Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31. 1982
MARK WHITE
Attorney General
Honorable Mike Driscoll Opinion No. mJ-5f38
Supreme Court Building Harris County Attorney
P. 0. BOX 12546
Austin, TX. 76711. 2546
1001 Preston, Suite 634 Re: Whether the Harris County
512,475.2501 Houston, Texas 77002 sheriff has a duty to seize
Telex 9101674-1367 and impound stray livestock
Telecopier 5121475-0266 within the city limits of
Houston
1607 Main St., Suite 1400
Dallas. TX. 75201-4709 Dear Mr. Driscoll:
2141742-6944
You have asked the following question:
4624 Alberta Ave., Suite 160
El Paso. TX. 799052793
Does the Harris County Sheriff have a duty to
915,533.3484 seize and impound estrsy livestock and livestock
running at large within the portion of Harris
County which is within the corporate limits of the
,220 Dallas Ave.. suite 202
city of Houston?
Housk,“. TX. 77002-6966
7131650-0666
Chapters 142 and 143 of the Agriculture Code contain the statutes
governing "estray livestock and livestock running at large" to which
606 Broadway, Suite 312 you refer in your letter and brief. See Tex. Const. art. XVI, 923
Lubbock. TX. 79401-3479
(legislature may pass laws regulating livestock). Included in these
6061747-5236
two chapters are provisions that impose upon county sheriffs a duty to
seize and impound certain animals. Section 142.003 provides that upon
4309 N. Tenth. Suite I3 receiving a report of the presence of an estray upon a person's
McAllen. TX. 76501-1665 property, or upon public property, "the sheriff or the sheriff's
5121682-4547 designee shall impound the animal and hold it for disposition...."
-See Agric. Code 5142.002 (definition of "Estray"). sections 143.031
200 Main Plaza, Suite 400 and 143.080, which are contained in subchapters B and D of chapter
San Antonio, TX. 76205-2797 143, respectively, provide that the "sheriff or a constable of the
51212254191 county or area shall seize and impound" any animal mentioned in those
subchapters that is illegally running at large. Since you have
in Equal Opportunityl
inquired only about the duties of the Harris County Sheriff vis-a-vis
Affirmative Action Employer "estray livestock" and "livestock running at large," we will only
construe these three sections, as they are the ones that deal with
this subject.
Sections 143.031 and 143.080 apply only in a "county or an area
within a county" within which subchapters B and D have been voted into
effect by the local "freeholders." Agric. Code §§143.024; 143.074.
See also §§143.026; 143.076 (procedures for repeal of adoption of
subchapter). The applicability of section 142.003, on the other hand,
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Honorable Mike Driscoll - Page 2 (IIW-588)
is not dependent upon an electio~n. For purposes of this opinion, we
will assume that subchapters B and D have been voted into effect in
Harris County. See Attorney General Opinion M-650 (1971) (predecessor
statutes voted into effect in 1932). We will further assume that all
or part of the city of Houston "as included within the election
districts wherein the stock law elections were held.
You contend that your question should be answered in the
negative. As we understand it, your argument is essentially as
follo"s: (1) Houston is a home rule city; (2) as such, it possesses
all powers not denied by statute or by the Texas Constitution; (3)
provisions of the Houston city charter, and an ordinance enacted
pursuant thereto, empower the city to regulate estrays and livestock
running at large within its corporate limits; (4) since this
responsibility rests with the city, the foregoing provisions of the
Agriculture Code should not be construed to be applicable within the
Houston city limits.
Home rule cities do have broad powers, see Tex. Const. art. XI,
55; V.T.C.S. art. 1175; Lower Colorado River Authorityy v. City of San
Marcos, 523 S.W.2d 641 (Tex. 1975);): Forwood v. City of Taylor, 214
S.W.Zd 282 (Tex. 19481, but those nowars sre2 far from absolute. Thev
are always subordinate to the power of the legislature. See Tex:
Const. art. XI, S5. In this instance, the question is not whether the
city of Houston is empowered to regulate livestock within its
corporate limits. The city's charter clearly authorizes it to do so.
