             THE    ATTORNEY          GENERAL
                        OF   TEXAS


                        June 24, 1988




Honorable Roy Blake          Opinion No.   JM-922
Chairman
Senate Administration        Re: Whether commercial feed lots
Texas State Senate           are   subject to the Texas Feed
P. 0. Box 12068              Control Act of 1957 (RQ-1314)
Austin, Texas 78769

Honorable Bill Haley
Chairman
Public Education Committee
Texas House of Representatives
P. 0. BOX 2910
Austin, Texas 78722

Gentlemen:

     You ask that we examine Attorney General Opinions C-105
(1963) and H-895 (1976) to determine whether they correctly
decided that commercial  feed lots are not subject to the
Texas Commercial Feed Control Act of 1957.

     The Texas Commercial Feed Control Act of 1957l     was
enacted to Drotect the DUrChaSerS  of feed. In setting  out
the public necessity   for the act in the emergency clause,
the legislature noted:

           The fact that present laws are not ade-
        quate to regulate the manufacture and sale of
        commercial  feed in Texas; the fact that



   1. The act was originally      found at article    3881e,
V.T.C.S.,  but is now codified as chapter       141 of the
Agriculture Code. The act has been amended only once. Acts
1977, 65th Leg., ch. 641 at 1629. That amendment,   relating
to the inspection fee provided by the act, has no bearing on
what transactions are covered by the act. Revision of the
act as chapter 141 of the Agriculture Code was without
substantive change. Agric. Code. 5 1.001.




                                 P. 4625
Honorable ROY Blake
Honorable Biil Halev
Page - 2   (JM-922)-


        raisers in Texas of livestock, poultry,   and
        other animals need uniform guaranties     and
        labeling of feeds 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 feeders and feed
        manufacturers, and to afford maximum protec-
        tion to the purchasers   of feed, create an
        emergency   and imperative public necessity
        .   .   .   .

Acts 1957, 55th Leg., ch. 23, § 21 at 46.

     Six years after the passage of the act, the attorney
general was called upon to advise whether          the   act's
provisions apply to a commercial feed lot that contracts
with the owner of stock to keep and feed the stock at the
feed lot. Attorney General Opinion C-105 (1963) determined
that it did not. The basis for the holding in C-105 is that
rather than selling feed to a purchaser, a commercial     feed
lot performs  a service, the keeping of stock, for which
feeding is incidental.   In traditional terms, feed lot oper-
ators are engaged   in "agistment," the bailment of animals
for the purpose   of grazing and pasturing.   See Barclav v.
Burce, 245 S.W.2d 1021 (Tex. Civ. App. - Beaumont 1952, no
writ). The distinction between    sale and service   separates
those who are subject to the act from those who are not.
Feeding animals as part of agistment    is not "distributing
feed" within the meaning     of the Texas Commercial      Feed
Control Act of 1957.

     The distinction between sale and service is often in-
exact. In this context, however, when the distinction       as
applied is considered    against the background   of the act's
policy, it stands to reason. As set out in the act's emer-
gency clause, the policy behind the act is to protect      the
purchasers of feed.     When a rancher buys feed to give
directly to his own stock, he is protected as a purchaser by
the act. When a rancher contracts with a feed lot to keep
and feed his stock, he is not protected by the act, since he
is not a purchaser, but he is protected under the law of
agistment as a bailor.    If the stock is damaged, the burden
of proof is upon the feed lot as bailee to show that the
damage was not caused by negligence on the feed lot's part.
Barclav v. Burse,    245    S.W.Zd   at    1022-23.    so  the
sale-service distinction as applied     is consistent with the
policy behind the act.




                              P. 4626
Honorable Roy Blake
Honorable Bill Haley
Page - 3 (JM-922)


     Although this may be a close question, we are not
interpreting the act for the first time. In the quarter   of
a century that has passed since Attorney General    Opinion
C-105 was issued, no court has rejected this office's
interpretation of the act, and the legislature     has not
amended the act so as to make clear any intention to cover
commercial feed lots. We view this legislative inaction   as
dispositive of this question of statutory   interpretation.
Since 1963 the legislature has met in regular session
fifteen times.    By   failing to amend    this act,     the
legislature has sanctioned the construction    set out in
Attorney General Opinion C-105.

