Hon. J. E. McDonald oplnlon Ho. TV-923.
Co8misslonerof Agriculture
State Land Office Bldg. Re: Constructionof Sec-
Auatln, Texas tlon 11, House Bill
~;~~~~"a 51st Leg-
Deer Sir: .
Reference Is made to your request for an opln-
Ion es to the evellebllltyof the fees collected by the
Comnlsslonerof Agriculture In accordancewith the pro-
vlslous of Section 11, House Bill lio.35, Acts 51et Leg-
islature,page 112'7,forthe purposes stated therein.
Section 1 of House Bill No.35 reeds es follows:
"There Is hebeby establishedin this
State the following procedure for vegetable
plant certlflcetlon:
."The purpose of the vegetable plant
certificationlaw Is to provide for the
purchaser of vegetable plants the benefit
of honest end reliable opinion of the free-
dom from such dlseetiesend fungus infection
es can be determined by field %nspectlon
prior to preparing the plani% for shipment
to insure in so far es possible, proper hand-
llng end peckeglng the plants certified.
"The Commlsslonerof Agriculture 1s
charged with the duties of preserlblng sueh
rules and regulations es ere necessery to
the enforcementof the law. The eppolht-
meut of qualified lnepectors,collection of
fees, Issuance of tags end the ectuel en-
forcement of the law.
"The flrm or Individualholding such
license end meeting the requirement of in-
spection are issued such certificationStampS
or tags es may be deemed necessary, such
stamps or tags to be affixed tt containers
Cafiying the certified plants.
Hon. J. E. McDonald, page 2 (V-923)
Sections 10 and 11, read, respectively,as fol-
lows:
"Sec. 10. Inspectionfees shall be es
follows for tomato, cabbage, broccoli, col-
lards, cauliflower,pepper and onions:
"At the time of applying for the certl-
flcatlon a minimum fee of Five Dollars ($5)
shall be paid, and for each acre over five
(5) acres the fee shall be not less than
twenty-fivecents (25#) nor more than One
Dollar ($1); this fee to be paid et the
time of application. The certlfleatlon
tag or stamp to be affixed to the conteln-
er shell be ten cents (log) per thousand
plants contained.
"Sec. 11. (1) Applicationfor certl-
flcetlon of sweet potato plants shall be
made ~prlorto harvesting time the preceding
season. The fee to be paid at the time the
application 1s made for this Inspection
shall be a mlnlmum of Five Dollars ($5) and
for acreage of more than five (5) acres the
added fee of not less than twenty-fivecents
er acre nor more than One Dollar ($1)
iz?icEe shall be paid All plants lifted
or shipped shall be pa&caged ln bundles of
one hundred (100) plants and ~8label or tag
shell be affixed to each bundle. The price
of labels or tags shall not be less than *.
14) per label nor more than three
(3#
One cent f per label.
cents
“(3) Out of the feks collected under.
this Act, the Chief of the I&rkets and Ware-
house Division of the Department of Agrlcnl-
ture shall be paid In addition to the amount
Hon. J. B. MaDonald, page 3 (V-93)
of his salary in the general approprla-
tion bill In the sum of Four Hundred and
Eighty Dollars ($4&o) per annum; which
amount Is hereby appropriatedfor said
purpose." (HumberIngof paragraphs add-
*) ,
Paragraph'3 of Seotlon 11 olearly and deflnlte-
ly makes a speclflo appropriationof $480 out of the fees
collected for the purpose of supplementingthe annual
salary of the Chief of the Markets and Warehouse Dlwl-
SiOU, as fixed in the general appropriationbill for the
ourrent biennium. Paragraph 2 of Section'11 does not
aontaln the words "whloh amount is hereby appropriated
for sald purpose" found In paragraph 3. Therefore, we
must determine from the entire Act whether it was the in-
tent and purpose of the Legislature to appropriatethe
balance of the fees oolleoted by the Department of A@-
oultura for the purposes mentioned In paragraph 2.
We quote from Attorney General's oplnlon Woo.
V-887, as follows:
"Se&ion 6, Artlole VIII of--theCon-
stitution of Texas, in part,,eads: i
"%o money shall bedrawu from the
Treasury, but in pursuanae of speoifio ap-
propriationsmade by law; nor shall any
approprlatlonof money be made for a long-
er period than two years.'
