                           June 22, 1988




    Mr. Perry L. Adkisson             Opinion NO. JM-920
    Chancellor
    Texas A & M University System     Re: Construction of Texas
    319 System Building               Commercial Fertilizer Con-
    College Station, Texas   77843    trol Act, chapter    63 of
                                      the Agriculture Code
                                      (RQ-1240)

    Dear Mr. Adkisson:

         You ask two questions    about the procedures    to be
    followed by the Director of the Texas Agriculture Experiment
    Station in enforcing the Texas Commercial Fertilizer Control
    Act, chapter  63 of the Agriculture    Code. These are as
P
    follows:

               1. Whether a fertilizer manufacturer   has
            a legal right to notification of violative
            analytical findings by the Texas Feed and
            Fertilizer Control Service and to exhaustion
            of legal remedies prior to the        service
            notifying purchasers of these findings; and

               2. Whether   the Director of the Texas
            Agricultural Experiment Station is compelled
            to give equal weight to analytical   findings
            of commercial   laboratories  when a    manu-
            facturer contests the results of the state
            chemist.

         Chapter  63 of the Agriculture     Code provides    for
    regulation of the manufacture and distribution of commercial
    fertilizer.  Agric. Code §§ 63.031, 63.051, 63.091,  63.121;
    see also Agric. Code 55 63.001, 63.002 (defining "commercial
    fertilizer" and other terms). The duties set out in chapter
    63 of the Agriculture Code are the responsibility of the
    Director of the Texas Agricultural Experiment Station, to be
    performed by the Texas Feed and Fertilizer Control Service
    under his direction.   The Agriculture Code prohibits    the
    manufacture  and distribution     of commercial   fertilizer
    without   a permit  issued by the service and       requires



                                p. 4606
Mr. Perry L. Adkisson - Page 2 (JM-920)




containers  of fertilizer to     be labeled with    certain
information, including the grade of the fertilizer and the
guaranteed analysis of plant nutrients in it. Agric.   Code
93 63.031, 63.051.

      Subchapter G of chapter 63 provides remedies for viola-
tions of the chapter,     including a stop-sale  order, con-
demnation, warnings, and a suit to enjoin a violation       or
threatened   violation.,   Agric.   Code 55 63.121,   63.122,
63.124.    Subchapter   Ii sets~ out criminal penalties    for
violation of chapter 63 and for other specific       offenses
which   include distribution    of misbranded,   adulterated,
unregistered, or unlabeled fertilizer.

     The service has authority to take samples of fertilizer
for analysis under section 63.091 of the code:

       f, 63.091. Inspection and Sampling: Entry Power

          In order to determine if commercial  ferti-
       lizer is in compliance with this chapter,  the
       service is entitled to:

              (1) enter during regular business hours              -,
          and inspect anv Dlace of business, mill,
          plant. buildina.  or vehicle,   and to 013811
          anv bin, vat. or Darcel. that is used in
          the manufacture.  transDortation.   imDorta-
          tion. sale. or storaae of a commercial
          fertilizer or iS SUSDeCted of containina   a
          commercial fertilizer: and

              (2) take samples from fertilizer  found
          during that inspection.  (Emphasis added.)

Agric. Code 5 63.091. Each sample is sent to the        service,
with a report providing the following information:

           (1) the name or      brand   of   commercial
        fertilizer sampled;

           (2)   the serial number of the sample:

            (3) the manufacturer   or cruarantor of   the
        samDle. if known;

           (4) the name of the Derson in     Dossession
        of the lot samDles [sic];




                              p. 4607
Mr. Perry L. Adkisson - Page 3   (JM-920)




           (5) the date    and   place   of   taking   the
        sample: and

           (6) the name of the person who took         the
        sample. (Emphasis added.)

Agric. Code 5 63.093(b).