     Our conclusion, however, is supported by more than this
twenty-five year failure to amend the act. In 1976, at the
behest of the House Agriculture and Livestock      Committee,
this office reviewed Attorney  General Opinion C-105.    Just
before the opening of the 1977 regular session of the 65th
Legislature, this office advised the House Agriculture    and
Livestock Committee in Attorney General Opinion H-895 (1976)
that it reaffirmed Attorney General Opinion C-105. Yet even
though the 65th Legislature is the only legislature to ever
amend the act (Acts 1977, 65th Leg., ch. 641 at 1629), it
did not amend the act so as to reject Attorney        General
Opinion C-105. When an act is amended in some respect, but
not amended to change a construction placed on the act by
the attorney general, that is strong evidence of legislative
sanction of the attorney general's   construction.   See San
Antonio Union Junior Collese Dist. v. Daniel, 206 S.W.2d
995, 998 (Tex. 1947).

     As further evidence of legislative sanction    of this
office's construction, the 67th Legislature adopted a revi-
sion of the statutes relating to agriculture,  incorporating
them into the Agriculture Code, and again chose not to amend
the act. See Acts 1981, 67th Leg., ch. 388 at 1012.     When
the legislature  reenacts a statute without     change, the
legislature is presumed to have ratified prior statutory
constructions.  Marmon v. Mustans Aviation, Inc., 430 S.W.2d
182, 187 (Tex. 1968); Federal Crude Oil Co. v. Yount-Lee Oil
Co., 52 S.W.Zd 56, 62 (Tex. 1932). Given all this evidence
of legislative approval of this office's construction,    we
are not inclined to overrule Attorney General Opinion C-105.

     Moreover, with respect to the Texas Feed Control Act of
1957, this office has for twenty-five       years advised  that
commercial feed lot operators do not come within its terms
and are therefore not subject to its criminal        sanctions,
found in subchapter G of chapter       141 of the Agriculture
Code. Given this criminal    liability,    only the very most



                            P. 4627
Honorable Roy Blake
Honorable Bill Haley
Page - 4   (JM-922)


compelling reasons would cause us to change our view of          the
scope of the act.

     As one reason, it is suggested that when the act was
revised and incorporated   into the Agriculture    Code,  its
terms were changed  so that they now cover commercial    feed
lots. The argument    runs as follows:     By omitting    any
definition of VSsell" in section 141.001 and by defining
"distribute"  to   mean   *'otherwise supply"   in    section
141.001(6),  the legislature     rejected the   sale-service
distinction and thereby subjected commercial feed lot owners
to chapter 141 of the Agriculture Code.

     In fact, however, the terms of the act were not changed
by the adoption of the Agriculture    Code. Former article
3881e, section  3, provided   in pertinent   part  (emphasis
added):

        (b)   The term     ltsell*' or   ~~s.ale~~ includes
              exchange.

        (c)   The term lVdistributel'means to offer for
              sale, sell, barter, or otherwise   SUDD~V
              commercial feeds.

The Agriculture     Code   provides      in   section     141.001(6)
(emphasis added):

           'Distribute' means sell, offer for           sale,
        barter, exchange, or otherwise sm~ly.

Thus both the original version and the codification   always
applied to feed that was otherwise     SUDDlied.    Attorney
General Opinion   C-105 simply held that what      is being
supplied by a commercial  feed lot is not feed, but the
service of keeping stock.

     The revision of the Texas Commercial Feed Control Act
of 1957, when codified as chapter 141 of the Agriculture
Code, made no change in the law, as construed in Attorney
General Opinion C-105.   Moreover, we do not think that a
change as significant as broadening the scope of the act can
be inferred from such a subtle revision of the definitions
of the statute.

     It is also suggested as a reason for changing      our
interpretation that the sale-service  distinction makes no
sense in light of the operations of modern commercial  feed
lots. We have reviewed the materials submitted    regarding
modern commercial feed lots. Modern lots share with lots of




                                p. 4628
,


    Honorable Roy Blake
    Honorable Biil Haley
    Page - 5   (JM-922)

    thirty years ago the characteristic of being bailees of the
    stock they keep. If it is desirable, however, in light of
    modern operations  to provide owners of stock protection
    beyond their status as bailors by subjecting commercial feed
    lots to chapter 141 of the Agriculture     Code, that is a
    policy matter for the legislature.   See Moss v. Gibbs,  370
    S.W.2d 452, 458 (Tex. 1963).

                           SUMMARY

               Having    reconsidered   Attorney  General
            Opinions C-105 and H-895, we again hold that
            the Texas Commercial    Feed Control Act of
            1957, now codified as chapter     141 of the
            Agriculture Code, does not apply to feed lots
            which merely   keep and feed stock for the
            owner.




                                          JIM     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 F. Scott McCown
    Assistant Attorney General




                                  p.   4629
