Untitled Texas Attorney General Opinion

THEAITORNEXGENERAL OPT-EXAS ALXWI-EG- September 4, 1948 Hon. D. A. Davidson, Dlrec tor Live Stock Sanitary Commission Fort Worth, Texas Opinion No. V-676. Re: The validity of Article 1525b, Section 6, Vernon’s Penal Code, authorlz lng the issuance of search var- rants to peace officers ac- companying veterinarians employed by the Live Stock Sanitary Commission in ad- ministering the provisions of the statute D sear Sir: You have inquired as to the validity of Arti- cle 1525b, Section 6, Vernon’s Penal Code, which pro- vides authority for obtaining a search warrant by a peace officer when he shall accompany a veterinarian employed by the LLve Stock Sanitary Commission in the performance of’ sny duty authorized under said statute. That statute provides that in the event a search war- rant is obtained under that section, such search war- rant shall authorize entry and reentry for a period of thirty days after ‘its issuance. We set out Section 6 of Article 1525b, V.P.C., as follows: “The Chief Veterinarian of the Live Stock Sanitary Commission and all other veterinarians employed by said Commission, including members of said Commission, are hereby authorized to enter any public or prlvate property for t’ne exercise of any authority or performance of any duty au- thorized under this Act. If said per- :~n desire3 33 be accompanied by s peace zfflcer the 3a:d person may sopiy t3 any Hon. D. A. bvidson, Page 2, V-676. meglstrate in the County vhereln said property Is located for the laauance OS a search varrant, and it shall be the duty of the said magistrate to issue the same, but no search warrant shall Issue vithout describing as near as may be the premise or other place to be en- tered; nor without probable cause, sup- ported by oath or affirmation. It shall not be necessary to describe said prem- ises or place by field notes or metes and bounds, or other measures, but it will be sufficient if the search war- rant contains such reasonable descrlp- tion as vi11 enable the owner or care- taker of said property to know just vhat property is referred to therein. When said search warrant 1s issued it will authorize the person to vhom it is issued to be accompanied by peace officers, and said search werrant ~111 authorize the person to whom it is is- sued to be also accompanied by as many helpers and assistants as he may deem necessary for the performance of said duty or the exercise of said authority. Any person, firm, or corporation who shall refuse to permit any person to whom sald search warrant is Issued to make said entry or to perform any duty or exercise any authority designated In said search warrant under authority of this Act, or who shall refuse to permit any peace gfflcer or any helper or any assistant to said person to vhom said search warrant is issued to make said entry or to exercise any authority or perform any duty designated in said search warrant under authority of this Act shall be fined not less than Twenty- five nor more than One Hundred Dollars. Each separate day upon vhich said refus- al Is made during the thirty days next succeeding the date of the issuance of said search warrant shall constitute a separate offense. Said search varrant shall permit the entry and re-entry and the performance of said duties and exer- cise of said authority continuously for Hon. D. A. Davidson, Page 3, V-676, a ~rlocl of thirty days lftmr Its is- suence, and additional search Varrants may be issued thereafter under the pro- visions of this Act as often as may be ~otl~el~e~~~~ K%%Et ar lans, inspectors or members of said Commission to secure said search war- rants, unless they are to be accompanied by peace officers, but they are hereby authorized to make entries upon private and public lands for the performance of any duties autborlted under this Act. Search warrants may also be issued to Inspectors of the Live Stock Sanitary Commission engaged in the eradication of scabies among sheep, goats, and cat- tle, vhenever said Inspectors are to be accompanied by peace officers in the per- formance of any duties in connection with said work.” (Em has18 supplied through- out this opinion P The right of the people of Texas to be se- cure In their persons, houses, papers and possessions against unreasonable searches and seizures is guar- anteed to them by the Fourth Amendment to the Constl- tution of the United States and by Article 1, 3 g,of the Constitution of Texas. We set out Article 1, B 9, of the Constftu- tlon of Texas, as follows: “The people shall be secure in their persons, houses, papers and pos- sessions, from all unreasonable seiz- ures and searches; and no warrant to search any place, or to seize any per- son