OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GRO”ERSELLER*
ATTORNEY GENERAL
Honorable Claude A. Williams
Chairman end Executive Director
Texas Unemployment Compensation
Austin, Texas~
Dear Sir: Re: Opinion No.
Were service ed on turpen-
tine farm e employment
compensatio d?L
r atea
questions.
We have your letter .L.
as r0u0w8:
lations and
the Cammiss
labor' lnolaaes all
on a farm in oonneo-
of thesc~l, the har-
e raising, :f,eeding oti.
estoak, bees, and poultry; or
etloy$th the
iala;.' ioh were
farm, also the paoklng, paokaging,
transp~orting, or.marketlng of those materials
or artlole.8. Such servioes do not oonstituta
tagrloultural labor', however, unless they are -:.
Honorable Claude A. Wllllams, Page 2
performed by an employee of t&a 6wner OP tenant
of the farm on whloh the materials ln their raw
or natural state were produoed, and unless snoh
prooessing, paoklng, paokaglng, transporting, or
marketing-is carried on as an inoident to ordiaarg
farming operations as distinguished tram manufao-
turing or commercial operations.
‘As used herein the term ‘farm’ smbraoea the
farm In the oralnarlly aooepted sense, and inoludes
stock, dairy, poultry,. fruit and truck farms, plant-
ations, renahe ,ranges, end oroharas. The term
‘farm* does not embraoe lumbering and roredtrp In-
dustry ror the purpose of thie Act.”
*On Ju4 2~. 19
above r6gulatian anii .,.
lathn 25;,
Regulation C&
‘The term *agrloultural labor’ includes all
services pertormed
. _’
(1) By an ~employee, on a E~ZIIL,in ‘~ooIqe0tl.o~
nith l&e. oultlvatlon or the so&l& the harree@
of orops, or.th$ raieing, $eeaihg;:tar managemn“&
or llyeetqok, .,bees i and poultqt @r
(2) By an 5mploy5e in ootieotion ritli the
prooeesIng of ag%lolen from mat5rial.n which rclre,~
prodaoed ti h 3arm, al50 the paoking,
trana ortlng, or marketing of thee5 m r”erlals
-- or,
art10 Pas. Sri&: servl~elr~do not oonatitute *agrLii
oulteal $abor’,.however, anlear theyz~5 p5.r~
formed by, an 5mplo~55 of the owner OT tenant of
the farmxui whlah ,thexia~allhl.s in thdr raw or
natural~etate were podtied; and ~151~s suoh pro-
oeselng, pasklng, paokaging, trans orting, q,~
marketing Is carriedQIIas e.nin01 xent to Or86narY
iarmIng opesatlons as dlstlngulshed rrom nanufao-
turlng or oommerolal operations*
“As used herein the term ‘farm’ embraass the
farm In the ordinarily, aooepted sense, and Innlades
stook, dairy, ponltrp, rrult and truck farms,
.,
Honorable Clahde A. Williams, page 3
lantatlons, ranohes, ranges, and orohards.
!&Ie term *farm* dors net embraoa Jqmberlng and
rorestrp industry for the purpose of this Aot.t
Regulation 25
'Agricultural Packing and Marketing Assoola-
tlons Sec. 19 (g1 (6) (D)
,The iaot t&t an lndlvldual is engaged ln
handling farm proauots does not or ltselr make the
services performed for him fagrloulturalt. Ser-
does are often perrormea by employees in oon-
nectlon with the paoklng, processing, packaging,
transporting or marketing for sale to oonsumers
or farm products whloh are~not a part of oralnary
farmlag operations but a:part o$: aomierolal~.tm.
manitfaottiring operations. ~*ma&~s~h~-ser~le*r ~'
are pertorpsd bye inbltld~ls~.~o'~ara:~~~~lo Hi,:b$‘:
sn ae~oolation~cir ~prodaoclra,~-ef~,thB~~.:t 3;a"'
produots in ~oonneotlonwith.whloh the seroloee
are perrormed were produoed by the members ,of
suoh aeaooiatlon, the aerrloea of sooh employees
are not exempt as agrioultural labor, since the
indlrlduale are employers ,of the assoolatlon and
not of a-partloular, produo5ti.t
..
*Gn Ihatlarr1, 194Dphc4 Gommlt~elon rwoiuded
Reg&tlon Z?&aad Regalatlok 25, abqljte. Thor6 ha8
been no~Gommlsaion Regulation 011thle subjsot~ nlnoo
the last mentioned-date.
lDpa.the anaotment oi the Unamploflasnt Gompen-
satlon Aot this Commlsslon began oolleotlng,taxes
iron the &gate Haml Storea, Ino. Its oontinued
to oolloot unemploymssat taxes rrom the named-employer
until Sanuary 1; ~1940, when 10 relieved the employer
of liability begiunlng January 1, 1940, in aooord-
anoe with Its deoislon dated Maroh 19, 1940, tihloh
read8 in part:
*It la therein stated that *The Wieergata Naval
Stores, Inoorporated, .operated what le~oanmonlp
called a turpentine farm near Wlergate, ln Newton
County Texas. The operation of a turpentine oamp
consists or the making, ~gathering and stilling ‘Or
crude gum into gum splrlts Andyresin. This opera-
tion is accomplished by chipping a live pine tree
_’
,~.’
Eonornble Claude Ai UIlllams,, Page &
a ndp qlo lngth e r ioa no upinto
. wh l.o a rhude
gum
Is oollsoted. ‘, Xh%s 5mtl5 ~gti 1s psrlodlo5lly
gathered and transported to the anmp st$ll
where same la pzooessed into the gum spirits 01
turpentine and resin. The orude gum is ordinarily
harvested or oollected during eight or nlne,montha
of each calendar year. The persons performing the
serrloe abovementioned are unskilled laborers who
work urider the supervision oi a. foreman.”
Wpon the basis of the lnformatlon presented,
it is the opInlon or this Commlsslon bnd it hereby
rules that services perrormed for you, of the kind
specified above are servloes which oome within the
exoeptlon afrorded agrioultural 1,abor
ll. Under the T5xas Vn5m loyDient Ofimpensatlon
Act and the Beg&t&O85 .-lea 8ed,‘~ w5$5 end a~ the
serrioee perio2meQ for the &inplQytir ag210tit~lr~5
labor and st5mpt?
*2., If, suoh servioes bid oonati$utta agrloal-
ture labor prior to January 1, 1940, my a *sfti.na
of contributions pa14 be mad5 as to? .,(a] t+xes
due after ADrIl 1. 19397, (b) taxes au0 .prSorto
April 1, 191397 - ---
"3. In the event that a refund wexe due tier-
gate Naval Stores, Inoorporatcd, for taxes pald
.
.
Honorable G1auds.A. WIlllams, Page 5
thi8. Commission whloh mire due prior to April 1,
1938, exoept ior’ the taot that Section 8 of the
Unemployment Compenaatlon Aot , Ar tl 01s 5221b-6,
Vernon’s Revised Civil Statutes. zrerented suoh
r~efund, would an act of the legisiature .makIng
appropriation or the amount or euoh refund and
authorizing payment to the employer be valid?
*4. 1l Question No, 3 is answered ‘yes’
how would such payment be aooompllshed and out
or what fund would it be paid?”
Article 5221b, Revised Civil Statutes of Texas,
provides that servfoes performed for wages under oer.taln
oiromastqoee constitute employment. under the Texas Dnem-
ployment Gcapensatlon Ant .,.
to the GosmiIleIoxi thst.;thep ~.:
tloha iiom ~fhd A&.~ Among ~~ ,~~;; .:
5221b Ie IJeotl~on 17 (g,)~:(5)
In view of this exemption the Commlsslon aotlng
under the authority of Article 5221b, Seotlon 9, enacted
the quoted regulations.
The regulation dIaolosae that tie Ga&esloa In-
tdndsd to llmlt the~tapa:.ragrloultorar.labQr” to that .&?&ox
pertormed on a farti,‘fia defined br~,ther; Xa all~,Inrrtanore it
is held that the term *farmu Is to be uudrretood. Ix Its or-
dinarr and. fo pular 8anae and that iz$‘~a traot o$ laud
tissd tar ra aleg oroplr~ an& reari 804 ,Gkwdon-Y.
Buster, 257 8: W. 2201 ll3 %!a, ,3 3 2) 16 Wo;de & Phrasds,
page 248.
The 8tat;es:::: of Golorado and Gounsotlout have adopted
regulations wlth ~substantlally the sams wording as themrsgu-
latlons of the Texas Unemployment Compensation %amleslon
regaralng agrioultural X.:abor* %:a suit for the oolleatlo~
of taxes assessed against q oonoern operating mushroom sheds,
styled Great Western EushroomGompany V. hIustr$al Gommlaslon,
82 Pao~; (26) 751, theSupreme~ .Gourt of Colorado said:
“We~oannot think ,the promulgated regulation
is other than~ln keeping wlth ~the clear intent ai
the enactment .v
__-.
Konorable Claude A, WUllama, Page 6
The oourt further disowaad the tact that the opera-.
tions in question ware oarrled out throughout moqt 0r ths peer, :
a&the parposs In the axamptlon of agrloultural labor was
that it was seasonal work thus It should not be contended that
the Legislature intended to exempt this type of anployment.
The court held that this was not agrloultural labor as defined
by the Commission.