Instead, it is whether the city of Houston has exclusive authority in
this area. This is a question of legislative intent. We may answer
your question in the negative & if we conclude that the legislature
meant for the relevant Agriculture Code provisions to have no
applicability within the corporate limits of a home rule city with
charter provisions and ordinances authorizing it to regulate estrays
and livestock running at large within its corporate boundaries.
The relevant provisions of subchapters B and D of chapter 143 do
not, on their face, preclude home rule cities from being included
within an election district in which an election is held for the
purpose of voting those provisions into effect. Nor do we perceive
any basis for reading into these provisions sn implied exception for
home rule cities. If anything, the wording of these provisions
suggests that the legislature intended that s city, or portion
thereof, may be included in such election district. Sections
143.021(a) and 143.071(a) both state that "the freeholders of a county
or an area within a county may petition the commissioners court to
conduct an election for the purpose of determining" whether the
animals named therein will be permitted to run at large "in the county
or area." (Emphasis added). See also §§143.021(d); 143.071(d)
(petition to describe boundaries of area in which election is to be
held). Nothing in this language suggests a legislative intent to
exempt home rule cities from a "county or area within a county." In
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1.
Honorable Mike Driscoll - Page 3 (MW-588)
this context, we note that the quoted language is not significantly
different from the language that appeared in the predecessor statute,
viz., "county or such subdivision of a county." V.T.C.S. art. 6954.
In construing this language, the court in English v. State, 292 S.W.
229 (Tex. Crim. App. 1927). said that it found no evidence of
legislative intent not to allow incorporated cities -- even those with
ordinances authorizing them to regulate livestock -- to be included in
election districts in which the state stock laws were voted into
effect. The court said:
This court is called upon to determine whether...
it is legal to include in the district wherein the
election was ordered the territory embraced within
the incorporated city of Port Arthur.... It is
true that the ueoule within a citv are not
dependent upon the election. but the city might,
by ordinance, prohibit stock from running at large
within the incorporated limits. This was known to
the Legislature, however, when the statute was
enacted, without providing that in defining a
district the commissioners' court should not
include the territory embraced in any incorporated
city. ... Nothing in the language [of the statute]
can, in the opinion of the writer, imply any
intention or direction that the people of the
incorporated cities within the counties might not
participate, [even] though such cities might, by
ordinance, protect themselves against stock
running at large within their boundaries. The
language used with reference to the entire county,
and the manifest intent that the election should
be one in which all freeholders, whether urban or
suburban, could participate, is illustrative of
the legislative intent.... (Emphasis added).
292 S.W. 230. We recognize that the English court was not dealing
with a home rule city, but in light of its reasoning and approach, we
see no reason why it would have reached a different conclusion if a
home rule city had been involved.
It has been suggested that certain cases which preceded the
English case stand for the proposition that the predecessors of the
current state stock laws could not be given effect within the
corporate limits of a city. The argument, we assume, is that if the
former statutes could not be given effect therein, the current ones
cannot as well. We will briefly consider these precedents, which, as
the English court observed, "are not harmonious, but somewhat
confusing." 292 S.W. at 230.
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Honorable Mike Driscoll - Page 4 (MW-58s)
In Reuter v. State, 67 S.W. 505 (Tex. Crim. App. 1902), the court
held that an election to prohibit livestock from running at large
within Dallas County could have no effect within the city limits of
the city of Dallas, because the city's legislstively granted charter
gave it exclusive authority to control livestock within its
boundaries. In Neuvar v. State, 163 S.W. 58 (Tex. Grim. App. 1914),
however, the court held that since the state livestock laws did not
preclude incorporated cities from being embraced within the territory
within which those laws could be voted into effect, the county
elections in question were not invalid because the election districts
comprised incorporated cities. The court said:
None of the statutory enactments providing for the
adontion bv vote of either of said stock laws
excluded the incorporated towns or cities from
being embraced within the territory designated
within which such stock law could apply. On the
contrary, all the statutory enactments clearly
provide that the whole of the county, which, of
course, would embrace any and all incorporated
cities and towns therein, as well as when the
election is for any subdivision of such counties,
shall or may be included.... (Emphasis added).
