                   THE   ATTORNEYGENERAL
                            OF      TEXAS
                           AUSTIN      ii.TEx~s
  WJLL    WILSON
A-l-l-O-GENERAL
                                 my    4,   1960

     Dr. Ft.G. Garrett
     Executive Director
     Texas Animal Health Commission
     State Office Building
     Austin, Texas
                              Opinion No. W-835
                                 Re:    Whether it Is mandatory un-
                                        der the provisions of Sec.
                                        23A.,Art. 152513,Vernon's
                                        Penal Code, that the Texas
                                        Animal Health Commission
                                        designate and begin bru-
                                        cellosis work in counties
                                        in the order in which valid
     Dear Dr. Garrett:                  petitions are received.
          Your letter of March 24, 1960, requesting the opinion
     of this deDartmetIt on the matters stated therein reads in
     part as f0ii0ws:
               "Specifically, an opinion is desired on
           the subject of whether the Commission may,
           at its discretion, postpone the beginning of
           brucellosis work in counties which have,sub-
           mltted valid petitions until such time as it
           is economically feasible and scientifically
           sound to begin such work, or is it mandatory
           that the Commission designate and begin bru-
           cellosis work in counties in the order in
           which valid petitions are received."
          Article 7009 of Vernon's Civil Statutes changes the
     name
     -    of the Livestock Sanitary Commission of Texas to the
     Texas Animal Health Commission and provides that hereafter
     all or any references thereto or laws relating to the Live-
     stock Sanitary Commission shall apply to the Texas Animal
     Health Commission, and all appropriations and benefits
     should be available to and apply to the Texas Animal Health
     Commission.
Dr. i?.G. Garrett, Page 2, (WW-835)

     The pertinent provisions of Section 23A, Article 1525b,
Vernon's Penal Code, concerning your question are set out as
follows:
         "(1) Purpose. It Is the purpose of this
     Section to bring about the effective control
     and eventual eradication of bovine brucello-
     sis In the State of Texas and to accomplish
     that purpose in the most effective, practical
     and expeditious manner."
         "(4) When seventy-five percent (75%) of
     the cattle owners in any area or county In
     this State, as reflected on the current tax
     ~0116, owning at least fifty-one percent
     (51%) of the cattle within that affected
     area or county, as reflected by said tax
     rolls, shall 'petitionthe Livestock Sanitary
     Commission of Texas to have such area or
     county, designated as a modified certified
     brucellosis free area, the Livestock Sani-
     tary Commission of Texas x   declare the coun-
     ty or area to be a brucellosls control area.
     If such-area follows county boundary lines
     it shall be designated as a 'County Brucello-
     sis Control Area,, the name of the county
     identifying the area." (Emphasis added)
         “(5) In the event that, for any valid
     reasons, the Livestock Sanitary Comlssion
     of Texas should decide that conditions within
     and surrounding the county originating such
     petition make It impractical to operate a bru-
     cellosis control area within the boundaries of
     such county, then the Texas Livestock Sanitary
     Commission is authorized to add additional
     territoryto such county area in reasonable
     amount, O s elf
          "(11) In order to effectuate the provisions
     and purposes of this Section',the Livestock
     San1.tary Commission of Texas is hereby author-
     ized to promulgate such rules and regulations
     and to require such reports and records as may
     be necessary D o *"
     Clearly, the Texas Animal Health Commission was author-
ized by the Legislature to establish its own rules and regu-
lations in bringing about the effective control of brucellosis
in Texas and may be governed, In establishing the county
Dr. R. G. Garrett, Page 3, (w-835)

