             TWEATTOIRNN~GENERAL
                           OF-TEXAS




                            November    23,1955

Dr. M. T. Harrington                   Opinion No. S- 18 1
Chancellor
Texas A. & M. College System           Re:   Construction of H. B. 169,
College Station, Texas                       53rd Legislature, 1953,
                                             amending the “Feeding Stuff”
                                             law, codified as Title 60,
Dear Dr. Harrington:                         v. c. s.

           Your letter requesting our opinion reads as follows:

           ‘Certain sections of Title 60 of the Revised Civil
      Statutes and certain sections of the Penal Code under
      ‘Feeding Stuffs’ were amended by H. B. 169, Chapter
      333, page 826, Acts of the Fifty-third Legislature.

           “There is a question on the part of the Director
      of the Agricultural Experiment Station, who ls charged
      with the supervision of the enforcement of the Pure
      Feed Law, as to the interpretation to be placed on, and,
      the means of enforcing the law under Articles 3881b and
      3881d. Since the questions to be asked relate directly to
      these two Articles, the sequence in which they were
      adopted may shed some light on the legislative intent.

          “H. B. 169 as finally passed amended Articles 3872
      and 3875 and added four new Articles, namely 3881a,
      3881b. 3881c, and 3881d to Title 60 of the Revised Civil
      Statutes and amended Articles   1489, 1492, and 1493 of
      the Penal Code under the title ‘Feeding Stuffs.’

           ‘House Committee Amendment NO. 1 to H. B. 169~s
      introduced added three new sections, namely 3881a, which
      defines special-formula feed and custom milling or cus-
      tom mixing; 3881b, which made non-applicable certain
      Articles of Title 60 of the Revised Civil Statutes and cer-
      tain Articles of the Penal Code under ‘Feeding Stuffs’
      where the tax had been paid on all ingredients supplied
      by the mixer or mlller~ and 3881c, which provided for
      a reporting system for persons selling special-formula
      feed or custom-mixed feed.
Dr; M. T. Harrlngton, page 2    (Opinion No. S-181)



          *After H. B. 169 passed the House, the Senate Com-
     mittee offered two amendments to this bill. Senate
     Committee Amendment No. 1 was 3881d, which provided
     that “no portion or sectton of this act except those per-
     taining to taxes”’ should apply to those engaged in the
     milling or mixing of what is commonly known as custom
     mixing or special-formula    mlxlng. Senate Committee
     Amendment No. 2 to H. B. 169 amended 3881~ to exempt
     the seller from certain requirements when the consurner-
     buyer, by affidavit, states that he does not wish such pro-
     cess t0 continue.

           ‘I-I. B. 169, with these amendments, passed the Senate,
      and the House concurred in the Senate amendments.

          *Article 3881b provides “None of the provisions of
     the Revised Civil Statutes of Texas, 1925, Articles 3872,
     3874, 3875, or 3877, as amended, nor the Penal Code of
     the State of Texas, 1925, Articles 1489, 1492, or 1493,
     shall apply to sales of special-formula feed, or custom
     milling or mixing, or any combination of such speclal-
     formula feed and custom milling or mlxlng (1) when a tax
     has been paid on all ingredients supplied by the person
     mixing. milling, or processing such feed, and (2) when all
     other ingredients are supplied by the consumer-buyer for
     his own use and not for resale.’

          “If Article 38811, ls applicable the only means by which
     it can be determined that the tax referred to in this Article
     has been paid 1s by the application of Article 3881~. yet,
     the penalty provision of thls Article (1493Pc) is one of the
     provisions made non-operative by 3881b.

          “Article 3881d provides ‘It is specifically provided
     that no portion or Section of this Act, except those pertain-
     ing to taxes, shall apply to any milling or mixing process
     when all of the ingredients are delivered by the owner
     thereof or by his agent, or if the customer or his agent
     furnished a portion of the ingredients, and the miller, mlx-
     er, or processor adds other ingredients in amounts speclfled
     by such customer or his agent, or lf the customer spsclfies
     the amounts and percentages ln such mixture.’

           YIf Article 3881d is applicable, then the following Artl-
      cles of Title 60 are non-operative, 3872, 3881a, 3881b.
      3881~. and the following Acts of the Penal Code, 1489 and
Dr. M, T. Harrington, page 3     (Opinion No. S-181)



      1493. Even though Article 3875 and Article 1,492 PC
      were amended by H. B. 169, they remain in effect be-
      cause they pertain to taxes.

           “In attempting to enforce the law sfnce the adoption
      of H. B. 169, the Dtrector of the Experiment Station has
      come to the conclusion that a clarification is needed for
      an efficient and fair enforcement.  We, therefore, request
      your opinton as to the following:

           “1. Is th,e above interpretation of 3881b correct?
      Does the Direcztor have authority under 3880 to prescribe
      a means of reporting oth,er than by invoices in order to
      determine th,e compliance with the taxing provisions of
      3881b?

            “2. Is the above interpretation of Article   3881d
       correct?

           “3. Is there conflict between Articles    3881b and
      3881d of the Revised Civil Statutes?

           “4. If the answer to No. 3. is ‘yes’, does the Direc-
      tor of the Experiment Station have the authority, under
      Article 3880, to specify which of these articles shall be
      the controlling one in the enforcement of the law?

           “5. I,f he does not have the aut,hority, which of the
      two Articles will control?

           “6.  If neither controls,   in your opinion, then how is
      the conflict to be resolved?

           “7. If your enswe% to No. 3 1s ‘no’, then do Article
      3875, Revised Civil Ststutes, and Artick 1492 of the
      Penal Code apply to feeds sold an special-formula    feeds
      or euetom-mixed feeds as far as th.e collection of tax on
      feeding stuffs is cancerned?  *

            It is elementary that a rrmedtrl   statute should be construed SO
as to give effect to the Leglsl~atlva intent. This intent is to be arcsrtalned
from the entire act lncludlng statements made in the emergency clsu~e.
All parts of an act ah,ould be construed in par1 materla and all parts of an
act should be construed so as to give effect to all sections if possible.    It
is not to be presumed that the Legislature intended parts of the same act
to be in conflict.
Dr. M. T. Harrlngton, page 4    (Opinion No. S-181)



           The Legislature in the emergency     clause clearly stated time
purpose of the act ln the following language:

            ‘The fact that the change ln method of paying the
      inspection tax authorized in Sections 1 and 2 of this Act
      would simplify and facilitate the admlnlstratlon of the
      Feeding Stuffs Law, and the fact that the law should be
      clarified with respect to the status of custom mixing
      and custom grinding of feed stuffs so as to exempt .custom
      mixing and grinding from the provfsions of this Act, be-
      cause the custom mixing and custom grinding of feed stuffs
      for dairy men, livestock owners and other consumers of
      feed stuffs, according to the specific dlrectfons and wishes
      of the consumers, for the use of such consumers and not
      for the purpose of resale should be in all things exempted,
      and to be exempted from the necessity of placing tags or
      labels upon such custom mixed feed stuff and should be
      exempted from any additional tax upon such custom mixed
      feed stuffs where the original Ingredients in such custom
      mixed feed stuffs have already had the tax paid on same,
              ”
      . . .

             It is our opinion that Section 7 of House Bill 169 codlfled as
Article 3881b, Vernon’s Civil Statutes, and Section 8(a) codified as Article
388111, V. C. S., are not in conflict with the expressed intent of the Legis-
lature as set forth in the emergency clause or gleaned from reading the
amendatory act from its four corners, and that said sections are not in
conflict with each other, We will not attempt to answer each of your ques-
tions categorically, but will give our construction of the amendatory act
and set forth our conclusions which we believe will enable you to enforce
the original Act as well as the amendment in accordance with the legisla-
tive intent.