In the oase of Park Floral Company V. Industrial
Commission, 91 Pao. 492, In the Supreme Court of Colorado,
the demand was made upon a floral oompany for payment of taxes.
The company contended that this operation was within the exsmp-
tion of agrloultural labor and further that the promulgation
of the Commission ruling constituted an arbitrary attempt by
the Commission to restrlot and limit the ordinary meaning of
the term *ag.rloultural labox”. The eorurt .thsrs said that this
objeotlon.~Is roreoloerd by the reoent zonounocupent @f that::..~ ,.
cow-t l.q the oam of: (Priat We&em Mm, %I ,q,oq Qomg.ang,:*i ..~.
~Q.U~ ~.~,
trial Ccmmlasl~,‘~su~ra~ ~~l%eooart in thl~~,ins anob:altWhdld
that the’ dalegatlon’of the autherlty to enaot r’uies and regu;
latlons was not an Invalid delegation of legislative authority.
In the dase or Ii Duys 6c Co et al V. Tone,
5 Atl. (26) ,23, the Supmu& Court o? &%%O~t held that
the regulation of the ConmIssion of Connedflout to~be valid,
and that it did not riolats ths aqua2 protestion or due pro-
oem olausas or the Ganstltutlon.'Bte.ooart ti thXs opinlmi
redswed the definition or *iarm laborer* and *agr$oulture*.
Aoting wider the s=e rule msklng p~wsr as lt 'pro-
vided ,in the Colorado Unemployment .Watate, the Tsxai Comais-
slon enaoted the mme regulation as that of Colorado,
Your regulations or Deosmber 5, 1936, and July 2,
1937, stated ihat they lntsndsd the teSln wfarma to ambraoe,
end undpr this dethltlti the turpsntlhe industry would not
be *agrIoultural labor*. The power or the Texas Commlsslan
to ennaot their regulations-Is awtained by the Ii. Duys k Corn-
pany .snd Park Floral aaees, supra. However, the aotlcm of the
CommIsalon an Maroh 19, 19J,O, In reaoinding its rsgulatlon,
refleots a ohangs In their attitude. They must hare Intended
that the term should have the broadest meaning in liner with
the modern trend.
You have furnished a photostatlo oopy of the find-
ings oi raot and oonoluslons of law of the Distriot’ Court
of the United Statas for the Middle Distriot of Georgia in
the oase’of Gso. I. Shelton, et al, plaintiffs, VS. Marion
H. Allen.
Honorable Claude A. Wllllame, Page 7
The applloant oites the ruling or the oourt as a
basis for the olaimed exemptioni But, let it be reoogulzed
that the Statutes of Texaa.oontain no auoh exemption as that
of Title 12, Section IlAlj, U. S. C. A. Further, this oaae
was disposed of on prooedural grounds without passing on the
merl ts.
In the oasa of United States Y. Turner Turpentine
Company in 111 Fedi (26) IJM, an opinion of the Clroult Court
of Appeals for the Fifth Clroult, holds that the producers of
crude gum are engaged in agrioultural labor. We call your at-
tention to ths raot that this deolslon is influenced, if not
based upon the fact that Ceorgla in 1939 had enaoted a stat-
ute providing that all orlglnsl produoars of crude gum and
their employsas ware depaarad to be farmsrs’lnso $ar as any
statutes or the Stats, ralata& : Ho euoh*~:s’tattita ox%&, or he
ever been on $ha~~statuttc ~QQ of Tsxal;‘.,i T@at~ aorfff .~s.f’ur.~~~~, ,~
ther lnfluenaad bl the Wdera T Statuta,‘.on tki’ib stibfhti~
The dtstlnotion between farming and that of out&g
and logging timber was reo,ognlzed by the Supreme Court of
Tennessee In the oaee of Robinson V. Stacklay, 61 S. W. (Za)
677.
In the aasi Pratt ,v..Cltyoi,Maaan, 1% a.,&..19lj >
the Uourt of Ap,psals~ of Claorgia wasp,oonstruing a mtinla2pal. .~
ordinsnae ‘,ot thr cltr or Yaeon, tilsh-r.aqulred that mar&ants :
or ‘others outside. the blty limits delir6rlng ~gooda la the
City to take out a dray lloonsd fur eaoh w&g& used in the
delivery. The facts ln that oase were that %he lndlrldual Sn
question was a farm& ln ,that ha raised ‘truok. ohlakens and
ducks on his farm. Also on said rarm was a m’ 1nara.?. water well
from whloh the individual took the mineral water and delivered
and aold, same ,wlthln the oity~ llmlts~ of ihe City of Maoon.
The court concluded that suoh license would have to be begtired
under tha‘taota~ and stated as rollowst
‘1. That said mineral water wa:s not a farm
product withln tha.meanl.ng ,of seotlon 1851 of the
Civil Code of 1910 and that. the requirement of
said ordlnanee as TV o taking out a lioense zas ap-
plloable to plaintiff In error.
