Untitled Texas Attorney General Opinion

THE ATTORNEYGENERAL OF TEXAS AUSTIN ii.TEx~s WJLL WILSON A-l-l-O-GENERAL my 4, 1960 Dr. Ft.G. Garrett Executive Director Texas Animal Health Commission State Office Building Austin, Texas Opinion No. W-835 Re: Whether it Is mandatory un- der the provisions of Sec. 23A.,Art. 152513,Vernon's Penal Code, that the Texas Animal Health Commission designate and begin bru- cellosis work in counties in the order in which valid Dear Dr. Garrett: petitions are received. Your letter of March 24, 1960, requesting the opinion of this deDartmetIt on the matters stated therein reads in part as f0ii0ws: "Specifically, an opinion is desired on the subject of whether the Commission may, at its discretion, postpone the beginning of brucellosis work in counties which have,sub- mltted valid petitions until such time as it is economically feasible and scientifically sound to begin such work, or is it mandatory that the Commission designate and begin bru- cellosis work in counties in the order in which valid petitions are received." Article 7009 of Vernon's Civil Statutes changes the name - of the Livestock Sanitary Commission of Texas to the Texas Animal Health Commission and provides that hereafter all or any references thereto or laws relating to the Live- stock Sanitary Commission shall apply to the Texas Animal Health Commission, and all appropriations and benefits should be available to and apply to the Texas Animal Health Commission. Dr. i?.G. Garrett, Page 2, (WW-835) The pertinent provisions of Section 23A, Article 1525b, Vernon's Penal Code, concerning your question are set out as follows: "(1) Purpose. It Is the purpose of this Section to bring about the effective control and eventual eradication of bovine brucello- sis In the State of Texas and to accomplish that purpose in the most effective, practical and expeditious manner." "(4) When seventy-five percent (75%) of the cattle owners in any area or county In this State, as reflected on the current tax ~0116, owning at least fifty-one percent (51%) of the cattle within that affected area or county, as reflected by said tax rolls, shall 'petitionthe Livestock Sanitary Commission of Texas to have such area or county, designated as a modified certified brucellosis free area, the Livestock Sani- tary Commission of Texas x declare the coun- ty or area to be a brucellosls control area. If such-area follows county boundary lines it shall be designated as a 'County Brucello- sis Control Area,, the name of the county identifying the area." (Emphasis added) “(5) In the event that, for any valid reasons, the Livestock Sanitary Comlssion of Texas should decide that conditions within and surrounding the county originating such petition make It impractical to operate a bru- cellosis control area within the boundaries of such county, then the Texas Livestock Sanitary Commission is authorized to add additional territoryto such county area in reasonable amount, O s elf "(11) In order to effectuate the provisions and purposes of this Section',the Livestock San1.tary Commission of Texas is hereby author- ized to promulgate such rules and regulations and to require such reports and records as may be necessary D o *" Clearly, the Texas Animal Health Commission was author- ized by the Legislature to establish its own rules and regu- lations in bringing about the effective control of brucellosis in Texas and may be governed, In establishing the county Dr. R. G. Garrett, Page 3, (w-835) brucellosis control areas, by the conditions existing in particular areas and the needs as to effective controls on a statewide basis rather than governed by the date a petition for the.establishment of a control area might be filed with the Commission by cattle owners In a particular area. If it is determined by the Commission that a control area is more urgently needed in a county filing a valid petition later than a county where there is no great emer- gency, this determination would be controlling rather than the filing dates of the two valid petitions and there would be no abuse of discretion on the part of the Commission. The Legislature has authority under the State's police power to create the Livestock Sanitary Commission and to empower it to establish, maintain and enforce quarantines authorized by law, as it may deem necessary, as well as power to authorize the Commission to make reasonable rules and regu- lations to prevent the spread of contagious disease among livestock. Mulkey v. State, 83 Tex. Crim. 1, 201 S W 9 ‘(1918);Grandy v. State, a'/Tex. Crlm. 197, 220 s.w: 33; ?1920). In 1 Sutherland Statutory Construction, 3rd Edition, Page 75, Section 313, it Is stated as follows: " s the principal exercise of the legls- lative function is the determination of princi- ples in the establishment of basic policy and that the remainder of a statute merely outlines in such detail as seems desirable the machinery by which the basic principle is made effective. The legislative determination of all these de- tails is impossible and thus the creation of special administrative agencies for their deter- mination is, in fact, a basic policy determina- tion by the legislature. Thus, the grant to these agencies of rule-making power consistent with the general principles announced is not a delegation of the principal legislative functlon-- that of policy determination--but is at most the delegation of a secondary legislative function-- the function of making structural adjustments, establishing procedures and regulations for the achievement of the principal policy. . o *" Statutes which are enacted for the protection and preser- vation of public health give wide latitude in rule-making powers to an administrative body such as the Texas Animal Health Commission. In 1 Sutherland Statutory Construction, 3rd Edition, Page 77, Section 314, it is further stated: . ‘ Dr. R. G. Garrett, Page 4, (WW-835) II . . . Where, however, frequent adjust- ment or detailed expert knowledge of the field is necessary, a legislative delegation with general policy standards is valid. "The validity of a particular standard therefore depends primarily on the field of activity regulated. Thus, in the field of public health, safety, and morals gener- al and Indeterminative standards of policy have usually been sustained 'andwide dis- cretion has been left to administration. . . .tt Also, as set out in Subsection 4, Section 23A, when certain people "shall" petition the Texas Animal Health Commission to have a certain area designated as a bru- cellosls control center the Commission 'may" declare a county or area to be a control center when a valid peti- tion has been filed by 75s of the citizens owning 51% of the cattle in a county or area of the State. The use of the verbs "shall" and "may" make the provision as to the filing of a petition mandatory and the provision as to the establishment of control areas only directory and It follows that the commission is given needed discretionary powers in determining in which area work should first begin in carrying out an effective brucellosis control program regardless of the filing date of a petition. In 3,Sutherland Statutory Construction, 3rd Edition, Page 116, Section 5821, it is stated as follows: "Where both mandatory and directory verbs are used in the same statute, or in the same section, paragraph or sentence of a statute, it is a fair inference that the legislature realized the difference In meaning, and intended that the verbs used should carry with them their ordinary meanings. Especially is this true where lshallt and 'may' are used in close juxta- position in a statutory provision, under circumstances that would indicate that different treatment is Intended for the predicates following them. O s *" It Is apparent from the foregoing statutes and author- ities and, therefore, the opinion of this department that the Texas Animal Health Commission, under its rule-making powers granted by the legislature, may designate.and begin brucellosis work in counties and areas in any manner it may Dr. R. G. Garrett, Page 5, (~-8%) see fit, this being entirely discretionary with the Commission, so long as the stated purpose of this act to control and eradicate bovine brucellosis is effectively carried out. SUMMARY The Texas Animal Health Commission may declare a county or area to be a brucellosis control area if and when it is deemed practical to carry out the purpose of this Act, the time and place being entirely discretionary with the Commission, and it is not mandatory under the provisions of Section 23A, Article 1525b, Vernon's Penal Code, that the Commission designate and begin bru- cellosis work in counties in the order In which valid petitions are received. Very truly yours, WILL WILSON ;;xrza+ Iola B, Wilcox Assistant IBW:mm APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Wallace Finfrock John Reeves MariettaMcGregor Payne Marvin F. Sentell REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore