirmation.
The protection afforded by the Fourth Amend-
ment of the Constitution of the United States is ap-
plicable only to searches and seizures made by the
United States Government or Its officers or agencies.
Hammond Packing Co, v, State, 212 U, S. 522, 29 S.
Ct. 370, 53 L. Ed. 530; Weeks v, U. S., 232 U. S, 383,
34 S. Ct. >41, 58 L, Ed.. 652; National Safe Deposit a
Hon. D. A. Dnvldson, Page 4, V-676.
v. Stead,232 U. 3, 58, 34 3. Ct. 209, 58 L.. fd. 504.
Therefore, we are confronted with resolving
_
the issue of rhether the search warrant In question,
vhlch authorizes entry and reentry for thlrtr days
after Its issuance contemplates an unreasonable search
and seizure within the inhibition of the COnBtitUtiOn
of Texas, Art. 1, 8 9.
It was the fear of unbridled and arbitrary
searches and seizures, as perpetrated by colonial rev-
enue officers armed vlth Writs of Assistance, that
prompted the authors of our Federal and State Constl-
tutlons to draft a positive assurance that the abuse
occasioned by the Issuance of general search warrants,
vhlch flourished during the period of colonial devel-
opment, should never recur.
Inherent In our jurisprudence 1s the prln-
clple enunciated so clearly by Lord Chatham and quot-
ed In Rx Parte Gould,.60 Tex. Cr. R. 442, 132 9. W.
364, as follovs:
“The poorest man may, in his cot-
tage, bid defiance to all the forces of
the crown. It may be frail; Its roof
may shake; the wind may blov through It;
the storm map enter; the rain may enter;
but the king of England may not enter;
all his forces -dare not cross the thresh-
old of the ruined tenement.’
We must, therefore, carefully examine Sec-
tion 6 of Article 1525b,V.POC., wherein it provides
for obtaining a search varrant, to detennlne whether
It is reasonable or unreasonable In the light of the
authorities and the statutory and constitutional pre-
cepts.
It must be observed initially that Article
1525b, Section 6, V.P.C., Is a particular authority
for a search warrant to be used In connection with
the administration. of the duties of the Live Stock
Sanitary Commlssion. Were it not for the passage of
such section, a search warrant vould have to be ob-
tained under the authority of Title 6 of the Code of
Criminal Procedure, vhlch applies to search varrants
generally and vould be governed by the provisions of
Article 517, V.C.C.P., which follovs:
Bon, D. A, Davidson, Page 5, V-676.
"Any peace officer to wha a search
warrant is delivered shall execute it vlth-
out delay, and forthwith return it to the
proper magistrate. It must be executed
vlthln three days frcm the time of Its ls-
suance, and shall be executed within a
shorter period if so directed in the var-
rant by the magistrate.”
There is much authority to the effect that
under a search warrant obtained under a statute which
authorizes but one execution, and therefore one entry,
reentry of the premises at a later date and relnstltu-
tlon of a search under authority of the original search
warrant Is illegal, and renders the evidence obtained
thereby lnadmlsslble. ~Davls v. State, 113 Tex. Cr. R.
421, 21 S. W. (2d 509; Rlppy v. State, 122 Tex:Cr.
1 2d) 619; Coburn v. State, 78 Okla.
~~.1E>Z,si4jj.p. (2d) 483; State v. Moran 103 W.
138 9. E. 366; "Search and Selzureh by Corn-
ellus,'&d Rd., Section 224, page 530.
We are, however, confronted in this Instance
with a statute authorizing entry and reentry for a per-
icd of thirty days under a search varrant, which is to
be used only in connection with the administration and
enforcement of duties Imposed In the Act designed to
provide safeguards and controls over diseased live stock
and domestic fovls. It becomes pertinent to examine
that statute to observe what are the duties and the au-
thority with which the peace officer will be associated,
as this will cast light on the “reasonableness” of the
search under such search warrant.
