The Honorable Joe Hubenak          Opinion No. H-895
Chairman
Committee on Agriculture and       Re: Applicability of
   Livestock                       Texas Commercial Feed
P. 0. Box 688                      Control Act of 1957 to
Rosenberg, Texas 77471             commercial feed lots.

Dear Representative Hubenak:

     On behalf of the Agriculture and Livestock Committee,
you have asked if the Texas Commercial Feed Control Act of
1957, applies to feedlot owners while engaged in feeding and
maintaining animals of others for a fee, particularly with
respect to the provisions regarding inspection and record-
keeping. V.T.C.S. art. 3881e.

     Generally, the Texas Commercial Feed Control Act of 1957
regulates the sale or distribution of commercial feed for
animals, including the registration of feed brands and the
labeling of commercial feed containers.  The products covered
by the act are subject to inspection by the Director of the
Texas Agricultural Experiment Station and are subject to an
inspection fee based on tonnage. If a seller or distributor
pays the inspection fee when the feed is sold instead of
purchasing tax tags or certificates to be attached to feed
containers, he must maintain and furnish records to reflect
the tonnage of feed handled, and file quarterly reports.

     In 1963 Attorney General Opinion C-105 (1963) declared
that feedlot operators were engaged in 'agistment," the bailment
of animals for the purpose of grazing and pasturing them.
See Barclay v. Burge, 245 S.W.2d 1021 (Tex. Civ. App. --
Beaumont 195z no writ). On that basis, the opinion concluded
that feedlot operators were not engaged in the sale or
distribution of commercial feed within the meaning of the
Texas Commercial Feed Control Act of 1957. During the
intervening fourteen years, the statute has not been amended

                         p. 3765
The Honorable Joe Hubenak - page 2        (H-895)



and subsequent case law has not significantly affected the
construction of the statute. Cf. McMillen Feeds zinc. of
Texas v. Harlow, 405 S.W.Zd 12nTex.   Civ. App. --s-n
1966, writ ref'd n.r.e.1: Attorney General Letter Advisory
No. 49 (1973).

     In view of the long continued acquiescence of the Legis-
lature in the C-105 conclusion, we cannot say the unamended
1957 Act now applies to feedlot operators.  There has been
some suggestion that the manner of operating feedlots has
changed since 1963, but we cannot resolve disputed fact
questions.  In the absence of legislative action expressing
a different intent, we are constrained to conclude that feedlot
owners or operators who merely hold and fatten cattle for
others are not within the ambit of article 3881e, the Texas
Commercial Feed Control Act of 1957.

                          SUMMARY

            Feedlot owners or operators who merely hold
            and fatten cattle for others are not covered
            by article 3881e, the Texas Commercial Feed
            Control Act of 1957.

                              Very truly yours,




                              Attorney General of Texas

APPROVED:            Ll




                                                             .-3




Opinion Committee

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