                   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).




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                                                                              <
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

jwb

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