163 S.W. at 59-60. See also Bishop v. State, 167 S.W. 363 (Tex. Crim.
App. 1914). But in Cowand v. State, 202 S.W. 961 (Tex. Grim. App.
1918), the court followed Reuter, rather than Neuvar or Bishop, and
reached the same conclusion that it had reached there. On the other
hand, in English v. State, supra, the court held that a county stock
law election was not invalid because the election district embraced
the city of Port Arthur. Finally, in Lock v. Morris, 287 S.W.2d 500
(Tex. Cl". App. - Texarkana 1956, writ ref'd n.r.e.), the court,
citing Bishop, Neuvsr, and English, refused to invalidate a county
wide election on the ground that residents of the city of Jefferson
had voted in it. The city was incorporated, and it had enacted an
ordinance prohibiting livestock from running at large within its
corporate limits.
The Neuvar, Bishop, English, and Lock cases stand for the
proposition that the state stock laws may be given effect within the
iimits of a city. To the extent that they reach a different
conclusion, moreover, Reuter and Cowand are clearly distinguishable
from the case at hand. In those two cases, the court emphasized that
the legislature had specifically given the city of Dallas the
exclusive power to regulate livestock within its corporate limits. It
held, in effect, that since the legislature clearly intended the city
of Dallas to have complete authority in this area, it must not have
intended the general state livestock laws to be given effect within
the Dallas city limits. The city of Houston, however, is on a
different footing. Although it has exclusive jurisdiction over its
p. 2185
Honorable Mike Driscoll - Page 5 (MW-588)
streets and public grounds, article 1175, section 16, V.T.C.S.,
neither article 1175 nor any other law or legislatively granted city
charter provision about which we are aware confers upon the city the
exclusive power to regulate livestock within its corporate limits.
Since this is true, we have no basis upon which to reach the
conclusion to which the courts in Reuter and Cowand came, namely, that
since a specific law gave the city of Dallas sole authority to
regulate livestock, the general stock laws which could be voted into
effect in Dallas County could not be given effect within the Dallas
city limits.
Since the wording of the relevant provisions of chapter 143 of
the Agriculture Code does not suggest that those provisions cannot be
voted into effect within the corporate limits of a home rule city --
even one with charter provisions and ordinances authorizing it to
regulate livestock -- and since there is no evidence of legislative
intent to give the city of Houston exclusive authority to regulate
livestock, we conclude that if subchapters B and D of chapter 143 have
been voted into effect in the city of Houston, then they confer upon
the sheriff of Harris County the same duties within the corporate
limits of the city ss he has outside of said limits.
The remaining question concerns section 142.003. As we have
noted, the applicability of this section is not dependent upon an
election. It provides in part:
(a) A person who discovers an estray on that
person's property or on public property shall
report the presence of the animal to the sheriff
of the county in which the animal is
discovered....
(b) After receiving a report under Subsection
(a) of this section, the sheriff or the sheriff's
designee shall impound the animal and hold it for
disposition as provided by this chapter.
Just as we find no evidence that the provisions of chapter 143
cannot be voted into effect in home rule cities, we find no indication
that section 142.003 was not intended to apply within the corporate
limits of such cities. We therefore conclude that the duty imposed
upon the sheriff by this statute exists both within and outside of the
corporate limits of the city of Houston.
SUMMARY
Section 142.003 of the Agriculture Code is
applicable within the corporate limits of the city
of Houston. Sections 143.031 and 143.080 are also
applicable within said limits if subchapters B and
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. -
Honorable Mike Driscoll - Page 6 (MW-588)
D of chapter 143 of the Agriculture Code have been
voted into effect within the corporate limits of
the city.
wa
WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
George Gray
Jim Moellinger
p. 2187