                      The Attorney               General of Texas
                                               July         5,     1978
JOHN L. HILL
Attorney General


                   Honorable Reagan V. Brown                              Opinion No. H- 12 02
                   Commissioner
                   Texas Department of Agriculture                        Re: Whether        the     Texas
                   P. 0. Box 12847                                        Department of Agriculture may
                   Austin, Texas 78711                                    issue a nursery inspection certi-
                                                                          ficate based on inspection of
                                                                          premises when no nursery stock
                                                                          is present.

                   Dear Commissioner Brown:

                         You inquire about your duty to inspect nurseries under articles 119-135.1,
                   V.T.C.S. You ask whether you may issue a nursery inspection certificate
                   based on the inspection of premises at a time when no nursery stock is
                   present.

                        Article 126a states in part:

                                 The Commissioner of Agriculture shall cause to be
                              made at least once each year an examination of each
                              nursery or other place where nursery stock is exposed
                              for sale. If such stock so examined is apparently free
                              in all respects from any contagious or infectious
                              disease or dangerously injurious insect pests, the
                              Commissioner shall issue to the owner or proprietor of
                              such stock a certificate   reciting that such stock so
                              examined was at the time of such examination
                              apparently free from any such disease or pest.

                   “Nursery” is defined to mean “any grounds or premises on which nursery stock
                   is grown, or exposed for sale.” V.T.C.S. art. 135.1. Article 126 describes the
                   inspection process as follows:

                                 The Commissioner shall inspect or cause to be
                              inspected at least once each year each and every place
                              offering items of nursery products or stock . . . to




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           ascertain whether or not said item or premises are infected
           withy disease or insect pests injurious to human, animal or
           plant life.

Article 119 also requires the inspection of all nurseries and other places offering
items~ of plant life for sale. These provisions expressly require the inspection of
nursery stock. They define the premises to be inspected as a place where nursery
stock is grown or offered for sale. We believe the legislature has clearly expressed
its intent that the inspection take place when nursery stock is present.         The
Commission may not issue the inspection certificate described in article 126a based
on an inspection of premises alone. See Teacher Retirement System v. Duckworth,
260 S.W.2d 632 (Tex. Civ. App. - FoxWorth 1953), opinion adopted, 264 S.W.2d 98
(Tex. 1954); see also V.T.C.S. art. 126b.

       You state that in some cases it is impractical to inspect nursery stock prior
to issuing the certificate.    However, any inconvenience that results from the
statute as written must be remedied by legislation.   See Cullinan v. McColgan, 183
P.2d 115 (Cal. App. 194’7);Layman v. State Unemployment Compensation Comm., ll7
P.2d 974 (Ore. 1941).

                                  SUMMARY

           The Texas Department of Agriculture may not issue a
           nursery inspection certificate based on the inspection of
           premises when no nursery stock is present.




DAVID M. KENDALL, First Assistant




Opinion Committee




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