United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 19, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-11499
EMPACADORA DE CARNES DE FRESNILLO, S.A. DE C.V.;
BELTEX CORPORATION; DALLAS CROWN, INC.,
Plaintiffs-Appellees,
v.
TIM CURRY, District Attorney Tarrant County
Texas, Et Al.,
Defendants,
TIM CURRY, District Attorney Tarrant County Texas,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
BENAVIDES, Circuit Judge:
The lone cowboy riding his horse on a Texas trail is a
cinematic icon. Not once in memory did the cowboy eat his horse,1
but film is an imperfect mirror for reality.
Texas is home to two of the three slaughterhouses in the
1
Though thieves would occasionally eat the cowboy’s horse.
See, e.g., Seven Men From Now (Batjac Productions 1956).
United States that process horsemeat for human consumption, with
the third operating in Illinois. After several decades of
operations, the Texas Attorney General informed them that Texas is
one of a handful of states that prohibits their activities.
Whether he informed them correctly is the subject of this case.
We VACATE the district court’s permanent injunction barring
the prosecution of slaughterhouses for processing, selling and
transporting horsemeat for human consumption. We hold that Texas
Agriculture Code Chapter 149 has not been repealed or preempted by
federal law. TEX. AGRIC. CODE ANN. §§ 149.001-.007 (Vernon 2004)
(“Chapter 149"). We also find that, as applicable to the parties’
activities before us, Chapter 149 does not violate the dormant
Commerce Clause.
I. FACTS AND STANDARD OF REVIEW
The Appellees are three slaughterhouses (“the
slaughterhouses”) that process and sell horsemeat. While the horse
byproducts go to various uses—including animal feed, fertilizer and
baseball leathers—a substantial majority of the horsemeat is sold
and shipped abroad for human consumption. None of the meat is sold
domestically for human consumption.
Both Beltex and Dallas Crown operate slaughterhouses in Texas.
Beltex owns a controlling interest in the third Appellee
slaughterhouse, Empacadora de Carnes de Fresnillo (“Empacadora”).
Empacadora operates in Mexico, but sells and transfers its meat to
Beltex in Texas, which then sells it abroad. While Empacadora
2
currently operates in Mexico, it has speculated that it will one
day come into Texas to handle distribution, sales, and export
matters instead of dealing its product through Beltex. The
companies have been marketing horsemeat for human consumption as
far back as the mid-1970s, but recently the legality of the
practice was called into question.
In 2002, Texas State Representative Tony Goolsby requested
that the Texas Attorney General clarify the enforceability of
Chapter 149, which on its face prohibits the processing, sale or
transfer of horsemeat for human consumption. The Attorney General
issued an opinion stating that Chapter 149 was applicable to the
slaughterhouses in Texas and was not preempted by federal law.
When the slaughterhouses learned of the opinion, and that
Beltex and Dallas Crown were facing imminent prosecution, they
brought this case. They sought a declaration of legal rights and
responsibilities and to enjoin any potential prosecution against
them under Chapter 149. They argue that Chapter 149 has been
repealed, is preempted by federal law, and violates the dormant
Commerce Clause.
The facts of the case are all stipulated, and both parties
filed motions for summary judgment. The district court ruled in
favor of the slaughterhouses and permanently enjoined Tarrant
County District Attorney Tim Curry (“Curry”) from prosecuting the
companies under Chapter 149. The court held that Chapter 149 (1)
was repealed, (2) was preempted by the Federal Meat Inspection Act,
3
and (3) violated the dormant Commerce Clause. We disagree as to
each point.
While we review a district court’s grant or denial of a
permanent injunction for an abuse of discretion, Peaches Entm’t
Corp. v. Entm’t Repertoire Assoc., 62 F.3d 690, 693 (5th Cir.
1995), we review all three issues of law supporting the district
court’s injunction de novo. Twin City Fire Ins. Co. v. City of
Madison, 309 F.3d 901, 904 (5th Cir. 2002).
II. DISCUSSION
Before we can consider potential constitutional infirmities in
Chapter 149, we must determine whether it is in force. If it has
been repealed then we need not address the constitutional concerns
the statute raises. See Elkins v. Moreno, 435 U.S. 647, 661-62
(1978). While it is generally preferable to avoid such
constitutional issues, courts “cannot press statutory construction
‘to the point of disingenuous evasion’ even to avoid a
constitutional question.” United States v. Locke, 471 U.S. 84, 96
(1985), quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379
(1933).
A. REPEAL
It is unchallenged that Chapter 149 prohibits the activities
of the slaughterhouses if it is in force. The statute reads:
A person commits an offense if:
4
(1) the person sells, offers for sale, or exhibits
for sale horsemeat as food for human consumption; or
(2) the person possesses horsemeat with the intent
to sell the horsemeat as food for human consumption.
TEX. AGRIC. CODE ANN. § 149.002. It is also an offense to transfer
horsemeat to a person one knows or should know intends to do those
prohibited activities. Id. at § 149.003. This statute was first
enacted in 1949, 1949 Tex. Gen. Laws 78. While this statute was
recently codified as Chapter 149 in 1991, the slaughterhouses
contend that it was repealed by a provision last codified two years
earlier in 1989.
We first find that the Texas Meat and Poultry Inspection Act
(“TMPIA”) has not implicitly repealed Chapter 149 by way of an
irreconcilable conflict. See TEX. HEALTH & SAFETY CODE ANN. § 433.033
(“Section 433.033"). Alternatively, even if the statutes are
irreconcilable, Chapter 149, as the one more recently codified, is
controlling.
1. Chapter 149 and Section 433 are not Irreconcilable
Section 433.033, titled “Equine Products,” states:
A person may not sell, transport, offer for sale or
transportation, or receive for transportation, in
intrastate commerce, a carcass, part of a carcass, meat,
or meat food product of a horse, mule or other equine
unless the article is plainly and conspicuously marked or
labeled or otherwise identified, as required by rule of
the commissioner, to show the kind of animal from which
the article was derived.
Id. (emphases added). The slaughterhouses argue that this
5
implicitly permits the sale of horsemeat for human consumption
under certain conditions, and thereby repeals Chapter 149.
Implicit repeals are not favored, but if two acts are in
irreconcilable conflict the latter controls. Jackson v. Stinnett,
102 F.3d 132, 136 (5th Cir. 1996). Statutes are in irreconcilable
conflict only if there is a “positive repugnancy” between the
statutes, such that one is eviscerated by the other. See Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 189-90 (1978).
The district court agreed with the slaughterhouses that
Section 433.033 recognizes the legality of selling horsemeat for
human consumption under certain conditions, and thereby repealed
Chapter 149's prohibition of the activity. It made a special note
that Section 433.033 applies to “meat food products,” which it
stressed are defined in the Act as “capable of use as human food.”
TEX. HEALTH & SAFETY CODE ANN. § 433.003(13). The district court read
this to mean that, because horsemeat is “capable for use as human
food,” it is implicitly legalized for such a purpose. See Order
Granting Plaintiffs Motion for Summary Judgment at 6 n.5 (Aug. 25,
2005) (“Summary Judgment Order”).
The district court misreads Section 433.033. The TMPIA is
concerned with meat inspection, labeling, packaging, slaughter,
transportation, and various other standards of producing meat. It
never purports to legalize for human consumption the meat products
covered therein. For instance, the Act places numerous regulations
6
on “livestock,” which covers a variety of meats ranging from
domestic rabbits to exotic animals. TEX. HEALTH & SAFETY CODE ANN. §
433.003. Under the slaughterhouses’ approach to reading the Act,
this would implicitly legalize the sale of all exotic animals and
domestic rabbits for human consumption, overriding any statute to
the contrary.
The better reading is that the TMPIA is indifferent as to
which meats are legal for public sale, but provides general
regulations that may be applied to those that are. Just as it did
not legalize the sale of all exotic animals for human consumption,
it does not legalize the sale of horsemeat by repealing Chapter
149's unanmbiguous language to the contrary. It does not reach the
high standard of irreconcilability required for an implicit repeal.
Furthermore, that a horse “meat food product” is “capable of
use as human food” does not mean the product can be legally sold
for human consumption. The Act explicitly defines “capable of use
as human food” as “not naturally inedible by humans.” Id. at §
433.003(2). It does not imply that all edible meats are legal for
sale as human food, as evidenced by other provisions in the Act
that specifically deal with “meat food products” that are “not
intended for use as human food.” See, e.g., id. at § 433.029(b).2
2
One could argue that, because the commissioner is only
allowed to inspect slaughterhouses where products are processed for
human consumption, see TEX. HEALTH & SAFETY CODE ANN. § 433.029, the
very inclusion of horsemeat in the TMPIA means that it is being
treated as legal for human consumption. There is some merit to
7
Human brains are “not naturally inedible by humans,” but that does
not mean the TMPIA authorizes roadside vendors to start selling
them.
Nobody suggests that horsemeat is naturally inedible by
humans, just that Chapter 149 makes it illegal to sell for human
consumption. Section 433.033 is reconcilable with Chapter 149 by
reading it as applying only to horsemeat used for other legal
purposes, such as animal feed.
Chapter 149 prohibits the sale of horsemeat for human
consumption. That does not conflict with the regulatory purposes
of Section 433.033 or its recognition that horsemeat is “not
naturally inedible by humans.”
2. Fleming Foods and Codification’s Effect
that point, but we are convinced otherwise for two reasons.
First, nothing in Section 433.033 suggests that horse
slaughterhouses are necessarily open to inspection, as it reads,
“The commissioner may require an establishment at which inspection
is maintained under this chapter to prepare [equine products] in an
establishment separate from one in which livestock other than
equines is slaughtered.” Id. at § 433.033. While this language
can be read to suggest that horse slaughterhouses are open to
inspection, it can just as easily be read to suggest that the
commissioner can require horsemeat be prepared in establishments
separate from those where inspection is required. Second, since
the language of the statute is ambiguous in this respect, we cannot
find an implicit repeal as that requires “irreconcilable conflict.”
Here, there may be a potential conflict, but it can be reconciled
through the plausible reading of the statute given here.
We are also mindful of the fundamental rule of statutory
interpretation that “specific provisions trump general provisions.”
Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003). A
general appeal to the purpose of the TMPIA cannot substitute for a
thorough reading of the statute’s terms.
8
Even if the statutes are irreconcilable, the latter one
controls. Stinnett, 102 F.3d at 136. Given Texas’s continuing
process of codifying its statutes, it is not easy to determine
whether Section 433 or Chapter 149 came later. Thankfully that
difficult question has already been answered by the Texas Supreme
Court in Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278
(1999). We are compelled by that case to find Chapter 149 is
controlling as the provision last codified.
By way of background, for the past several decades the Texas
Legislative Council has been charged with the task of codifying
Texas statutes. TEX. GOV’T CODE § 323. This continuing codification
process is meant to clarify and simplify statutes, thereby making
them more accessible to the public. Id. at § 323.007(a). The
council’s power is limited, as it “may not alter the sense,
meaning, or effect of the statute.” Id. at § 323.007(b).
Codifications are therefore often distinguished from “substantive”
enactments.
The statutes at issue here each originated decades ago and
each has a rather convoluted history, as the parties discuss at
length in their briefs. While Chapter 149 was the one last
codified, Section 433 derived from the latter substantive
enactment. If these statutes are irreconcilable, do we look toward
the most recent substantive enactment or the one last codified?
In Fleming Foods, the Texas Supreme Court faced a similar
9
question, asking, “What effect should be given to clear,
unambiguous statutes that were drafted by the Legislative Council
as part of the codification process but that depart from prior
law?” 6 S.W.3d at 283. The court emphasized a need for clarity in
finding that “the codifications enacted by the Legislature are the
law of this State,” and that when “specific provisions of a
‘nonsubstantive’ codification and the code as a whole are direct,
unambiguous, and cannot be reconciled with prior law, the
codification . . . must be given effect.” Id. at 286.
Fleming Foods indicates that codifications—even if labeled
“nonsubstantive”—are legislative enactments that must be given full
effect, and such codifications may repeal and prevail over prior
laws.3 The complicated and convoluted statutory history raised by
the parties here demonstrates how difficult it would be to
implement a contrary rule.
At oral argument the slaughterhouses suggested that a case
from the Texas Court of Criminal Appeals stands for the contrary
rule. Ex Parte Holmes, 754 S.W.2d 676 (1988). In that case, the
3
This case is distinguishable from Fleming Foods, since that
case dealt with a conflict between a statute and its own subsequent
codification. But the language and rationale of that case provide
strong support here, since clarity and ease of interpretation both
militate in favor of a simple rule that the statute last codified
controls. While the rule that the most recent substantive
enactment controls might seem equally easy to apply, it requires
much more historical research into a statute’s origins and
deciphering which provisions of a statute are substantive versus
mere nonsubstantive codifications. Fleming Foods guides us against
such a convoluted method of statutory interpretation.