or thing shall issue without des- cribing them as near as may be,nor without probable cau:e, supported, by oath or affirmation. The protection afforded by the Fourth Amend- ment of the Constitution of the United States is ap- plicable only to searches and seizures made by the United States Government or Its officers or agencies. Hammond Packing Co, v, State, 212 U, S. 522, 29 S. Ct. 370, 53 L. Ed. 530; Weeks v, U. S., 232 U. S, 383, 34 S. Ct. >41, 58 L, Ed.. 652; National Safe Deposit a Hon. D. A. Dnvldson, Page 4, V-676. v. Stead,232 U. 3, 58, 34 3. Ct. 209, 58 L.. fd. 504. Therefore, we are confronted with resolving _ the issue of rhether the search warrant In question, vhlch authorizes entry and reentry for thlrtr days after Its issuance contemplates an unreasonable search and seizure within the inhibition of the COnBtitUtiOn of Texas, Art. 1, 8 9. It was the fear of unbridled and arbitrary searches and seizures, as perpetrated by colonial rev- enue officers armed vlth Writs of Assistance, that prompted the authors of our Federal and State Constl- tutlons to draft a positive assurance that the abuse occasioned by the Issuance of general search warrants, vhlch flourished during the period of colonial devel- opment, should never recur. Inherent In our jurisprudence 1s the prln- clple enunciated so clearly by Lord Chatham and quot- ed In Rx Parte Gould,.60 Tex. Cr. R. 442, 132 9. W. 364, as follovs: “The poorest man may, in his cot- tage, bid defiance to all the forces of the crown. It may be frail; Its roof may shake; the wind may blov through It; the storm map enter; the rain may enter; but the king of England may not enter; all his forces -dare not cross the thresh- old of the ruined tenement.’ We must, therefore, carefully examine Sec- tion 6 of Article 1525b,V.POC., wherein it provides for obtaining a search varrant, to detennlne whether It is reasonable or unreasonable In the light of the authorities and the statutory and constitutional pre- cepts. It must be observed initially that Article 1525b, Section 6, V.P.C., Is a particular authority for a search warrant to be used In connection with the administration. of the duties of the Live Stock Sanitary Commlssion. Were it not for the passage of such section, a search warrant vould have to be ob- tained under the authority of Title 6 of the Code of Criminal Procedure, vhlch applies to search varrants generally and vould be governed by the provisions of Article 517, V.C.C.P., which follovs: Bon, D. A, Davidson, Page 5, V-676. "Any peace officer to wha a search warrant is delivered shall execute it vlth- out delay, and forthwith return it to the proper magistrate. It must be executed vlthln three days frcm the time of Its ls- suance, and shall be executed within a shorter period if so directed in the var- rant by the magistrate.” There is much authority to the effect that under a search warrant obtained under a statute which authorizes but one execution, and therefore one entry, reentry of the premises at a later date and relnstltu- tlon of a search under authority of the original search warrant Is illegal, and renders the evidence obtained thereby lnadmlsslble. ~Davls v. State, 113 Tex. Cr. R. 421, 21 S. W. (2d 509; Rlppy v. State, 122 Tex:Cr. 1 2d) 619; Coburn v. State, 78 Okla. ~~.1E>Z,si4jj.p. (2d) 483; State v. Moran 103 W. 138 9. E. 366; "Search and Selzureh by Corn- ellus,'&d Rd., Section 224, page 530. We are, however, confronted in this Instance with a statute authorizing entry and reentry for a per- icd of thirty days under a search varrant, which is to be used only in connection with the administration and enforcement of duties Imposed In the Act designed to provide safeguards and controls over diseased live stock and domestic fovls. It becomes pertinent to examine that statute to observe what are the duties and the au- thority with which the peace officer will be associated, as this will cast light on the “reasonableness” of the search under such search warrant. Section 1 of Article 1525b, V.P.C., Indicates that the Live Stock Sanitary Commission shall “protect all cattle, horses, mules, asses, sheep, goats, hogs, and other live stocks and all domestic animals and domes- tic fovls of this State from infection, contagion or ex- psure to the infectious, contagious and communicable dl- seases enumerated In this Section, to-vlt: Tuberculosis, anthrax, .glanders, Infectious abortion, hemorrhagic septi- cemia, hog cholera, malta fever, foot and mouth disease, rabies and other similar and dissimilar contagious and infectious diseases of live stock recognized by veteri- nary profession as infectious or contagious; also rabies among canines) and Sacillary White Dlarrhea among fowls , > * It