                   THE               AYCTO

                                              OF          TEXAS




Honorable          H. Q.      Sibley,     D. V. M.                                  Opinion         No.       H-      148
Executive         Director
Texas      Animal           Health     Commission                                   Re:          The      requirement            that
1020    Sam      Houston        State     Office      Building                                   brucellosis            infected
Austin,         Texas       78701                                                                cattle      be branded          and
                                                                                                 slaughtered.               Article
Dear      Dr.     Sibley:                                                                        152513,       $ 23A,       V.T.P.C.


          You have           asked      whether      the       Texas       Animal         Health       Commission               can
require         slaughter       of brucellosis            diseased             animals        within        fifteen      days    of
their     designation          as a “reactor.             ”


          Section       23A     of Article         1525b,          Vernon’s         Texas        Penal       Code,       provides:


                    “(I)     Purpose.          It is the purpose                  of this     Section         to
                    bring       about     the effective               control     and eventual              eradi-
                    cation       of bovine         brucellosis            in the State           of Texas          and
                    to accomplish             that purpose               in the most           effective,
                    practical,          and    expeditious               manner.


                     ‘I..      . .


                     “(18)     Should     evidence            of infection         be disclosed              in any
                    of the animals             required            to be tested,            such    animals
                    that      react     to the test           shall     be fire      branded        with       the
                    ,letter      ‘B’ on the        left   jaw and          such      cattle      and herds
                     shall     be handled          in accordance                with     regulations            of the
                    [Texas           Animal    Health          Commission]               which      sha,ll      provide
                    for      the issuance          of quarantines,                the manner,               method
                    and system            of disposing              of reactor         cattle,      the testing
                    and retesting             of infected             herds,      and the cleaning                 and
                     disinfection         of premises                 following        removal         of     reactor
                     cattle.     ”




                                                              p.   694
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The      Honorable         H. Q.         Sibley,          page        2         (H-148)




          Among       the regulations                   and procedures                    adopted           by the        Texas       Animal
Health      Commission              is        “Plan     A - Voluntary                   Cooperative              Agreement             for     the
Control      and Eradication                    of Brucellosis                   in Bovine         Animals.           ”    Section       II
provides         in part:


                    “2.      All     animals            designated                as    reactors        must         be fire
                    branded          with       the fetter             ‘B’ on the left                jaw as        required
                    by Saw and disposed                      of within               fifteen     (15) days           by con-
                    signing         them        for     immediate                 slaughter           to establishments
                    maintaining                Federal,           State          or Municipal               veterinary
                    post-mortem                  inspection.               ”


          You     have      informed            us that the acceptance                          of Plan        A is a prerequisite
to the issuance             of a Grade             A milk         permit             by the State            Department               of Health.


          By the express                 language          of the          statute,        the Legislature                  empowered
the Commission               to determine                 the manner,                   method         and system               of disposal
of reactor        cattle.          It is       clear      that    the Legislature                     has    the power            to give
this    authority         and discretion                to the Commission.                            Mulkey         v.    State,      201s.         W.
991 (.Tex.       Crim.      1918) ; Attorney                General               Opinion        WW-835             (1960).


          We     do not believe                that    the method                 chosen        for    the identification                and
destruction         of contaminated                    cattle         is violative             of any       constitutional             protec-
tion.      See    specifically,                United      States           Constitution,              Amendment                14;    Texas
Constitution,            Article         1,    $ $17 and 19.                   The     exercise         of the police             power         of
the State        in designating                diseased          cattle          and consigning               them        for    slaughter
is not a constitutionally                      proscribed                 “taking”        or    “damaging”                of property.
Nunley      v.    Texas      Animal             Health       Commission,                    471 S. W.            2d 144 (Tex.          Civ.App.
San Antonio,          1971,        error         ref’d,     n. r. e.).                 Likewise,            there     is no constitutional
defect     in a procedure                which         permits             summary             administrative               action       subject
to later       judicial      review            in the interest                  of health       and safety.            North American
Cold     Storage      Co.     v.     City        of Chicago,                   211 U.S.        306     (1908);       Nunley v. Texas
Animal      Health         Commission,                  supra.




                                                                 p.       695
.   .




    The   Honorable    H.Q.        Sib:Ley,   page     3    (H-148)




                                                    SUMMARY


                             The      Texas   Animal       Health     Commission         may
                   require      the     slaughter     of brucellosis          infected   cattle
                   within     fifteen     days   of the determination             of infection.


                                                             Very     truly     yours,




                                                             Attorney         General    of Texas


    APPROV.ED:                     ‘




    DAVID     M.   KENDALL,             Chairman
    Opinion   Committee




                                                     p.    696