“2. That the ract that plaintlfr in error
drew and bottled sa,id wster from a well located
on his own land, and that he was also engaged In
raising truck, chickens, and ducks, whioh were
.
Honorable Claude A., ~llllama, Page 8
also delivered by means of, said truok, dld not
-relieve him from procuring the ‘dray’ or ooou-
patlon lloansa as required by said ordlnanoa.*
In the case of Great Western Mushroom Company vs.
Industrial Comm., 82 Pao. (26) 751, the Supreme Court of
Colorado 5.n construing a similar statute said that the Lagis-
lature sought only to exempt seasonal labor suoh as farm
labor. This applloant, by its own admission, opar.ates nine
or ten months a year, and there is no showing that some work
is not done throughout the tmlve months of aaoh year. Can
it than be said that Is only seasonal labor as defined by
the Commission1 a regulations?
The statutory authority ror the regulations of
~Deo, 5, 1936,. and’fuly2, 1937, is asant sties.Artlola 522&b-9( a) .,,
The oonstltutlonaUty.~ of .rubstan$l ar l$tha s+nw ~egtilatl&ik .:
haa besn uphbld. by the. Suprama36urt .af Ooldr~$ulo~ In. park
Floral Co, v. Industrial Uomm.~,91 Pa@. (26) 492, and by the
yp;;;t.Court or Conneotlout in the oasa~of H. Duys & Company
. , 5 Atl. (2d) 23.
The authorities cited, together with that of Great
Western Hushroom Company,Y. Industrial Cokmlsslon, supra, give
ample support for the regulation and determination of your
Co~111&3slonprior to iknuary Jr 1940.
The’oourts in the Park IQoraLand H. Duys & Company
oases, aupra, 5ay that by the evolutionary prooassse attend-
ant upon our present day buaiuara methods many aotlvitles
formerly ambraoad in tarmlng hava beoome spealalleod or ra-
moved rrom the iarm.
Your rlrat question asksr
Wndar the Texas Unsmploymant Compensation
Aat and the Regulat-lons lndlahtad, were and a.0
the sarvloas performed for the employer agrloul-
ture labor and exempt?”
It la oar opinion that the dotermination of llabl-
llty by the Commlsslon upon the taxes aoorulng prior to Jan-
uary 1, 19&O, was supported by the resolutions quoted. That
being true, there can be no refund. Therefore, it is unneoes-
asry to answer your questions 2, 3 and J, regarding refunds.
,.% .;;
3 ‘~ .‘.
..-
Honorable Claude. A. Wllllams, Page 9
A part 03 four rirst question ia an inquiry 0r the
present llab5.l.lty .ot .,the Wlargata ,Haval Stoma. ror unatnplog-
ment taxesa
There being no prrsant regulation darlnlng ‘agrim
aultural labors*, we must determine the soopa of that term.
The Commlaslon plaoes no llraltatlon on the term. In answar-
Lng the queatlon of liability prior to January 1, 1940, we
reoognlzad the llmltatlon you plaosd on the term *agrloul-
tural laboP.by the Commlaslon~a regulations spaolfylng ser-
vloea on a farm.’ The word l agrloulture* has a broader mean-
ing than farming, In Ra Rodgers, 279 9. W. 800. Lowe Y. North
Dakota Workmanta Compensation Bureau, 261, W. W. 867. Vna
may be employed ln agriculture and yet not be a farmer ln the
ordinary sense of the term, nor even a farm laborer as the
term is used In .._our lien laws.”
Eciwk+a~~ ..lri
darining ~%gr~,atii&.~~~l
to that tam ;$hei Mead
Turner TarpaxitlnB ~aabe, ,supra,
ourlty Agency. This, latltade would support the ruling o?
the Commission of March 19, 1940, as refleotkd by thd photo-.
statlo aopy of latter of Orville S. Carpenter, Chairman and
Eraoutlva Dlraotor , to,, the Wleqgata, Naval Stmes. ,-We .,do.n@
say that suoh a rullng.would~ be, coljlpat~lbla with ~opf regula-
tlons arraotlva to~iianuarg ~1, X9&0. 3!&e on rapogt?d ~baol-:~
alon balng.in sup art or the broad&t &tort T0 .oone$!cuotlkm
or *agricultural f: aborn,. pou’ara justified in tbllting that
daoisltm when ,it doir ‘not oonillot with your own ragulatlons~
‘Iourp .varp truly
APPROVED
MAY 2, 194l ATTQRWEY
GZWEftAL
OF !iXXAS
/s/ GRom? -
FIRST ASSI-, BT /a/ Yorrgu~o$~
ATTOEtNEy (fBM$RAL
MBtHzddt