     The service thus is authorized        to take fertilizer
samples   from   persons    or   entities    other  than    the
manufacturer.   Section 63.093(b)(3) of the code indicates
that the name of the manufacturer      may be unknown,    while
section 63.093(b)(4) indicates that the person in possession
of the lot sampled1 may be different from the manufacturer.
The service is entitled to enter "any place of business,
mill, plant, building      or vehicle,"    and may open     any
container   "that is     used in    the manufacture,     trans-
portation,   importation,   sale, or storage of commercial
fertilizer" or that is "suspected of containing a commercial
fertilizer. . . .I1 Agric.     Code § 63.093(b).    Thus, the
sample may have been taken from the manufacturer,        trans-
porter, seller, or purchaser of the fertilizer.    your letter
states that the service routinely         acquires samples of
manufactured fertilizers as they appear in the marketplace.

     The samples collected are analyzed by the office of the
State Chemist. See Agric. Code 5 63.003(c) (appointment of
a state chemist).   If the service finds that a commercial
fertilizer is in violation of a provision of chapter 63 of
the Agriculture Code, it is required by section 63.094 to
"notify the manufacturer or other person who caused the



     1. Section 63.093(b)(4) should read as follows:      "the
name of the person in possession of the lot sampled. . . .I1
The prior version  of section 63.093(b)(4)   referred to the
"lot sampled.01 Acts 1961, 57th Leg., ch. 27, § 8(b),     Cd),
at 54, 58. Chapter     141 of the Agricultural   Code, which
regulates  commercial   feed, includes section    141.103 on
identification of feed samples.    Section 141.103, which   is
virtually identical to section 63.093 of the code, provides
that the report to the service should contain "the name of
the person in possession of the lot SamDled. . . .I' Agric.
Code § 141.103(b)(4).    (Emphasis added.)   Chapters 63 and
141 of the Agricultural Code were amended by a single bill
adopted by the 68th Legislature.   Acts 1983, 68th Leg., ch.
349, at 1851. The small change in section        63.093(b)(4)
appears to have resulted from a typographical error.




                             p. 4608
Mr.   Perry L. Adkisson - Page 4   (JM-920)




fertilizer to be distributed."   Agric. Code g 63.094(a). The
manufacturer or distributor   of the fertilizer   then has an
opportunity to have an independent analysis     of the sample
collected by the service. Agric. Code 5 63.094(b).

     Your first question arises from the service's  practice
of sending purchasers of fertilizer a copy of the state
chemist's analysis  three days after sending     it to the
manufacturer.  YOU state that a fertilizer manufacturer
maintains that this is an improper procedure because (1) the
state has no statutory   authority to inform the purchaser
until remedies   specified  in section 63.094 have      been
exhausted and the issue has been resolved and (2) notifica-
tion prior to resolution is a denial of the manufacturer's
due process rights. We will first consider the authority of
the service to inform the purchaser of the chemical analysis
prior to exhaustion   of the remedies   set out in section
63.094.

     You have submitted copies of the notification sent to
the manufacturer  and then to the purchaser.      The cover
letter states that, on the basis of an enclosed   laboratory
analysis report, the fertilizer is in violation of the Texas
Commercial Fertilizer Control Act. It requests the manu-
facturer to review all factors which might have resulted  in
this deficiency, invites it to supply additional information
which will justify changing the conclusions of the report,
and informs it that it may request an independent analysis.

     The laboratory analysis  report accompanying the cover
letter states the     percentages  of chemical    components
guaranteed for the fertilizer  and the percentages shown by
analysis   of the   sample.   It   includes the    following
statement:

             LABORATORY  ANALYSIS  DEMONSTRATES  THIS
          PRODUCT TO BE EITHER DEFICIENT OR EXCESSIVE
          IN ONE OR MORE OF THE LABEL GUARANTEES
          HIGHLIGHTED ABOVE.

             THE SAMPLE RESULTS FALL OUTSIDE THE RANGE
          OF SAMPLING AND ANALYTICAL ERROR.    THE MT
          OF PRODUCT IS THUS CONSIDERED      TO BE IN
          VIOLATION OF THE ECONOMIC PROVISIONS OF THE
          TEXAS COMMERCIAL FERTILIZER CONTROL ACT.

             THE SAMPLE WILL BE RETAINED FOR FIFTEEN
          (15) CALENDAR DAYS FOLLOWING THE DATE OF THIS
          REPORT TO ALLOW THE MANUFACTURER TO REQUEST A
          PORTION FOR HIS OWN USE. WITHIN THIS TIME,



                              p. 4609
Mr. Perry L. Adkisson - Page 5   (JM-920)




        THE MANUFACTURER IS FURTHERMORE PROVIDED THE
        OPPORTUNITY OF. REQUESTING ANALYSIS   BY TWO
        INDEPENDENT   LABORATORIES SELECTED BY    THE
        STATE CHEMIST. THE RESULTS OF SUCH INDEPEN-
        DENT ANALYSES WILL BE TAKEN INTO CONSIDERA-
        TION IN MAKING A FINAL DETERMINATION OF THE
        LEGAL STATUS OF THE SAMPLE.      A CORRECTED
        REPORT WOULD BE ISSUED IF THE STATUS CHANGED.
        UNLESS CHANGED, THIS ANALYSIS WILL APPEAR AS
        A VIOLATIVE LISTING IN THE ANNUAL PUBLICATION
        OF THE OFFICE OF THE TEXAS STATE CHEMIST.

     Much of the information set out in section    63.093(b)
of the Agriculture  Code appears on the analysis     report,
including the name of the manufacturer or guarantor and the
name of the possessor.   In both of the sample notices you
submitted,  copies of the cover      letter and   laboratory
analysis report were sent to the entity identified as the
possessor of the fertilizer lot from which the sample was
taken. Thus, in these cases, the service took samples   from
the purchaser  of  the fertilizer,   and then sent him the
results of its analysis of those samples.

     No provision of chapter 63 states that the service may
or must send a copy of the report to the possessor or to the
purchaser.   We do not, however, believe express   statutory
authority is necessary for the service to send the purchaser
or possessor   of fertilizer its chemical analysis of that
product.

     In Terre11 v. Soarks, 135 S.W. 519     (Tex. 1911),   the
Supreme Court of Texas stated as follows:

        The grant of an express power carries with it
        by necessary   implication every other power
        necessary and proper to the execution of the
        power granted.    When the law commands  any-
        thing to be done, it authorizes the perfor-
        mance of whatever may be necessary        for
        executing its commands.

Terrell' v. SDarkS,   135 S.W. 521     (Tex. 1911)   (quoting
Sutherland on Statutory Construction, 5 341). See Stauffer
v. c    of San Antonio, 344 S.W.2d 158 (Tex. 1961)     (civil
service commission   does not have implied authority       to
resolve    fact  questions   of    fireman's  fitness     for
reinstatement).  In Bullock v. Calvert, 480 S.W.2d 367 (Tex.
1972) the court stated that




                            p. 4610
Mr. Perry L. Adkisson - Page 6    (JM-920)




       every specific, permissible act of a public
       officerneed  not be expressed in a statute: we
       imply the authority to do those acts necessary
       to achieve the power or object expressly
       granted, because  the Legislature   must have
       intended to grant the constituent      details
       within the larger commission.

Bullock v. Calvert    480 S.W.2d 372 (Tex. 1972) (dicta, no
statute authorized'secretary of state to spend state funds
to conduct party primary elections).

     In SeXtOn v. Mount Olivet Cemetarv Association,     720
S.W.2d 129 (Tex. App. - Austin 1986, writ ref'd n.r.e.), the
court stated that the legislature generally intends that an
agency should have by implication such authority      as is
necessary to carry out specific powers and duties, so that
the statutory purpose might be achieved.

     We would not expect a state agency to have express
authority to engage in correspondence relevant to its duties
or to send copies of its correspondence          to interested
persons.   See aenerallv   V.T.C.S.    art. 6252-17a,  5 6(15)
(informationavailable    to public by agency policy as of the
effective date of the Texas Open Records Act).         In our
opinion, the service has implied authority based on sections
63.091, 63.093, and 63.094 of the Agriculture Code to send a
copy of the laboratory report to the purchaser or possessor
of the fertilizer.    The person    from whom the service has
obtained the fertilizer and who is identified in the report
accompanying the sample as the possessor of the fertilizer
sampled has a special interest in learning the result of the
analysis.   The purchaser, if different from the possessor,
is similarly interested in that information.      No provision
of chapter 63 requires the service to keep the fertilizer
analysis   a secret from everyone but the manufacturer.
Comoare Agric. Code g 63.094 with Agric. Code § 63.095
person may initiate submission       of sample   for analy:E'
results may not identify manufacturer         and may not b;!
published).   See also Agric.   Code § 63.005(a)(2) (at least
annually, director shall make public results of analysis       of
fertilizer samples).   In sending the purchaser or possessor
a copy of the analysis        report, the service     provides
information generated by its inspection and testing powers
to parties who were involved in the exercise of those powers
and who have a significant interest in the results of the
testing.

     This practice  of the service helps carry out the              -
purposes of chapter 63.  When the Texas Fertilizer Control



                              p. 4611
Mr. Perry L. Adkisson - Page 7   (JM-920)




Act was adopted in 1961, it included the following emergency
clause:

          The fact that present laws are not adequate
       to regulate the manufacture and distribution
       of commercial fertilizers   in Texas: the fact
       that consumers  need uniform guarantees     and
       labeling of fertilizers which are offered    to
       them: and the further fact that it would be of
       great material advantage to have the laws of
       Texas conform insofar as practicable with the
       present day practices     of consumers, manu-
       facturers and    distributors   of   commercial
       fertilizer, and to afford maximum orotection
       to consumers of commercial fertilizers, create
       an emergency. . . . (Emphasis added.)

Acts 1961, 57th Leg., ch. 37, 5 19, at 54, 61-62.         An
emergency clause may be considered if it will aid the
court in ascertaining   the legislative   intent.  Trawalter
v., Schaefer, 179 S.W.Zd 765      (Tex. 1944) ; Gov't   Code
5 311.023(l).  A related purpose     is stated  in the bill
analysis for House Bill No. 1510 of the 68th Legislature,
the bill which adopted the present version of chapter 63 of
the Agriculture   Code.    The  bill analysis -states    the
following as background information:

       The guaranteed quality of commercial feeds and
       fertilizers are essential  for the successful
       operation of the agricultural   and livestock
       industries of Texas. Texas A & M University,
       through the Agricultural Experiment   Station,
       is charged with the regulatory  responsibility
       of guaranteeing of the labeling accuracy    and
       ingredient quality of these products as well
       as pet foods and homeowner products.

House Committee on Agriculture and Livestock, Bill Analysis
to H.B. No. 1510, 68th Leg.        (1983).  See Gov't Code
§ 311.023(3) (in construing   a statute, court may consider
legislative history).

     Informing the purchaser or possessor of fertilizer   of
the laboratory  analysis report will help carry out the
legislative purpose of protecting consumers.  The purchaser
or possessor can refrain from applying the fertilizer to the
soil if it has not yet been applied.  If it has been, he has
an opportunity  to determine whether supplemental   applica-
tions should be made to correct the balance        of plant
nutrients in the soil.




                             p. 4612
Mr. Perry L. Adkisson - Page 8   (JM;920)




     Your letter states that original findings are mailed to
the purchaser   three days after the mailout to the manu-
facturer so that the manufacturer will have an opportunity
to initiate a monetary settlement with the purchaser.       By
informing the purchaser     of the original     findings,  the
service encourages    manufacturers   to be responsible    for
the quality of their products      and to, be accountable   to
consumers.   In this way, the consumer protection purposes of
chapter 63 are carried out. &.g Gov't Code 5 311.021(5) (in
construing a statute, a public interest     is favored over a
private interest).

     We note that the predecessor     to section   63.094(a)
provided that, in case the fertilizer was found in violation
of chapter 63,

        the director shall notify the manufacturers or
        other person who caused the fertilizer to be
        distributed  and the consianee.      (Emphasis
        added.)

Acts 1981, 67th Leg., ch. 388, at 1012, 1147        (adopting
Agriculture Code). The "consignee" is not the purchaser    or
consumer, but the person to whom the product is delivered         -.
for transportation   or sale. Webster'.s Third New Inter-
national Dictionary;   m  Charles M. Stieff,   Inc. v. Citv
of San Antonio,    111 S.W.2d 1086   (Tex. 1938)    (defining
V*consignment*' and "consigned").    The deletion    of   the
mandatory requirement that the consignee   be notified   does
not demonstrate any legislative intention to restrict     the
service's implied authority to send purchasers of fertilizer
and possessors of the lots sampled copies of the analysis
report. We conclude that the service has implied statutory
authority to send copies of laboratory analysis reports    to
the purchaser of the fertilizer that was tested.

     We next consider whether    the due process clauses     of
the United  States and Texas Constitutions       entitle    the
fertilizer manufacturer   to notice and a hearing        before
the laboratory report is sent to the purchaser         of the
fertilizer.  The .Fifth and Fourteenth     Amendments  to the
United States Constitution and article I, section 19, of the
Texas Constitution prevent the state from depriving    persons
of property  or liberty without due process of law.         The
manufacturer is a corporation and not a natural person      and
thus cannot claim due process protection      for the liberty
guaranteed by the Fourteenth    Amendment   or by article    I,
section 19, of the Texas Constitution.    Pierce v. Societv of
Sisters, 268 U.S. 510 (1925); Western Turf Association       v.
Greenberq, 204 U.S. 359   (1901); Northwestern National    Life




                              P. 4613
     Mr. Perry L. Adkisson - Page 9    (JM-920)




     _Inurance Co.      Ri-     203   U.S.   243 (1906);   Annot.   47
     L.:d.2d 975, 98?(1975).'

          The reputation of a natural personal person is analyzed
     as a liberty interest rather than a property interest under
     the due process clause. See Wisconsin v. Constantineau    400
     U.S. 433 (1971).    Even if the manufacturer were a naiural
     person who could invoke due process protection for a liberty
     interest, and if the transmittal of the fertilizer   analysis
     to his customer could be considered        damaging  to   his
     reputation, the due process clause would not afford him the
     notice and hearing he seeks. In paul v. Davis, 424 U.S. 693
     (1976) r the Supreme Court considered whether    a citizen's
     charge of defamation stated a claim for relief under 42
     U.S.C. 5 1983 and the Fourteenth Amendment.      The Supreme
     Court held that city and county police officials did not
     violate   the plaintiff's    due process  rights when    they
     circulated to local area merchants a circular that described
     him as an "active shoplifter."   The Supreme Court held that
     reputation alone, apart from some more tangible     interests
     such as employment,    was neither a liberty nor property
     interest sufficient to invoke the procedural protection    of
     the due process clause. 424 U.S. at 711-712. See Marrero
.-   v. Citv of Hialeah, 625 F.2d 499 (5th Cir. 1980)    (injuries
     to personal   and business reputations   caused by unlawful
     search and seizure are compensable under 42 U.S.C. § 1983 as
     element of damages).   The court moreover said that the due
     process clause does not extend a person the right to be free
     of injury "wherever the State may be characterized as the
     tortfeasor."   424 U.S. 701.

          We next consider whether    the manufacturer   has
     property interest which would invoke the protection of th:
     due process clause.