shall be the duty of the Commission. D ~ to Pen. D. A. Davidson, Page 6, V-676. establlrh auarantiner vithln the Stat4 OS Tex8s on cattle, hor8e8, mules, asses; sheep, goats, hog8 and other live Stock, domestic animals and domestic fovls, also counties, districts, areaa, premlaes, lands,pas- ture9, lot9, ranches, fang, flelde, ranges, thorough- fares, buildings, barna, stables, stock yards, pens and other placeswhenever said Commission ascertains that any of said dlsetIses or the agency of transmis- sion thereof exist in any of sold places or among any of said live stock, domestic animals or domestic fowls, or that any of aald places, live 9tock, domestic anl- mals, or domestic fowls are exposed to any of said diseases or to the germs fir agency of transmlsalon of any of said diseases. . . Section 2 of the statute provides, In part: "Whenever it is determined by Veter- inarians in the employ of the Live Stock Sanitary Commlsslon that any contagious, lnfectlou9, or communicable disease exists among any live stock or domestic animals or domestic fovls, In the State of Texas, or on any land or premises or other places, or that any live stock, domestic animals or domestic fowls, premises or other places have been exposed or are exposed to the agency of transmission of any infectious, contagious or communicable disease, such exposure or infection shall be considered as contlnuln until the Live Stock Sanitary Commds eradicated the same through its prescribed methods under authority of lav and of the rules and regulations zf the Live Stock Sanitary Commission. . . O Section 3 of the statute provides for the ea- tabllshment of quarantines to prevent the spread of anl- ma1 diseases, and Section 4 provides, in part, that any person who shall "ship, drive, drift, le$d, haul,truck, carry or In any manner move or transport any animals from any "county, district, area, premises, pasture,lot, pen, yard, stock yard, field, barn, stable, building, enclosure, or other place which Is under quarantine shall be guilty of a misdemeanor. Section 5 provides for the further establlsh- ment of quarantines prohibiting the movement of animals which are disease carriers, and provides that anyone Hon. D. A. Davidson, Page I, V-676. violating 8uch section shall be guilty of a misdemeanor. Section 9 provides for the obtainment of a health certificate from a veterinarian recognized by the Live Stock Sanitary Commlsslon for any of the anl- mals covered by the statute which are moved into Texas, and provides that anyone violating such section shall be guilty of a misdemeanor. Section 11 provides that cattle moved into Texas, except range or stocker cattle, or cattle shlp- ped for Immediate slaughter, shall be accompanied by a tuberculin test chart, and provides that anyone vlo- latlng such section shall be guilty of a misdemeanor. Section 12 ‘provides for the vaccination and dipping of hous In accordance ulth spec and provides that anyone violating such section shall . be guilty of a misdemeanor. Sections 13 and 14 of cattle for tuberculosis, tle found to have a positive tine of such cattle found to have tuberculosis, Section 14 specifically provides, in part: n 0 1 0 Any person, firm or corporation who shall sell, trade, barter, give away, or loan, or drive, drift, ship, haul, lead, truck, or in any manner move, before the Live Stock Sanitary Commfssfon has estab- lished a quarantine on said positive react- ors # any of said positive reactors from the enclosure wherein they were located at the time they were so tested, or that shall so move any of said reactors from the place or enclosure where they are under quarantine by said Commission or that shall so move any cattle located In said quarantined place or enclosure during the existence of said quar- antine without first securln$ a written per- mit from the said Commission shall be guilty of a misdemeanor. Set tion 16 provides for the regulation of live stock exhibitions, shows and fairs, and provides that any- one violating such section shali be guilty of a misdemeanor, Hon. D. A. Davidson, Page 8, V-676. Section 21 provide9 for tlm canulrory burlal- dr b&nlng of the carcasses of anlm taglous or infectious diseasea, and provides that any- one violating such section shall be guilty of a mlsde- meanor. We set out various provisions of the Act to show the multitude of duties imposed on the Live Stock Sanitary Commission and its employees, and the numerous offenses that may be committed under the statute. It 19 a comprehensive act covering much of the field of live stock and domestic fovl regulation and con- trol. One need. be but ~sllghtly familiar vlth the many animal diseases, the control of vhlch is covered by the Act, to