The Honorable H. Q. Sibley, D. V. M.              Opinion No.   H-   195
Executive Director
Texas Animal Health Commission                    Re:   The authority of the
1020 Sam Houston State Office Bldg.                     Texas Animal Health
Austin,  Texas  78701                                   Commission     to prohibit
                                                        the admission    of Mexican
                                                        cattle. into designated
                                                        Tick Eradication    Areas.

Dear Mr.   Sibley:

       You have asked whether the Texas Animal Health Commission       has the
authority under Vernon’s    Texas Penal Code, Article 1525c, or any other
statute to forbid the introduction of legally imported Mexican cattle into
designated tick eradication   areas of Texas.

       You have informed us that the Commission     has reason to believe that
Mexican cattle have developed an immunity to “Texas fever” or “splenetic
fever, ” the disease carried by the fever tick.   Even though these cattle
have been rid of any ticks and show no ill effects they may carry the latent
disease in their bloodstreams.    ff one later becomes a host to a fever tick,
the tick could transmit the disease from the immune Mexican cow to non-
immune Texas cattle.

       Works on veterinary      medicine inform us that historically~“Texas    fever”
has been one of the most destructive       diseases   among cattle.  At one time
practically  all cattle in the southern United States were affected by the disease.
Pioneering   research    led to the discovery   that the disease was caus.ed by the
development    and activity of minute protoplasmic      parasites,  Piroplasma
bigemina,   in the blood streams     of cattle.  For the first time it was discovered
that a disease was transmitted      from one animal to another by an intermediate
host or carrier,    in this case the Texas fever tick or cattle fever tick,




                                   p.   913
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The Honorable     H. Q. Sibley,   page 2       (H-195)




Margaropus    annul&us.   Since it appears the fever tick is the only means by
which the disease is naturally transmitted    from .snimal to animal,     eradication
of the fever carrying ticks will cause the disease to disappear,       In 1906 the
United States began a campaign to eliminate the fever tick, and now tbe
spread of the disease has been virtually eliminated in this nation.       Only a
few counties along the Rio Grande are under permanent quarantine because
of the presence of ticks.   See generally  U. S. Dept. of Agriculture,     Animal
Diseases,   pp. 310-313 (1956); Dykstra,  Animal Sanitation and Disease       Control,
pp. 747-749   (1961).

       The legislative   machinery by which Texas has combatted this disease
is Article 1525~. the Tick Eradication        Law.    It provides methods for eradi-
cating ticks and thus controlling      the disease.     The proposal about which you
inquire would provide another means of controlling            the fever.   Instead of
concentrating   all efforts on eliminating the carrier,        the Commission     is
considering   measures     to prevent the introduction af~.sources of the disease
in areas where the carrier       tick may exist.    You have informed us that testing
cattle to determine whether they carry the disease is prohibitively             expensive,
and your inquiry involves a proposal to prevent the introduction of all Mexican
cattle into a designated Tick Eradication        Area.    Although the Commission
has no present evidence that Mexican cattle have caused infection of Texas
cattle by their introduction into Tick Eradication         Areas in this state, you
inform us that it is likely that as many as one-half of Mexican cattle crossing
from Mexico into the United States could be carriers            of the disease.

        The Legislature   has enacted a series of statutes to combat this and
other diseases   of animals under the provision of the constitution       permitting
 the passage of laws for the regulation of livestock and the protection of
 stock raisers.    Texas Constitution,   Article 16, $ 23.    One of the laws
 enacted pursuant to the constitutional   provision is Article 1525c, Vernon’s
 Texas Penal Code, the Tick Eradication        Law, (to be republished as Article
 7014g-1, Vernon’s    Texas Civil Statutes).    Section 1 of that article provides
 in part:

                       “It shall be the duty of the [Texas Animal
                Health Commission].      . . to eradicate the fever-
                carrying tick (Margaropus     Annulatus) in the St&e




                                    p.   914
The Honorable     H. G. Sibley,     page   3     (H-195)




                of Texas and to protect all lands, territory,
                premises,    cattle, horses,    mules,  jacks and
                jennets in the State of Texas from said tick and
                exposure thereto,     under the provisions   of this
                Act.   Said Commission      shall adopt necessary    rules
                and regulations,    to be proclaimed   by the Governor
                of the State of Texas,    for carrying out the provisions
                of this Act. ”

Article 1525b of the Penal Code (to be republished   as Article 7014f-1, Vernon’s
Texas Civil Statutes) involves the control of disease among live stock, Section
1 of that article provides in part:

                       “It shall be the duty of the [Texas Animal
                Health Commission].          . . to protect all cattle,
                horses,    mules,    asses,    sheep, goats, hogs, and
                other live stock, and all domestic animals and
                domestic fowls of this State from infection,
                contagion or exposure to the infectious,            contagious
                and communicable        diseases    enumerated      in this
                Section . . . and other similar and dissimilar
                contagious and infectious diseases          of live stock
                recognized    by the veterinary      profession     as
                infectious or contagious.        . . .   Said Commission
                may at its discretion       whenever it is deemed~
                necessary    or advisable also to engage in the
                eradication   and control of any disease of any
                kind or character      that affects animals,       live
                stock, fowls or canines regardless           of whether
                said diseases     are infectious,     contagious or
                communicable       and may establish necessary
                quarantines for said purpose. . . . . Said Commis-
                sion shall adopt rules and regulations           to be
                proclaimed    by the Governor of the State of Texas
                for the purpose of carrying out and enforcing
                the provisions     of this Act. . . . No provision
                of this Act shall relate to tick eradication;           ”
                (emphasis    added).




