The Attorney General of Texas
December 29, 1978
JOHN L. HILL
Attorney General
Honorable Reagan V. Brown Opinion No. H- 132 6
Commissioner of Agriculture
P. 0. Box 12847 Re: Whether Department of
Austin, Texas 787ll Agriculture can require business
selling nursery products and flo-
rist items to obtain nursery in-
spection certificate, and floral
inspection certificate.
Dear Mr. Brown:
You ask whether the Texas Department of Agriculture can legally require
a business selling both nursery products and florist items to obtain a nursery
inspection certificate and a floral inspection certificate. Article 126, V.T.C.S.,
requires a yearly inspection of places offering items of nursery products or
stock, florists or other places growing and selling items of plant life and cut
flowers. If the items and premises are free from infection and infestation, “the
Commissioner shall, upon receipt of the inspection fee provided herein, issue to
the owner . . . a certificate. . . .‘I V.T.C.S. art. 126. See also V.T.C.S. art. 119
(also stating inspection requirement). Article 133, V.T.C.S., provides inspection
fees of ten to twenty five dollars for inspection of premises handling nursery
products and five to fifteen dollars for inspection of premises offering florist
items.
We believe article 133, V.T.C.S., authorizes the commissioner to collect
both fees for the inspection of premises offering both nursery products and
florist items. Although article 126 classes nurseries and florists together and
refers to an inspection certificate for premises selling items of plant life and
cut flowers, it also makes receipt of the certificate contingent upon payment of
the statutorily required fee. Articles 126 and 133 are statutes in pari materia,
and can be construed in harmony by reading them to authorize issuance of a
separate certificate reflecting payment of the separate fees. See Calvert v.
Fort Worth National Bank, 356 S.W.2d 918 (Tex. 1962). Moreover, the
commissioner has authoritv under article 119, V.T.C.S.. to make rules and
regulations for the inspection of cut flowers and plants. in our opinion, his rule
making power includes the authority to require separate certificates reflecting
the payment of the separate fees authorized by statute.
p. 5189
Honorable Reagan V. Brown - Page 2 (H-1320)
You also note that article 135.1, V.T.C.S., defines “nursery stock” to include florist
items, while article, 135, V.T.C.S., excludes florist items from that definition and
separately defines “florist.” You ask which definition you should use in carrying out the
law. Articles 135 and 135.1 derive from a single provision first enacted in 1909. Acts 1909,
31st Leg., ch. 19, S 8. The predecessor of article 135.1, V.T.C.S., was transferred without
reenactment from the Penal Code to the civil statutes when the new Texas Penal Code
was enacted. Acts 1973, 63rd Leg., ch. 399, S 5(a). Article 135 was amended in 1959 to add
the definition of florist. Acts 1959. 56th Lee.. ch. 280, S 17, at 613. Article 135 represents
the latest expression of legislative intent &I its definitions wiRprevai1 to the extent it
conflicts with article 135.1. See Commercial Standard Fire & Marine Co. v. Commissioner
of Insurance, 429 S.W.2d 93Omx. Civ. App. - Austin 1968, no writ).
SUMMARY
The Texas Department of Agriculture can legally require a
business selling both nursery products and florist items to
obtain a nursery inspection certificate and a floral inspection
certificate. The definitions that appear in article 135,
V.T.C.S., prevail over those in article 135.1 to the extent of any
conflict.
Attorney General of Texas
APPROVED: v
DAVID M. KENDALL, First Assistant
Opinion Committee
P. 5190