"In the case of Pickle v. State Co -
troller 91 Tex. 484,
&Justice Gaines, :&%!$!oFEhs
Court, said:
"'It is clear that an appropriation
need not .bemade In the general approprla-
tioa bill. It 1s also true that no speoi-
Sic words are neuessary In order to q akm
anyappropriation;and It may be conoeded,~
that an appropriationmay be made by lmpli-
cation when the language employed leads to
the belief that such was the intent of the
Legislature.'"
In 39 Texas Jurisprudence205, Statutes.,SeOtim
J. E. McDonald. page 4 (V-923)
it Is said:
"It Is elementary that a statute
will be oonstrued in such manner as to
make It effeotlve - that i.s,enforceable
and operative - if it is falrlg susoep-
tible of suoh Interpretation. Thus where
two conatruotionsmight reasonablybe
given a statute, of whiob one will effec-
tuate the leglslatlveIntent and purpose
and make the act operative,while the
other will defeat such Intent and purpose
and render it inoperative,the former oon-
'struottonwill be adopted."
This law was enacted for the protectionof pur-
chasers of vegetable plants therein named by assuring
them as far as possible that the plants are apparently
free frontdiseases and pests "as determinedfrom,field
inspeotionprior to the lifting of the plants for sale
or 8hipment.v It is a matter of common knowledge that
the production of these plants Is a large and growing
industry in oertain looalifles of thie State. It is
also a~~wellknown faot that many states have eneoted
statutes prohibiting the Importationor sale of such
plants grown In 'pexas,for the reason that this State
has not heretofore had a law provfdlng for their pro-
per certlfloation. By the enactment of this law, the
Legislature Intended to not only give the producer of
such plants the protection therein provided,but to give
the producer nev fields in which to sell them.
If the Legislature has failed to make an appro-
priation of the fees collected for the purposes stated In
paragraph 2, Section 11, It necessarilyfollows that the
purposes of the law have felled. The appropriationape:
oifioallg made by paragraph 3, Section 11, also fails, for
the reasons no certifioationfees or fees for tags, stamps:
or labels will be oollected. You are not euthorlzedto
issue certlfloatlontags, stamps, or labels unless there
has been a "field inapeotion~priorto the lifting of the
plsnts for sale." Suoh tnsyieations cannot be made vith-
out qualified lnspeotorsto make them. you cannot ob-
tain such lnspeotors unless funds have been made avalla-
ble to pay them for their servloes. Therefore, if the
Legislature haspfaLled to appropriatethenfees you are
authorizedto,oollect and expend for the purposes stat-
ed in the law, the law must remain lneffeotlveand ln-
operatlve from Oatober 5, 19@, until such the as the
*
Ron. J. E. McDonald, page 5 (v+23)
. . :
Legislature appropriatessuch fees for the purpose of en-
fortzingits provisions.
We do not believe the Legislature intended swh
a result. We think the Legislature Intended to make the
law operative and enforaeable frcm Its effective date and
to make an appropriationof all fees oolleoted for the
pnrposes therein stated. and did make suoh appropriation.
S&h a ooiastrizotlon Is reasonable and neither violates
the ~provisionaof Seotloa 6, Artiole VIII of the Consti-
tution of Texas, nor any other provision of that docu-
ment.
Furthermore, the Legislature evidently believ-
ed it had appropriatedall the fees colleoted by the
language used in paragraph 2, Section 11, or It would
not have in plain language made the appropriationsin
paragraph 3 of the same seotlon. Otherwise, it would be
apparent that the Legislature had intentionallydone a
useless thing,by appropriatingfees whioh it knew oould
not~be oolleoted without an appropriationto enable you
to oolleat them.
Therefore, It is our opinion that Seotion 11
of~~F@tie~BlllRo.35, Acts 51st Legislature,Chapter 581,
pa e.1327,~~o'onsfltutes
a valid~approprlatlonof the fees
ahfoh the Commissioner of Agrioulture is authorized to
oolleot thereunder,for the purposea therein stated, for
a.period of years, beginning Ootober 5 199, the day it
beoomes effeotlve, and ending October 4, 1951.
SUMMARY
House Bill Ro.35, Aots 51st Legisla-
.ture, made a valid appropriationof all the
fees oolleoted thereunder by the Commission-
er of Agriculture for the purposes stated~
there&n for a period of two years, begin-
ning October 5, 1949, the effeative date of
the Aot,.and ending Ootober 4, 1951. A-G.
Opinions Ros. v-887, w-895 and authorities
there oited.
Yours very truly,
A'Rl'ORRRYCRRRRAL
OFTRXAR
Assistant