          Property interests are not created by the United States
     Constitution, but are created and defined by rules or
     understandings that derive from an independent source such
     as state law.    Ruckelshaus v. Monsanto Co., 467 U.S.    986
     (1984) (trade secrets); Board of Reaents v. Roth, 408 U.S.
     564 (1972) (public employment).   Intangible interests,  such
     as contracts, liens, and trade secrets, have been recognized
     as property   rights entitled to constitutional   protection.
     Ruckelshaus v. Monsanto    Co. suora (information recognized
     as trade secrets under Mis&.ouri law constitutes     property
     protected by Fifth Amendment's taking clause).

          The manufacturer   in this case asserts a property
     interest in good will. Texas courts have recognized    good
C
     will as property which consists of the advantage or benefit




                                  P. 4614
Mr. Perry L. Adkisson - Page 10   (JM-920)




acquired by an establishment beyond the mere value of the
capital stock,  funds, or property    employed therein,  in
consequence of the patronage of habitual customers which it
receives

        on account of its local position, or common
        celebrity,  or reputation     for skill,
        influence,  or punctuality,    or from 0th::
        accidental circumstances  or necessities,   or
        even from ancient partialities or prejudices.

Taormina v. Culicchia  355 S.W.2d 569, 573 (Tex. Civ. App. -
El Paso 1962, writ 'ref#d n.r.e.);          Texas  & Pacific
Railwav v. Mercer, 90 S.W.2d 557 (Tex.?36).     The owner may
recover damages for the destruction   of good will. Texas     &
Pacific Railwav Co. v. Mercey, m.         Good will is not,
however, compensable as a separate and independent item of
recovery when the state takes land occupied by a business in
eminent domain proceedings.  State v. Za ba 418 S.W.2d 499
(Tex. 1967); Citv of Dalla     Priol o, 2:: S:W.2d 176    (Tex.
1951). Nor is the goodswyll      of a physician's      medical
practice considered to be property subject to division     upon
divorce. Wail v. Naib, 486 S.W.2d 761 (Tex. 1972).

     Texas courts have moreover     held that both liberty
interests and property interests are held subject to the
exercise of the state's police power.       Citv  f Colleae
Station v. Turtle Rock Core      680 S.W.Zd 802 (Gex. 1984)
(alleged taking of property;;     Ci tv of New Braunfels v.
Waldschmit  207 S.W. 303 (Tex. 1918); Houston & Texas Cent.
Railwav v.'Dallas,  84 S.W. 648   (Tex. 1905). State police
power is grounded upon the public need for safety, healthy
security, and protection   of the general welfare    of the
community. Jefco. Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ.
APP. - Austin 1975, writ ref'd n.r.e.). The wisdom of the
exercise of the police power is largely for legislative
rather than judicial determination.    J& at 922.

     Sending the fertilizer analysis report to the purchaser
    in our opinion, a reasonable exercise of police power to
iF&ect the general welfare by protecting     consumers   from
mislabeled products  and by limiting damage to the agri-
culture of Texas that might result from distribution      and
application of mislabeled fertilizer.  The purchaser is also
informed of the manufacturer's right to have an independent
analysis of the fertilizer and of the possibility that a
corrected report might be issued. This information     should
minimize the effects   on the manufacturer's customer   rela-
tions, if any, caused by sending the laboratory report to
the customer.  We believe the Texas courts would hold that




                             p. 4615
     Mr. Perry L. Adkisson - Page 11      (JM-920)




     good will does not include patronage     attributable to the
     consumer's   ignorance of    possible product     deficiencies
     discovered by the legislatively authorized testing     program
     set out in chapter     63 of the Agriculture       Code.   See
     aenerallv Open Records    Decision No. 48     (1974) (sect=
     3(a)(4) of the Open Records Act does not protect competitive
     situation based     on public    ignorance of     content    or
     wholesomeness of food products). a     uternational   Business
     Machines Corooration v. United States of $merica, 298 U.S.
     131 (1936) (no exception to Clayton Act for trying clause
     directed at protecting good will).