            House Bill 169 purports to change the old law in respect to
three things only: (1) It changes the method of paylr$ the inspection fee;
(2) exempts certain provtslons of the ‘Feeding Stuff law to sales of
special formula feed, or custom milling or mixing, as reflected by Sectlon
7 of the Act which reads as follows:

           “None of the provisions of the Revised Civil Statutes
      of Texas, 1925, Articles 3872, 3874, 3875, or 3877, as
      amended, nor the Penal Code of the State of Texas, 1925,
      Articles 1489, 1491, 1492, or 1493, shall apply to sales
      of special-formula feed, or custom milling or mlxlng, or
      any combination of such special-formula   feed and custom
      milling or mixing (1) when a tax has been paid on all ln-
      gredients supplied by the person mixing, milling or
Dr. M. T. Harrington, page 5       (Opinion No. S-181)



       processing such feed and (2) when all other ingredients
       are supplied by the consumer-buyer for his own use and
       not for resale.* J and

(3) exempts certain mllllng and mixing processes from all the provisions
of House Bill 169 except those pertaining to taxes in certain instances as
reflected by Section 8(a) of the Act which reads as follows:

            “It is speclflcally provided that no portion or Section
       of this Act, except those pertaining to taxes, shall apply
       to any milling or mixing process when all of the Ingredients
       are delivered by the owner thereof or by hls agent, or if the
       customer or his agent furnishes a portion of the ingredients,
       and the miller, mlrer, or processor adds other ingredients
       in amounts specified by such customer or his agent, or lf the
       customer specifies the amounts and percentages in such mtu-
       ture.”

             Section 6 of the act defines the term “Special-formula   feed’ as
follows:

            y ‘Special-formula feed’ means a mixture prepared
       for and according to the instructions of a consumer-buyer
       from lngredlents which are 01”have been purchased wholly
       from the person who manufactures, processes or mixes
       such mixture.”

and the term “custom milling” or “custom mixing” as follows:

            M‘Custom milling,’ ‘custom mixing,’ or like terms
       mean the milling, mixing or processing where all the
       ingredients are delivered by the owner thereof of by his
       agent (which agent shall not be the miller, mixer or pro-
       cessor or his employee) to the mill and are processed
       according to his instructions.”

             Section 8 provides:

            *Any person who sells special-formula feed or who
       processes custom mixed or milled feed, or any combina-
       tion of such feeds shall keep accurate records of all
       transactions regarding such sales and services; and shall
       give the consumer-buyer an invoice and shall forward a
       duplicate copy of such invoice to the director of the Texas
       Agricultural Experiment Station within ten (10) days after
       the close of each quarter year ending with the last day of
Dr. M. T. Harrlngton, page 6    (Opinion No. S-181)



      November, February, May and Aug.ust. The invoice shall
      show the total amount of such exempt feeds, the amount of
      each ingredient in the mixture, and the name of the con-
      sumer-buyer to whom such feed is delivered. For the
      purpose of determining the accuracy of such records, the
      dlrectur of said experiment station may with the permls-
      slon of the consumer-buyer collect samples from the
      consumer-buyer named in the invoice and analyze such
      samples to determine the conformity of the mIxtare to
      the statement on the invoice. Provided, however, such
      lnvolce shall not be required non issued at any time after
      the consumer-buye:r furnishes his affidavit to the director
      setting forth the fact that he does not want such invoice
      issued, and the director shall not collect samples from the
      consumer-buyer when such affidavit is so furnlshed, and
      provided further that such affldavlt may be revoked in
      writing and filed with the director at any time. Failure to
      comply with the requirements of this Section is punishable
      in the same amount and manner as prescribed in Article
      1493 of the Penal Code of the State of Texas.”

           From a reading of the entire act as a whole, as amended by
House Bill 169 we will set forth our conclusions as a summary.


                                 SUMMARY

           (1) That all “feeding stuff” as designated in Article 3872, V.C.S.,
should be labeled or a statement should be furnished as provided for in said
Article, except as hereinafter set forth.

           (2) That the manufacturer, importer, agent or seller of such
“feeding stuff” shall pay the inspection fee and tag same as provided in
Article 3875, except in those instances hereinafter stated.