Section 1 of Article 1525b, V.P.C., Indicates
that the Live Stock Sanitary Commission shall “protect
all cattle, horses, mules, asses, sheep, goats, hogs,
and other live stocks and all domestic animals and domes-
tic fovls of this State from infection, contagion or ex-
psure to the infectious, contagious and communicable dl-
seases enumerated In this Section, to-vlt: Tuberculosis,
anthrax, .glanders, Infectious abortion, hemorrhagic septi-
cemia, hog cholera, malta fever, foot and mouth disease,
rabies and other similar and dissimilar contagious and
infectious diseases of live stock recognized by veteri-
nary profession as infectious or contagious; also rabies
among canines) and Sacillary White Dlarrhea among fowls
, > * It shall be the duty of the Commission. D ~ to
Pen. D. A. Davidson, Page 6, V-676.
establlrh auarantiner vithln the Stat4 OS Tex8s on
cattle, hor8e8, mules, asses; sheep, goats, hog8 and
other live Stock, domestic animals and domestic fovls,
also counties, districts, areaa, premlaes,
lands,pas-
ture9, lot9, ranches, fang, flelde, ranges, thorough-
fares, buildings, barna, stables, stock yards, pens
and other placeswhenever said Commission ascertains
that any of said dlsetIses or the agency of transmis-
sion thereof exist in any of sold places or among any
of said live stock, domestic animals or domestic fowls,
or that any of aald places, live 9tock, domestic anl-
mals, or domestic fowls are exposed to any of said
diseases or to the germs fir agency of transmlsalon of
any of said diseases. . .
Section 2 of the statute provides, In part:
"Whenever it is determined by Veter-
inarians in the employ of the Live Stock
Sanitary Commlsslon that any contagious,
lnfectlou9, or communicable disease exists
among any live stock or domestic animals
or domestic fovls, In the State of Texas,
or on any land or premises or other places,
or that any live stock, domestic animals
or domestic fowls, premises or other places
have been exposed or are exposed to the
agency of transmission of any infectious,
contagious or communicable disease, such
exposure or infection shall be considered
as contlnuln until the Live Stock Sanitary
Commds eradicated the same through
its prescribed methods under authority of
lav and of the rules and regulations zf the
Live Stock Sanitary Commission. . . O
Section 3 of the statute provides for the ea-
tabllshment of quarantines to prevent the spread of anl-
ma1 diseases, and Section 4 provides, in part, that any
person who shall "ship, drive, drift, le$d, haul,truck,
carry or In any manner move or transport any animals
from any "county, district, area, premises, pasture,lot,
pen, yard, stock yard, field, barn, stable, building,
enclosure, or other place which Is under quarantine
shall be guilty of a misdemeanor.
Section 5 provides for the further establlsh-
ment of quarantines prohibiting the movement of animals
which are disease carriers, and provides that anyone
Hon. D. A. Davidson, Page I, V-676.
violating 8uch section shall be guilty of a misdemeanor.
Section 9 provides for the obtainment of a
health certificate from a veterinarian recognized by
the Live Stock Sanitary Commlsslon for any of the anl-
mals covered by the statute which are moved into Texas,
and provides that anyone violating such section shall
be guilty of a misdemeanor.
Section 11 provides that cattle moved into
Texas, except range or stocker cattle, or cattle shlp-
ped for Immediate slaughter, shall be accompanied by
a tuberculin test chart, and provides that anyone vlo-
latlng such section shall be guilty of a misdemeanor.
Section 12 ‘provides for the vaccination and
dipping of hous In accordance ulth spec
and provides that anyone violating such section shall .
be guilty of a misdemeanor.
Sections 13 and 14
of cattle for tuberculosis,
tle found to have a positive
tine of such cattle found to have tuberculosis,
Section 14 specifically provides, in part:
n
0 1 0 Any person, firm or corporation
who shall sell, trade, barter, give away,
or loan, or drive, drift, ship, haul, lead,
truck, or in any manner move, before the
Live Stock Sanitary Commfssfon has estab-
lished a quarantine on said positive react-
ors # any of said positive reactors from the
enclosure wherein they were located at the
time they were so tested, or that shall so
move any of said reactors from the place or
enclosure where they are under quarantine by
said Commission or that shall so move any
cattle located In said quarantined place or
enclosure during the existence of said quar-
antine without first securln$ a written per-
mit from the said Commission shall be guilty
of a misdemeanor.
Set tion 16 provides for the regulation of live
stock exhibitions, shows and fairs, and provides that any-
one violating such section shali be guilty of a misdemeanor,
Hon. D. A. Davidson, Page 8, V-676.
Section 21 provide9 for tlm canulrory burlal-
dr b&nlng of the carcasses of anlm
taglous or infectious diseasea, and provides that any-
one violating such section shall be guilty of a mlsde-
meanor.
We set out various provisions of the Act to
show the multitude of duties imposed on the Live Stock
Sanitary Commission and its employees, and the numerous
offenses that may be committed under the statute.