10
earlier statute controlled over a subsequent nonsubstantive
codification. But the later-codified statute there had an explicit
provision indicating that it “does not affect the validity” of the
earlier statute in question. Id. at 685. The court stressed that
this was the “most important” basis for its decision, and that the
later codification must be read “in light of” that language. Id.
at 685-86. Chapter 149 contains no similar language indicating
that its provisions yield to Section 433, making Ex Parte Holmes
inapplicable.
Chapter 149 has not been repealed. We now turn our attention
to the constitutional concerns the slaughterhouses raise.
B. PREEMPTION
The first constitutional claim the slaughterhouses raise is
that Congress, through the Federal Meat Inspection Act (“FMIA”),
has preempted legislation that regulates the sale and transport of
horsemeat. If true, the state legislation would be void under the
Constitution’s Supremacy Clause. U.S. CONST. art. VI cl. 2. When
addressing preemption claims, “our sole task is to ascertain the
intent of Congress.” Cal. Fed. Sav. & Loan v. Guerra, 479 U.S.
272, 280 (1987). “Pre-emption is not to be lightly presumed.” Id.
at 281.
A piece of federal legislation can expressly preempt states
from legislating in a particular area. Even if a federal statute
does not expressly preempt a piece of legislation, it may do so
11
implicitly by directly conflicting with it or by occupying a field
so pervasively as to naturally exclude it. See Perry v. Mercedes
Benz of N. Am., Inc., 957 F.2d 1257, 1261 (5th Cir. 1992). We can
find no indication that Congress intended to prevent states from
regulating the types of meat that can be sold for human
consumption. We address express and implied preemption in turn.
1. Express Preemption
The FMIA contains an express preemption clause, stating that
requirements “with respect to premises, facilities and operations
of any establishment at which inspection is provided . . . which
are in addition to, or different than those made under this chapter
may not be imposed by any State.” 21 U.S.C. § 678. It further
prohibits states from imposing different “[m]arking, labeling,
packaging, or ingredient requirements.” Id.
This preemption clause expressly limits states in their
ability to govern meat inspection and labeling requirements. It in
no way limits states in their ability to regulate what types of
meat may be sold for human consumption in the first place.4
4
As in the TMPIA, the FMIA only states that horsemeat is
“capable of use as human food” which applies to any meat unless it
is “naturally inedible by humans,” denatured, or otherwise
identified to deter its use as human food. 21 U.S.C. § 601(j)-(k).
It in no way suggests that horsemeat must be legalized for human
consumption. This is a less important observation to this analysis
than it was to the repeal analysis above, since even if the FMIA
implicitly recognizes the legality of selling horsemeat for human
consumption, that does not necessarily preclude a state from
prohibiting it unless Congress additionally intended to preempt
such legislation.
12
We cannot read this as expressly preempting Texas’s
prohibition on horsemeat for human consumption. With little
explanation, the district court found, “Preventing slaughterhouses
. . . from selling or possessing horsemeat for human consumption .
. . is an attempt by Texas to regulate the premises, facilities and
operations of [the] slaughterhouses.” Summary Judgment Order at
18. But the FMIA’s preemption clause is more naturally read as
being concerned with the methods, standards of quality, and
packaging that slaughterhouses use, matters Chapter 149 is entirely
unconcerned with. Chapter 149 does not infringe upon the territory
preserved for the federal government by the FMIA’s preemption
clause.
The FMIA does not expressly dispose states of the ability to
define what meats may be available for slaughter and human
consumption. We therefore find that Chapter 149 has not been
expressly preempted.
2. Implied Preemption
Even if state legislation is not expressly preempted, it may
be implicitly preempted. Implicit preemption is usually divided
into two types: field preemption and conflict preemption. Under
neither theory did the FMIA preempt Chapter 149.
Congress did not intend to preempt the entire field of meat
commerce under the FMIA. Field preemption requires a clear
congressional intent. Guerra, 479 U.S. at 281. It occurs when a
13
federal statute’s scope “indicates that Congress intended federal
law to occupy a field exclusively.” Freightliner Corp. v. Myrick,
514 U.S. 280, 287 (1995).
The FMIA specifically indicates that it did not intend to
preempt the field of meat commerce entirely, stating that it “shall
not preclude any State . . . from making requirements or taking
other action, consistent with this chapter, with respect to any
other matters regulated under this chapter.” 21 U.S.C. § 678.
