                       The Attorney               General of Texas
                                          December     29,    1978

JOHN L. HILL
Attorney General


                   Honorable Reagan V. Brown                         Opinion No. H- 132 6
                   Commissioner of Agriculture
                   P. 0. Box 12847                                   Re: Whether        Department    of
                   Austin, Texas 787ll                               Agriculture can require business
                                                                     selling nursery products and flo-
                                                                     rist items to obtain nursery in-
                                                                     spection certificate,    and floral
                                                                     inspection certificate.

                   Dear Mr. Brown:

                          You ask whether the Texas Department of Agriculture can legally require
                   a business selling both nursery products and florist items to obtain a nursery
                   inspection certificate and a floral inspection certificate.    Article 126, V.T.C.S.,
                   requires a yearly inspection of places offering items of nursery products or
                   stock, florists or other places growing and selling items of plant life and cut
                   flowers. If the items and premises are free from infection and infestation, “the
                   Commissioner shall, upon receipt of the inspection fee provided herein, issue to
                   the owner . . . a certificate. . . .‘I V.T.C.S. art. 126. See also V.T.C.S. art. 119
                   (also stating inspection requirement).    Article 133, V.T.C.S., provides inspection
                   fees of ten to twenty five dollars for inspection of premises handling nursery
                   products and five to fifteen dollars for inspection of premises offering florist
                   items.

                          We believe article 133, V.T.C.S., authorizes the commissioner to collect
                   both fees for the inspection of premises offering both nursery products and
                   florist items. Although article 126 classes nurseries and florists together and
                   refers to an inspection certificate   for premises selling items of plant life and
                   cut flowers, it also makes receipt of the certificate contingent upon payment of
                   the statutorily  required fee. Articles 126 and 133 are statutes in pari materia,
                   and can be construed in harmony by reading them to authorize issuance of a
                   separate certificate    reflecting payment of the separate fees. See Calvert v.
                   Fort Worth National Bank, 356 S.W.2d 918 (Tex. 1962).              Moreover, the
                   commissioner has authoritv under article 119, V.T.C.S.. to make rules and
                   regulations for the inspection of cut flowers and plants. in our opinion, his rule
                   making power includes the authority to require separate certificates     reflecting
                   the payment of the separate fees authorized by statute.




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Honorable Reagan V. Brown      -   Page 2       (H-1320)



         You also note that article 135.1, V.T.C.S., defines “nursery stock” to include florist
items, while article, 135, V.T.C.S., excludes florist items from that definition and
separately defines “florist.” You ask which definition you should use in carrying out the
law. Articles 135 and 135.1 derive from a single provision first enacted in 1909. Acts 1909,
31st Leg., ch. 19, S 8. The predecessor of article 135.1, V.T.C.S., was transferred without
reenactment from the Penal Code to the civil statutes when the new Texas Penal Code
was enacted. Acts 1973, 63rd Leg., ch. 399, S 5(a). Article 135 was amended in 1959 to add
the definition of florist. Acts 1959. 56th Lee.. ch. 280, S 17, at 613. Article 135 represents
the latest expression of legislative intent &I its definitions wiRprevai1 to the extent it
conflicts with article 135.1. See Commercial Standard Fire & Marine Co. v. Commissioner
of Insurance, 429 S.W.2d 93Omx. Civ. App. - Austin 1968, no writ).


                                       SUMMARY

              The Texas Department of Agriculture can legally require a
              business     selling both nursery products and florist items to
              obtain a     nursery inspection certificate and a floral inspection
              certificate.        The definitions   that appear in article 135,
              V.T.C.S., prevail over those in article 135.1 to the extent of any
              conflict.




                                               Attorney General of Texas

APPROVED:                          v




DAVID M. KENDALL, First Assistant




Opinion Committee




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