          Since we conclude that no property interest is affected
     by governmental   action in this case, we need not decide
     whether the review procedures    set out in section    63.094
     would accord due process. See, u,        Ewina v. Mvtinaer   &
     Casselberrv. Inc., 339 U.S. 5' 94 (1950) (due process  clause
     not violated   Iny federal statute authorizing    seizure of
     misbranded   articles upon agency finding, made       without
     hearing, of probable    cause that misbranded    article was
     dangerous to health or that labeling was fraudulent         or
     misleading to the injury and damage of consumer):   Buttfield
      . Strmnah an , 192 U.S. 470     (1904) (no deprivation     of
.-   property without due process     in tea examiner's    summary
     seizure of imported tea based on his judgment that         its
     quality did not meet federal standards for wholesomeness);
     Annot. 69 L.Ed.2d   1044 (1981) (application of due process
     guarantees to summary administrative deprivation of property
     interest).

             Your second question is:

                   Whether the Director of the Texas Agri-
                cultural Experiment Station is compelled   to
                give equal weight to analytical findings of
                commercial laboratories  when a manufacturer
                contests the results of the state chemist.

             Section 63.094   of   the Agriculture   Code   provides   in
     part:

                   (b) After receiving a notice under Sub-
               section (a) of this section, the manufacturer
               or other person who caused the fertilizer   to
               be distributed may request that the service
               submit portions  of the sample analyzed     to
               other chemists   for independent    analysis.
               After receiving a request, the service shall
               submit two portions of the sample analyzed to
               two qualified   chemists   selected by    the




                                      P. 4616
                                                                    .
Mr.. Perry L. Adkisson - Page 12 (JM-920)



                                                                    -,

        service.  If requested,   the service    shall
        also submit one portion of the sample to the
        person requesting  independent   analysis.   A
        request under this subsection must be filed
        with the    service before     the 16th    day
        following the day on which notice is given.

           (c) Each of the chemists selected by the
        service under Subsection (b) of this section
        shall analyze the portion of the sample and
        certify findings to the service under oath.
        The findings shall be prepared in duplicate
        and the service shall forward one copy of
        each chemist's  findings to the person who
        requested independent analysis.

            (d) The three chemical analvses   obtained
        under this section mav be considered        in
        determinina  whether  a violation    of   this
        chaoter has occurred.   (Emphasis added.)

Agric. Code 5 63.094.     Section 63.094(d)   does not dictate
the weight    to be accorded   any of the three analyses       in
determining whether a violation of chapter 63 has occurred.
Nor does    it state that the analysis        results will be
dispositive of any question     as to violation.      It merely
authorizes    the use of the three chemical        analyses    in
proceedings to determine whether     a violation of chapter    63
has occurred. See Webster's Ninth New Collegiate Dictionary
(1983) (wmay" used nearly interchangeably with "can*@). See
w    Agric. Code subch. G, H      (administrative and judicial
proceedings for enforcing chapter 63). Neither the director
of the Texas Agricultural    Experiment Station nor any court
that hears a case alleging violation        of chapter    63 is
compelled by section 63.094 of the Agricultural Code to give
equal weight      to   analytical    findings   of    commercial
laboratories when a manufacturer has requested      independent
analysis   of    fertilizer   samples pursuant     to    section
63.094(b).

                         SUMMARY

          The Texas Feed and Fertilizer       Control
       Service has implied authority   to notify the
       possessor   or purchaser  of fertilizer   that
       laboratory   analysis of the product    demon-
       strates it to be out of compliance with the
       requirements of chapter 63 of the Agriculture
       Code. By sending this notification     to the
       purchaser or possessor,  the service does not



                               p. 4617
Mr. Perry L. Adkisson - Page 13    (JM-920)




       deprive   the   fertilizer    manufacturer    of
       property without due process of law.     Section
       63.094(d) of the Agriculture Code does. not
       require that    equal weight     be given     to
       analytical findings of commercial laboratories
       when a manufacturer contests the results of
       the state chemist's analysis.

                                  Jzyh


                                           MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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