Furthermore, the FMIA contains a narrow inspection and labeling
preemption clause, and “Congress’ enactment of a provision defining
the pre-emptive reach of a statute implies that matters beyond that
reach are not pre-empted.” Cipollone v. Liggett Group, Inc., 505
U.S. 504, 517 (1992).
The Act’s title refers specifically to meat inspection, rather
than a more comprehensive scheme of meat regulation. The need for
uniform meat packaging, inspection and labeling regulations is
strong, lest meat providers be forced to master various separate
operating techniques to abide by conflicting state laws. There is
no similar need for uniformity with regard to what types of meat
states permit to be sold, especially when considering that
horsemeat is only produced for human consumption domestically in
Texas and Illinois, and several states have already banned its
14
commercial use for human consumption.5
Nor does the FMIA preempt Chapter 149 by conflict. Conflict
preemption requires that it would be “physically impossible” for a
private party to comply with both federal and state law, or that
the law “stand[] as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” See Planned
Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 336 (5th
Cir. 2005).
It is certainly not physically impossible to comply with the
FMIA and Chapter 149. Complying with Chapter 149 by not selling,
possessing, or transferring horsemeat for human consumption would
not breach any provision in the FMIA. And Chapter 149 does not
stand as an obstacle to realizing the FMIA objectives of “assuring
that meat and meat food products distributed to [consumers] are
wholesome, not adulterated, and properly marked, labeled and
packaged.” 21 U.S.C. § 602. Chapter 149 prohibits a certain type
5
See CAL. PENAL CODE § 598c (“Notwithstanding any other
provision of law, it is unlawful for any person to possess, to
import into or export from the state, or to sell, buy, give away,
hold, or accept any horse with the intent of killing, or having
another kill, that horse, if that person knows or should have known
that any part of that horse will be used for human consumption.”);
MISS. CODE ANN. § 75-33-3 (“The term ‘food unfit for human
consumption’ shall be construed to include meat and meat-food
products of horses and mules.”); 63 OKL. STAT. ANN. § 1-1136 (“It
shall be unlawful for any person to sell, offer or exhibit for sale
. . . any quantity of horsemeat for human consumption.”); see also
2005-2006 Legislative Review, 12 ANIMAL L. 277, 281 (2006) (counting
five states as having enacted such prohibitive legislation).
15
of meat from ever getting to consumers, but the slaughterhouses
advance no argument that it increases the risk of having
adulterated or mislabeled meat reach consumers.
Congress has not demonstrated any intent through the FMIA,
expressly or implicitly, to limit legislation like Chapter 149. We
agree with the Texas Attorney General and disagree with the
district court in finding that Chapter 149 is not preempted.
C. DORMANT COMMERCE CLAUSE
The final challenge the slaughterhouses raise is that Chapter
149 violates the dormant Commerce Clause. We note at the outset
that this case was brought by two slaughterhouses that operate
their horsemeat businesses within Texas, and a third that operates
in Mexico but transfers and sells horsemeat directly in Texas.
This case does not implicate the Foreign Commerce Clause6 as
statutes placing import and export restrictions do, see, e.g.,
South Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984), or
in the way restrictions on products “used constantly and
exclusively . . . in foreign commerce” would. Japan Line, Ltd. v.
Los Angeles County, 441 U.S. 434 (1979). The slaughterhouses here
face potential prosecution for sales and activity that take place
directly in Texas.
6
The Commerce Clause states, in part, that Congress has the
power “[t]o regulate Commerce with foreign Nations.” U.S. CONST.
art. I, § 8, cl. 3. While it is not a stand-alone clause, this
portion of the Commerce Clause is often referred to independently
as the Foreign Commerce Clause.
16
We do not address the potential application of Chapter 149 to
an entity that merely transports horsemeat through Texas but
engages in no other commercial activity within the State, as
Empacadora speculates it may do one day. That hypothetical
situation is not before us. While prosecuting such a company would
raise unique dormant Commerce Clause concerns—specifically with
regard to the Foreign Commerce Clause—none of the slaughterhouses
fit that description, nor does there appear to be any company that
merely transports horsemeat through Texas.7
The United States Constitution’s Commerce Clause provides that
Congress has the power to “regulate Commerce . . . among the
several States.” U.S. CONST. art. I, § 8, cl. 3. It is established
that this clause also contains a negative component, referred to as
the dormant Commerce Clause, that limits the extent to which States
can interfere with interstate commerce. This dormant Commerce
Clause keeps States from “plac[ing] burdens on the flow of commerce
across its borders that commerce wholly within those borders would
not bear.” Am. Trucking Ass’n, Inc. v. Michigan Pub. Serv. Comm’n,
545 U.S. 429, 433 (2005), citing Oklahoma Tax Comm’n v. Jefferson
Lines, Inc., 514 U.S. 175, 180 (1995).
