Departmentof Agriculture
Austin,Texas

Attention: Mr. CharlesE. Bau&man
Gentlemen
        :

                           OpinionNo. O-3273
                           Re: Requirementsfor the sale of nursery
                               stock.

Your letterof March 11, 1941, requestingan opinionof this department
regardingthe sale of nurserystocks,floral stocks and cut flowershas
had our attention.

You state that:

     "In the conductof the nurseryand floralbusiness,growers
     of nurserystock, floral stock and producersof cut flowers
     send their trucks and/or other Vehiclesto parts of the State
     removedfrom their place of businessfor the purposeof
     'peddling'such stocks and cut flowers.

     "Willyou pleaseadvise this Departmentwhere the owners of
     such nurseriesand floralplantshave compliedwith the
     provisionsof the Nursery InspectionLaw, by obtainingthe
     requiredInspectionCertificate,and where proper agents
     credentialshave been issuedcoveringtheir producingplace,
     if the ownersof such places of businesswould be requiredto
     obtainany kind of additionalcertificatefrom this Department
     in order to peddlenurserystock, floralstocks and/or cut
     flowersproducedby them."

We have carefullyexaminedthe provisionsof Chapter7 of Title 4
of the RevisedCivil Statutes,and Chapter 10 of Title 19 of the Penal
Code of Texas, dealingwith the subjectof nurserystocks and the
regulationthereofby the Commissionerof Agriculture.

Articles135 of the RevisedCivil Statutesand 1689of the Penal Code
define "nurserystock," "nursery,""dealer,""and"agent of a nurseryor
dealer." Article 119 of the RevisedCivil Statutesplacesnurseryand
floral stocks,cut flowers,etc., under the supervisionand controlof
the Commissionerof Agriculture. Article 120 of the ReVised Civil
Departmentof Agriculture, page #2    (O-3273)


Statutesand Article 1691 of the Penal Code make it unlawfulfor any
personunder the circumstances set forth to keep or keep for sale certain
stocks infestedwith diseaseor pests. Article I.26of the RevisedCivil
Statutesand Article 1.692of the Penal Code progide for a yearly exami-
nation by the Commissionerof each nurseryor other place where nursery
stock is exposedfor sale. The Commissioneris requiredto issue a certifi-
cate that such nurserystock is apparentlyfree from diseaseor pests,
if he so determines. Article I.21of the RevisedCivilgtatutesdeclares
that an infectedor diseasedtree, shrub or plant is a public nuisanceaird
the Commissioneris authorizedto abate it. Articles122, 123, I.24and
125,RevisedCivil Statutes,set forth the procedurefor such abatement.
Under Article l.27, RevisedCiail Statutes,and Article 1693 of the Penal
Code it is required-:thst the Commissioner'scertificateof freedomof
 diseaseor pests accompanyany shipmentor deliveryof nurserystock. It
 is made unlawfulto send out or delivernurserystock without this dertifi-
 cate. Article 131 of the RevisedCivil Statutesauthorizesthe Commissicmer
 to inspectall shipmentsof nurserystock. Article I.29of the Re%ised
Civil Statutesgives the Commissionerauthorityto revoke a certificate
 of inspectionfor false representations of for violationof law or the
 rules and regulationsof the Commission. Article 1696 of the Penal Code
dee:Mem it a crime to make false representations to the Commissionerfor
 the purposeof obtaininga certificate.Article 133 of the RevisedCivil
Statutesprovidesfor reasonableinspectionfees.

ArticlesI.27  and 130 of the RevisedCivil Statutesdeal with nurserystock
shipped into this State. Article 1&94ofthe Penal Code and 130 of the
Revised Civil Statutesdeal with the rights and liabilitiesof transporl
tation companiesand common carriers.

Article 1699 of the Penal Cods deals with the liabilityof an agent or
a dealer or nurseryman; and Article 1670makes unlawfulfraudulentsales.

We have thus reviewedthe pertinentprovisionsof the RevisedCivil
Statutesand the Penal Code relatingto nurserystock. It is our opinion
that the certificateof inspectionrequiredby Article 126 of the Revised
Civil Statutesand Article 1692of the Penal Cods is the only certificate
requiredfor the sale or deliveryof nurserystock by Chapter7 of
Title 4 of the RevisedCivil Statutesand Chapter10 of Title 19 of the
Penal Code of Texas

                                     Very truly yours
APPROVEDAPR. 16, 1941
s/ GROVE3SELLERS               ATTORKRYQXERALOF TEXAS
FIRST ASSISTANT
ATTORNEYCEWERAL                s/ James D. Smullen
APPROVEI):
         OPINIONCOMMITPEE
BY B. W. B. CHAIRMAN           BY
JDS:db/ldw                          James D. Smullen
                                           Assistant