realize that such control requires continuing and constant aupervi#lon and observation, and that vlth- out such supervision and 4bseWatlon the enforcement of the statute would be hindered. The live stock which have been exposed to disease may take days before they show symptoms of the disease that may be diagnosed. It is provided In the Constitution of Texae, Art. 16, 3 25, that: “The Legislature may pass laws for the regulation of live stock. . . .n The function, then, of the peace officer who will accompany the veterinarian in conducting the search under the search warrant authorized by Section 6 of Art- icle 1525b, V.P.C., is that of enforcement, as in his capacity as a peace officer he Is clothed with author- i ty to make arrests . Enforcement of the statute 1s an essential to its effective administration. The “reason- ableness” of a search and seizure, under such a search varrant which authorizes entry and reentry for thirty days after Its issuance, must be determined ln the light of vhat 1s to be accomplished by such authorized actl- vlty. In view of the fact that the search warrant authorized by Section 6 of Article 1525b, V.P.C., Is so clearly allied with the full and adequate adminls- tration of the act, we think a search properly lnsti- tuted and performed under the authority of a search warrant complying with the provisions of that stat- ute would not be unreasonable and vould not be vlola- tlve of the provlsion;h;; Arti,cle 1, g 9, of the Con- stitution of Texas. , of course, assumes that Hon. D. A. Davidson, Ppge 9, V-676. such search varrant is in full ccmpllancs vlth the con- stitutional provisions requiring “probable cause’, the dsscrlptlon of the premises to be searched and the sup- porting oath or affirmation, each of vhlch 1s essential to the validity of the search varrant, and each of which must be governed by the facts peculiar to the situation in question. We think it not inappropriate to note the case of Armstrong v. Whltten, 41 F. (26) 241, decided by the Federal District Court for the Southern District of Texas. Judge Hutcheson, in this case, was passing on the~valld- ltg of Article 1525c, V.P.C., as a police measure, vhlch statute provided for fever tick eradication, under the regulation of the Live Stock Sanitary Commission, and the administration of vhlch was closely associated vith Article 1525b, V.P.C. Incidentally, Section 24 of Artl- cle 1525c, V.P.C ., provides for obtaining a search war- rant similar to that under Article 1525b, V.P.C ., but in the tick-eradication statute the search warrant is effective for sixty days. In that case, vhich sustained the validity of Article 1525c, V.P.C., the Court observ- ed: 9,. . . It seems to me now, however, that the paramount. consideration in this case is that the Legislature has undertaken, by a com- prehensive scheme, to eradicate the fever tick, and that all the provisions of the act are de- signed for, and should be considered in the. light of, that purpose; . . . ” . D m The Legislature, having full pover to do so, has undertaken by a comprehensive scheme, a valid and constitutional purpose, to- vit: to eradicate the fever-carrying tick from the cattle of this State, and that all the pro- visions of the act are designed and measured to that end. “That the Legislature has the right to ln- stltute and carry out methods of tick eradlca- tlon under the general police powers of the state, and, that especially under the provls- ions of Article 16, Section 26, of the Consti- tution It has the right to require plaintiff and others similarly situated to take such mea9ure9, adopt such precautions, and put into Hon. D. A. Davidson, Pago 10, V-676. operation such actlrltles as vi11 at least constitute a good-faith endeavor to free the state of the menace and burden at. vhlch the lav is aimed, thst, this being so,plaln- tiff’s bill presents no squity for relief, and his prayer for injunction should be denied .’ The provisions of Article 1525b, Sec- tion 6, Vernon’s Penal Code, which author- izes the lsslaance of a search vqrrant per- mitting entry and reentry thereunder for a period of thirty days after issuance when a peace officer shall accompany a veterln- arlan employed by the Live Stock Sanitary Commlsslon in exercising the authority con- ferred by that statute, are valid, and a search properly instituted and conducted under authority of a search warrant vhich fully complies vlth such statute would not be unreasonable, as a matter of lav, with; in the lnhlbltlon of Article I, Section 9, of the Constltutim of Texas. The “reason- ableness” of such varrant depends upon the facts of each situation. Yours very truly ATTORNEYGENERALOF TEXAS APPROVED: ATTORNEYGJZRERAL . DJC: jmc:rt: jmc