It 19 a comprehensive act covering much of the
field of live stock and domestic fovl regulation and con-
trol. One need. be but ~sllghtly familiar vlth the many
animal diseases, the control of vhlch is covered by the
Act, to realize that such control requires continuing
and constant aupervi#lon and observation, and that vlth-
out such supervision and 4bseWatlon the enforcement of
the statute would be hindered. The live stock which
have been exposed to disease may take days before they
show symptoms of the disease that may be diagnosed.
It is provided In the Constitution of Texae,
Art. 16, 3 25, that:
“The Legislature may pass laws for
the regulation of live stock. . . .n
The function, then, of the peace officer who
will accompany the veterinarian in conducting the search
under the search warrant authorized by Section 6 of Art-
icle 1525b, V.P.C., is that of enforcement, as in his
capacity as a peace officer he Is clothed with author-
i ty to make arrests . Enforcement of the statute 1s an
essential to its effective administration. The “reason-
ableness” of a search and seizure, under such a search
varrant which authorizes entry and reentry for thirty
days after Its issuance, must be determined ln the light
of vhat 1s to be accomplished by such authorized actl-
vlty.
In view of the fact that the search warrant
authorized by Section 6 of Article 1525b, V.P.C., Is
so clearly allied with the full and adequate adminls-
tration of the act, we think a search properly lnsti-
tuted and performed under the authority of a search
warrant complying with the provisions of that stat-
ute would not be unreasonable and vould not be vlola-
tlve of the provlsion;h;; Arti,cle 1, g 9, of the Con-
stitution of Texas. , of course, assumes that
Hon. D. A. Davidson, Ppge 9, V-676.
such search varrant is in full ccmpllancs vlth the con-
stitutional provisions requiring “probable cause’, the
dsscrlptlon of the premises to be searched and the sup-
porting oath or affirmation, each of vhlch 1s essential
to the validity of the search varrant, and each of which
must be governed by the facts peculiar to the situation
in question.
We think it not inappropriate to note the case
of Armstrong v. Whltten, 41 F. (26) 241, decided by the
Federal District Court for the Southern District of Texas.
Judge Hutcheson, in this case, was passing on the~valld-
ltg of Article 1525c, V.P.C., as a police measure, vhlch
statute provided for fever tick eradication, under the
regulation of the Live Stock Sanitary Commission, and
the administration of vhlch was closely associated vith
Article 1525b, V.P.C. Incidentally, Section 24 of Artl-
cle 1525c, V.P.C ., provides for obtaining a search war-
rant similar to that under Article 1525b, V.P.C ., but
in the tick-eradication statute the search warrant is
effective for sixty days. In that case, vhich sustained
the validity of Article 1525c, V.P.C., the Court observ-
ed:
9,. . . It seems to me now, however, that
the paramount. consideration in this case is
that the Legislature has undertaken, by a com-
prehensive scheme, to eradicate the fever tick,
and that all the provisions of the act are de-
signed for, and should be considered in the.
light of, that purpose; . . .
”
. D m The Legislature, having full pover
to do so, has undertaken by a comprehensive
scheme, a valid and constitutional purpose, to-
vit: to eradicate the fever-carrying tick from
the cattle of this State, and that all the pro-
visions of the act are designed and measured
to that end.
“That the Legislature has the right to ln-
stltute and carry out methods of tick eradlca-
tlon under the general police powers of the
state, and, that especially under the provls-
ions of Article 16, Section 26, of the Consti-
tution It has the right to require plaintiff
and others similarly situated to take such
mea9ure9, adopt such precautions, and put into
Hon. D. A. Davidson, Pago 10, V-676.
operation such actlrltles as vi11 at least
constitute a good-faith endeavor to free
the state of the menace and burden at. vhlch
the lav is aimed, thst, this being so,plaln-
tiff’s bill presents no squity for relief,
and his prayer for injunction should be
denied .’
The provisions of Article 1525b, Sec-
tion 6, Vernon’s Penal Code, which author-
izes the lsslaance of a search vqrrant per-
mitting entry and reentry thereunder for
a period of thirty days after issuance when
a peace officer shall accompany a veterln-
arlan employed by the Live Stock Sanitary
Commlsslon in exercising the authority con-
ferred by that statute, are valid, and a
search properly instituted and conducted
under authority of a search warrant vhich
fully complies vlth such statute would not
be unreasonable, as a matter of lav, with;
in the lnhlbltlon of Article I, Section 9,
of the Constltutim of Texas. The “reason-
ableness” of such varrant depends upon the
facts of each situation.
Yours very truly
ATTORNEYGENERALOF TEXAS
APPROVED:
ATTORNEYGJZRERAL
.
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