                                      p.   915
 The Honorable     H. Q..   Sibley,   page 4    (H-195)




         The proposal you suggest is designed to p.revent the introduction and
  spread of “Texas fever” in this state.     Technically   it is not a tick eradication
  measure.     Instead, it is designed to prevent disease.      We find it unnecessary,
  therefore,   to determine whether Article 1525c, the Tick Eradication        Law,
  provides the authority for the adoption of the measures       you suggest,   since
‘the proposals    may be authorized underArticle~l525b’s      grant of authority to
  the Commission     to eradicate and control “any disease of any kind or character
  that affects animals”.

       The Commission’s        proposed action is clearly within the police power
of the state. Rasmussen        v. Idaho, 181 U. S. 198 (1901); Smith v. St. Louis
& Southwestern Railway        Co. , 181 U. S. 248 (1901); Armstrong  v.’ Whitten,
41 F; 2d 241 (S. D. Tex.      1930).

       It is axiomatic that a state regulation cannot stand if it conflicts with
a federal statute or regulation.        Article 6, clauae.2,   of the United States
Constitution,     the Supremacy     Clause.    Also, the state may not regulate
commerce      inan area in which the federal government has pre~empted the
regulatory    field.    Article 1, $ 8, clause 3 of the United States Constitution,
the Commerce         Clause.   In Rice v, Santa Fe Elevator Corp. ,, 331 U.S. 218,
230 (1947), the Court said:

                 “The question in each case        is what the purpose
                 of Congress was.

                 ‘1. . . Such a purpose may be evidenced in several
                 ways.    The scheme of federal regulation may be so
                 pervasive   as to make reasonable     the inference that
                 Congress   left no room for the States to supplement
                 it. . . . Or the Act of Congress      may touch a field
                 in which the federal interest is so dominant that the
                 federal system will be assumed to preclude enforce-
                 ment of state laws on the same subject.       . . . Like-
                 wise, the object sought to be obtained by the federal
                 law and the character   of obligations   imposed by it
                 may reveal the same purpose.       . . . Or the state
                 policy may produce a result inconsistent       with the
                 objective of the federal statitte. I’




                                       pe 916
The Honorable     H. Q..   Sibley;   page 5.~~(H-195)    :




       After carefully  examining the federal regulatory     scheme it is our
conclusion that Congress    did not intend to preempt the field.     See, Savage
v. Jones,   225 U.S. ~501 (1912); Reid ‘v. Colorado,   187 U.S. 137 (1902);
Missouri,   Kansas & Texas Railway Co. . v. Haber- :169 U. S. 613 (1898).
Indeed, the Congress    and the Secretary   of Agriculture   specifically contem-
plate concurrent   state regulation.  21 U.S. C. $114, 9 C. F.. R. $ 72-10.

        21 U. S. C. § 104, authorizes the Secretary   of Agriculture   to permit
the entry of certain Mexican’cattle    into the State of Texas.     As it is our
understanding     that the proposed regulation would merely prevent their
entry’into designated Tick Eradication      areas,  we do not believe it would
conflict with any’ specific ~federal statute or the general federal regulatory
scheme.

       A state’s absolute quarantine against cattle from another state may
be permissible    under the-commerce     clause. Smith v. St. ~Louis & Southwest
Railway Co.,    supra.   The test to be used in determining     whether a state
reeulation unduly affects interstate    commerce   is essentially   a balancing
test.   It was recently articulated  in Pike v. Bruce Church, *Inc. , 397 Ul S.
137, 142 (1970) where the United States Supreme Court said:

                “Where the statute regulates      even-handedly    to
                effectuate a legitimate   local public interest,    and
                its effects on interstate   commerce     are only incidental,
                it will be upheld unless the burden imposed on such
                commerce     is clearly excessive    in relation to the
                putative local benefits.   . . . If a legitimate   local
                purpose is found, then the question becomes one
                of degree.    And the extent of the burden that will
                be tolerated will of course depend on the nature of
                the local interest involved,    and eon whether it could
                be promoted as well with a lesser impact on interstate
                activities. ”

       The validity of the proposed regulation would depend on its scope and
its effectiveness  in promoting the health of cattle in this state. The only
regulation that. has been suggested to us is in a very general outline form,
and without more specific information    as to its scope, we are not able to




                                      p.   917
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The Honorable   H. Q.. Sibley.   page 6      tH-195)




render any jud.gment     on its legal validity in respect to the commerce
clause.   The soundness of the veterinary      theory on which it is based would
be a relevant consideration     in determining   the regulation’s validity, but
we are not equipped to make such factual determinations.          We can say,
however,   that regulations   of the type you. have outlined would not necessarily
be precluded by the federal government’s        power over interstate and foreign
commerce.

                                       SUMMARY

               The Texas Animal Health Commission      has the authority
      to prohibit the admission  of Mexican cattle into designated Tick
      Eradication  Areas in sn attempt to prevent the introduction and
      spread of splenetic or Texas fever.    Such a regulation would not
      necessarily  be precluded by the federal government’s    power over
      commerce.




                                                       Attorney   General   of Texas
                                             //

A




DAVID M. KENDALL,         Chairman
Opinion Committee




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