           (3) That the importer, manufacturer or party who causes it to
be sold shall file the statements and deposit the samples of the ‘feed stuff’
as provided in Article 3874, V. C. S., except in those instances hereinafter
set forth.

           (4) That the analysis should be made as to all “feeding stuff” as
provided in Article 3877, except in those instances hereinafter stated.

           (5) That the inspection tax is due upon all ingredients supplied
by the person mixing, milling or processing “feed stuff even though the
mixture is a ‘“Special-formula feed” or a “custom milling” or “custom
Dr. M. T. Harrlngton, page 7      (Opinion No. S-181)



mixing’ feed as defined in Article 3881a and even if sold to a buyer-
consumer and is not purchased for re-sale.

           (6) That an inspection tax is not due to sales of “special-
formula feed” or custom milling or mixing or any combination of such
special formula feed and custom mll~llng or mlxlng as to the ingredients
that are supplied by the consumer-buyer for his own use and not for re-
sale. That an inspection tax is due in all, other instances.

            (7) That neither the provisions of Article 3872, 3874, 3875 or
3877 nor the corresponding provisions of the Penal Code, to-wit, Articles
1489, 1491, 1492, or 1493 apply to sales of special-formula feed or cus-
tom milling or mixing, or any combination of such special-formula     feed
and custom milling or mixing when a tax has been paid on all ingredients
supplied by the person mixing, milling or processing such feed and all
other ingredients are supplied by the consumer-buyer for his own use and
not for re-sale.

             (8) That all persons who sell special-formula feed or who
process custom mixed or milled feed or any comblnatlon of such feeds shall
keep the records and comply with the other provisions of Article 3881c, and
that a failure to comply would subject such person to a fine of not exceeding
$500.00 as provided in Article 1493 of the Penal Code.

           (9) Tbst the lnspectlon tax is due on all milling or mixing pro-
cesses even though all the ingredients are furnished by the person ordering
such feed, unless the feed is to be consumed by such person.

            (10) That the inspection tax is due on all milling or mixing
processes even though the customer furnisb.es a portion of the ingredients
and the miller, mixer or processor adds other ingredients in amounts spec-
ified by such customer unless the feed is to be consumed by the customer
and even then the tax would be due as to the portion of the ingredients fur-
nished by the miller, mixer or processor if a tax had not been paid on such
latter.ingredients prior thereto.

            (11) That the inspection tax is due on all milling or mixing
processes even though the customer specifies the amounts and percentages
in such mixture unless the ingredients are furnished by the customer and
is to be consumed by him and is not for re-sale.

           (12) That the provisions of Articles 3872 and 3875, V. C. S.,
and the corresponding Articles 1489 and 1492, V. P. C., apply in all ln-
stances where an inspection tax is due.

              (13) That every manufacturer, importer or seller must keep
all records    and make all reports provides for in Title 60, that will enable
Dr. M. T. Harrlngton, page 8    (Opinion No. S-181)



the director of the Texas Agricultural Experiment Station to determine
whether a tax is due or whether an exemption exists under the provisions
of either Article 3881b or 3881d.

            (14) The director of the experiment station by virtue of the
provisions contained in Articles 3875 and 3880 wherein he is empowered
to adopt such regulations as may be necessary for the enforcement of the
law does not have the authority to require manufacturers, importers, or
sellers of feed stuff to make any reports or keep any records not pro-
vided for in the “feeding stuff” law. Margolln v. State, 205 S.W. 2d 775
(Tex. Grim. 1947). Even if he had such authority, the order would be un-
enforceable, in that no penalty is provided by the Act for failure to comply.

                                       Yours very truly,

APPROVED:                             JOHN BEN SHEPPERD
                                      Attorney General
Mert Starnes
Reviewer

J. A. Amis,   Jr.
Reviewer                                      W. V. Geppert
                                              Assistant
L. W. Gray
Special Reviewer

Davis Grant
First Assistant

John Ben Shepperd
Attorney General