brucellosis control areas, by the conditions existing in
particular areas and the needs as to effective controls on
a statewide basis rather than governed by the date a
petition for the.establishment of a control area might be
filed with the Commission by cattle owners In a particular
area. If it is determined by the Commission that a control
area is more urgently needed in a county filing a valid
petition later than a county where there is no great emer-
gency, this determination would be controlling rather than
the filing dates of the two valid petitions and there would
be no abuse of discretion on the part of the Commission.
     The Legislature has authority under the State's police
power to create the Livestock Sanitary Commission and to
empower it to establish, maintain and enforce quarantines
authorized by law, as it may deem necessary, as well as power
to authorize the Commission to make reasonable rules and regu-
lations to prevent the spread of contagious disease among
livestock. Mulkey v. State, 83 Tex. Crim. 1, 201 S W    9
‘(1918);Grandy v. State, a'/Tex. Crlm. 197, 220 s.w: 33; ?1920).
     In 1 Sutherland Statutory Construction, 3rd Edition,
Page 75, Section 313, it Is stated as follows:
        " s    the principal exercise of the legls-
    lative function is the determination of princi-
    ples in the establishment of basic policy and
    that the remainder of a statute merely outlines
    in such detail as seems desirable the machinery
    by which the basic principle is made effective.
    The legislative determination of all these de-
    tails is impossible and thus the creation of
    special administrative agencies for their deter-
    mination is, in fact, a basic policy determina-
    tion by the legislature. Thus, the grant to
    these agencies of rule-making power consistent
    with the general principles announced is not a
    delegation of the principal legislative functlon--
    that of policy determination--but is at most the
    delegation of a secondary legislative function--
    the function of making structural adjustments,
    establishing procedures and regulations for the
    achievement of the principal policy. . o *"
     Statutes which are enacted for the protection and preser-
vation of public health give wide latitude in rule-making
powers to an administrative body such as the Texas Animal
Health Commission. In 1 Sutherland Statutory Construction,
3rd Edition, Page 77, Section 314, it is further stated:
                                                              .   ‘




Dr. R. G. Garrett, Page 4, (WW-835)

         II
         . . . Where, however, frequent adjust-
    ment or detailed expert knowledge of the
    field is necessary, a legislative delegation
    with general policy standards is valid.
        "The validity of a particular standard
    therefore depends primarily on the field
    of activity regulated. Thus, in the field
    of public health, safety, and morals gener-
    al and Indeterminative standards of policy
    have usually been sustained 'andwide dis-
    cretion has been left to administration.
    . . .tt
     Also, as set out in Subsection 4, Section 23A, when
certain people "shall" petition the Texas Animal Health
Commission to have a certain area designated as a bru-
cellosls control center the Commission 'may" declare a
county or area to be a control center when a valid peti-
tion has been filed by 75s of the citizens owning 51% of
the cattle in a county or area of the State. The use of
the verbs "shall" and "may" make the provision as to the
filing of a petition mandatory and the provision as to
the establishment of control areas only directory and It
follows that the commission is given needed discretionary
powers in determining in which area work should first
begin in carrying out an effective brucellosis control
program regardless of the filing date of a petition.
     In 3,Sutherland Statutory Construction, 3rd Edition,
Page 116, Section 5821, it is stated as follows:
         "Where both mandatory and directory
     verbs are used in the same statute, or in
     the same section, paragraph or sentence
     of a statute, it is a fair inference that
     the legislature realized the difference
     In meaning, and intended that the verbs
     used should carry with them their ordinary
     meanings. Especially is this true where
     lshallt and 'may' are used in close juxta-
     position in a statutory provision, under
     circumstances that would indicate that
     different treatment is Intended for the
     predicates following them. O s *"
     It Is apparent from the foregoing statutes and author-
ities and, therefore, the opinion of this department that
the Texas Animal Health Commission, under its rule-making
powers granted by the legislature, may designate.and begin
brucellosis work in counties and areas in any manner it may
Dr. R. G. Garrett, Page 5, (~-8%)

see fit, this being entirely discretionary with the
Commission, so long as the stated purpose of this act to
control and eradicate bovine brucellosis is effectively
carried out.
                         SUMMARY
         The Texas Animal Health Commission
         may declare a county or area to be
         a brucellosis control area if and
         when it is deemed practical to
         carry out the purpose of this Act,
         the time and place being entirely
         discretionary with the Commission,
         and it is not mandatory under the
         provisions of Section 23A, Article
         1525b, Vernon's Penal Code, that the
         Commission designate and begin bru-
         cellosis work in counties in the
         order In which valid petitions are
         received.
                                   Very truly yours,
                                   WILL WILSON
                                   ;;xrza+



                                        Iola B, Wilcox
                                        Assistant

IBW:mm

APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Wallace Finfrock
John Reeves
MariettaMcGregor Payne
Marvin F. Sentell
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
