THE ATTORNEY GENERAL
OF TEXAS
AU~TXN. TEXAS 78711
June 13, 1975
The Honorable Jack K, Williams Opinion No. H- 627
President
Texas A & M University Re: Validity of regulations
College Station, Texas 77043 issued by the State Entomologist
to eradicate contagious diseases
of honeybees.
Dear President Williams:
You have requested our opinion concerning the validity of regulations
issued by the State Entomologist to eradicate contagious diseases of honey
bees. You ask about regulations E and H of the Provisions of the Protective
Quarantine and Revised Regulations effective March 1, 1975. The two regula-
tions involved prohibit the movement of honey bees into Texas between March 1
and September 15 and prohibit the establishment of new beeyards within two
miles of a registered beeyard.
It is our understanding that these regulations are principally directed
at the eradication of American Foulbrood, a honey bee disease believed to be
on the rise in Texas, Foulbrood has long been the subject of regulatory
efforts. See Wyant v. Figy, 66 N. W. 2d 240 (Mich. 1954); Graham v. King-
well, 24 P.2d 488 (Calif. 1933). For the period of the protective quarantine,
the State Entomologist plans to concentrate the efforts of his department on
the eradication of Foulbrood in existing beeyards within the State. Since most
of the 50 to 60 thousand colonies which enter the State each year do so in the
early fall, it:is our understanding that upon the September 15 expiration of the
quarantine the State Entomologist plans to direct the efforts of his department
toward inspection of imported bees.
The two mile spacing rule is likewise directed at the control of
disease. We understand that honey bees have a proclivity for “robbing” honey
from neighboring beehives when the supply of natural honey ingredients
diminishes. While the flight range of honey bees is greater than two miles, it
is believed that this spacing rule will contribute to the control of the spread of
the disease.
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The Honorable Jack K. Williams - Page 2 (H-627)
The authority of the State Entomologist is provided in Title 17 of
the Civil Statutes. Article 550, V. T. C. S., provides:
The State Entomologist shall have power to deal with
all contagious or infectious diseases of honey bees, which
in his, opinion, may be prevented, controlled or eradicated,
and to do and perform such acts as, in his judgment, may
be necessary to control, eradicate or prevent the intro-.
duction, spread or dissemination of any and all contagious
diseases of honey bees as far as may be possible, and to,
make such rules and regulations, not inconsistent with
law, as may be necessary to enforce this law. The:State
Entomologist shall have authority to prohibit the shipment
or bringing into this State of any honey bees, honey, honey-
comb, or articles or things capable of transmitting
contagious or infectious diseases of bees from any State,
territory or foreign country except under such rules and
regulations as may be adopted and promulgated by said
State. Entomologist.
Articles 555 and 564a, V. T. C. S., empower. the State Entomologist to
declare a protective quarantine in any defined area of the state, which
quarantine may prohibit the movement or shipment of bees and appliances
into the area.
It is well accepted that a state’s police power extends to the prevention
and control of disease in animals and other agricultural endeavors. Smith v.
St. Louis and Southwestern Ry. Co., 181.U. S. 248 (1901); Attorney General
Opinion H-195 (1974). The legislature may vest executive officers with
discretion in the exercise of this power, and regulatory agencies so author-
ized may adopt rules and designate areas for quarantine., See generally 16
C. J. S., Constitutional Law, $138, p. 588; Williams v. State, 176 S. W. 2d
177 (Tex. Crim. App. 1943).
Article 550, s, constitutes a delegation of authority to enact rules
and regulations for the control and prevention of disease and expressly author-
izes the State Entomologist to both prohibit “the shipment or bringing into this
State of any honey bees, ” and to “perform such acts as . . . may be necessary
to control . . . the . . . spread of disease.” In our opinion the quarantine
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The Honorable Jack K. Williamsr Page 3 (H-627)
involved in your request is clearly authorized by article 550, 555 and
564a. Since the spacing rule is not specifically authorieed by statute, in
our view it is valid only if it is within the power granted by article 550,
that is, it must be “necessary to control . . . the . . . spread of disease. It
Whether the rule is necessary is a question of fact which cannot be
resolved in an opinion of this office. The State Entomologist has developed
a plan for the control of Foulbrood, and we cannot rule as a matter of law that
the regulations constitute an unreasonable plan to fulfill his statutory responsi-
bilities. See Candy v. State, 220 S. W. 339 (Tex. Grim. App. 1920); Mulkey
v. State, 201 S. W. 991 (Tex. Grim. App. 1918); Smith v. State, 168 S. W. 522
-rim. App. 1914); Nunley v. Texas Animal Health Commission, 471
S. W, 2d 144 (Tex. Civ. App. -- San Antonio 1971, writ ref’d n. r. e.); Serres
v. ‘Hammond, 214 S. W. 596 (Tex. Civ. App. -- Beaumont 1919, no wrr
While these regulations apparently are valid under Texas law, the
prohibition of movement of honey bees into Texas must be examined in light
of its effect on interstate commerce. The United States Supreme Court has
addressed similar nrohibitions concerning the movement of livestock in
Railroad Co. v. Husen, 95 U.S. 465 (1877) and Smith v. St. Louis and South-
western Ry. Co. , 181 U. S. 248 (1901). Husen involved a ban on the importation
of Texas, Mexican, or Indian cattle for eight months of the year. The Court
held the prohibition unconstitutional as a direct burden on interstate commerce.
This case is distinguishable from the regulation involved, here, for the pro-
hibition “[was] not a quarantine law. ” (95 U. S. at 473). However, .further
evolution of the police power in this context has rendered the validity of
Huren questionable. 4 Am. Jur. 2d Animals, 5 33, n. 2, p. 285.
We believe Smith v. St. Louis, supra, to establish the controlling
law in this field. That case involved a regulation of the Texas Live Stock
Sanitary Commission which prohibited the importation of Louisiana cattle
for five months of a year. In sustaining the regulation, the Courts stated
that the principle of Husen:
. . . does not depend upon the number of States which
are embraced in the exclusion. It depends upon whether
the police power of the State has been exerted beyond its
province - exerted to regulate interstate commerce. . .
to an extent beyond what is necessary for any proper
quarantine. 181 U.S. at 255 (Emphasis in original).
p. 2778
<
The Honorable Jack K. Williams - Page 4 (H-627)
It further recognized that:
Quarantine regulations. . . must vary with the nature
of the disease to be defended against. 181 U.S. at 257.
: ,,
f
The Court also noted that the true purpose of the regulation is relevant as’
to whether it constitutes a proper quarantine and that regulatory acts are
presumed valid. -Id. at 257, 258.
,>In o.ur view the limited duration of the honey, bee quarantine, the timing
of the quarantine so that it will interfere asp little as possible with the princi-
pal.period of i,nterstate honey bee shipment, and its clearly valid purpose are
factors which suppol’t its validity as a “proper quarantine. ” Of course;
whether the regulations are reasonable, is a question of fact, but it is our
opinion that the protective quarantine cannot be said as matter of law to violate
the United States Constitution as a burden on interstate commerce.
SUMMARY
The regulation of the State Entomologist which
establishes a protective quarantine on the State
from March 1 ,to September 15 is not invalid as a
matter of law. The regulation which establishes
a two mile spacing rule for beeyard,s is valid if it
is necessary to control the spread of disease.
Very truly yours,
Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
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