Chapter 149 does not run afoul of the dormant Commerce Clause.
It treats both intrastate and interstate trade of horsemeat equally
7
The only American producer of horsemeat for human
consumption outside of Texas operates in Illinois. It is not a
party to this case and there is no record as to its exportation
routes.
17
by way of a blanket prohibition. In no way could the prohibition
be considered economic protectionism. The statute does not favor
in-state actors over out-of-state actors, as evidenced by the fact
that this suit was instituted by two Texas slaughterhouses.
Nonetheless, statutes that do not appear to protect in-state
economic interests may still violate the dormant Commerce Clause
where the incidental burdens on interstate commerce are “clearly
excessive in relation to the putative local benefits.” Pike v.
Bruce Church, Inc., 397 U.S. 137, 142 (1970). The district court
points to a number of burdens Chapter 149 places on interstate
commerce, but ignores the fact that the “incidental burdens to
which Pike refers are the burdens on interstate commerce that
exceed the burdens on intrastate commerce.” Nat’l Solid Waste
Mgmt. Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d
491, 502 (5th Cir. 2004) (quotation and citation omitted). Neither
the district court nor the slaughterhouses point to a single burden
that Chapter 149 places on interstate commerce that does not
equally befall intrastate commerce.
Even if we credit the district court’s list of incidental
burdens Chapter 149 imposes on interstate commerce, then the
tolerable burden will depend largely on whether the interests
involved “could be promoted as well with a lesser impact on
interstate activities.” Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 471 (1981), quoting Pike, 397 U.S. at 142. Curry argues
18
that the statute advances Texas’s interest in (1) preserving
horses, (2) preventing the consumption of horsemeat, and (3)
preventing horse theft. The district court responds in turn that
(1) horses can still be killed for nonhuman consumption, (2) can
still be consumed so long as the meat is not purchased, and (3)
horse theft is already being prevented by another statute. Summary
Judgment Order at 13-14. But the statute does not need to
perfectly fulfill the identified state interests, it just needs to
advance them better than the alternatives.
We are not convinced that removing the significant monetary
incentives in the global horsemeat market does not increase the
preservation of horses while decreasing the consumption and theft
of horses. The district court’s belief that Chapter 149 “does very
little, if anything, to preserve horses, prohibit human consumption
of horsemeat, or prevent horse theft,” id. at 13, is unfounded.
The alternative measures the district court suggests are not
as effective. The district court pointed to several other measures
that Texas already has in place, including “support[ing] equine
research at its agricultural universities,” “encourag[ing] the
humane treatment of horses,” “regulat[ing] and licens[ing]
veterinary care for equines,” and “legaliz[ing] parimutuel betting
on horse races.” Id. at 14-15. The district court concluded that
“[t]he fact that Texas does all these things and more provides
ample evidence that Texas is able to ‘preserve horses’ without
19
severely or significantly burdening interstate commerce.” Id. at
15.
The district court’s reasoning is backward. That Texas takes
numerous measures to preserve horses, beside the blanket
prohibition, does not lead to the conclusion that those other
measures are adequate. A more natural conclusion is that those
measures proved inadequate to preserve horses to the extent
desired, prompting Texas to enforce the more stringent rule found
in Chapter 149. Moving beyond the district court’s flawed
reasoning, it is a matter of commonsense that the alternatives
listed do not preserve horses as well as completely prohibiting the
sale and transfer of horsemeat for human consumption.
The district court erred in finding that Chapter 149 violates
the dormant Commerce Clause. It does not favor local industry,
place excessive burdens on out-of-state industry, and no
alternative measures could advance Texas’s interests as
effectively.
III. CONCLUSION
Chapter 149 is in force and survives the constitutional
challenges raised by the slaughterhouses. Absent these obstacles,
the slaughterhouses admit they are in violation of Chapter 149. We
therefore VACATE the district court’s permanent injunction and
REMAND with instructions to grant defendant Curry’s motion for
summary judgment, thereby dissolving the preliminary injunction
preventing Curry from prosecuting the slaughterhouses.
20
21