                         THE                   ORNEY                 GENERAL
                                             OF-XAS


  IVILL        WILSON
A-OR-             GENERA=.
                                               April     9,    1962


          Dr. R. G. Garrett                                     Opinion     No. WW-1305
          Executive Director
          Texas Animal Health Commission                        Re:     Whether the Texas
          1020 State Office  Building                                   Animal Health Commission
          Austin 1, Texas                                               can require    slaughter
                                                                        poultry   being shipped
                                                                        into Texas to be consigned
                                                                        to slaughtering     estab-
                                                                        lishments    maintaining
                                                                        Federal veterinary       post-
          Dear Dr.       Garrett:                                       mortem inspection.

                             We are in     receipt      of    your    request   for   opinion    which
          is    stated       as follows:

                          "Specifically,       an opinion    is desired  as to
                  whether or not this Commission can require              that all
                  slaughter     poultry     being shipped into this State
                  be consigned        to slaughtering     establishments
                  maintaining       Federal    veterinary    post-mortem  in-
                  spection.        Present regulations       do not place any
                  restrictions       on the movement of slaughter        poultry
                  into Texas."

                       An inspection   of Article  152513, Vernon's                       Penal Code
          reveals   that Sections    10, 11, 12 and 13 govern the                         shipping
          of "livestock,     cattle  and hogs" into Texas.

                             Article   1505a of        the    Penal    Code states     in part    as
          follows:
                             11. . .

                         "(b)    The term "livestock"      means, and shall
                  include     any bovine,    equine,  caprine,  ovine or
                  porcine     animal.     . . .'

                    The above definition     of “livestock”    and the use of
          the word “cattle”   leads us to the conclusion      that “poultry”
          may not properly   be considered   livestock    or cattle, and that
          therefore  the provisions   of Sections     10, 11, 12 and 13 do not
          apply to poultry.
Dr.   R. G. Garrett,     page 2 (WV!-1305)



              However, Section       9 of   Article    152513 of    the     Penal
Code states     as follows:

              “Sec. 9.       It shall be unlawful       for any
      person,     firm or corporation         to ship, drive,
      drift,     haul,    lead or otherwise       move from
      any state,       territory     or foreign    country    into
      any county in the State of Texas, or for
      any railroad        company or other common carrier
      to haul,      ship,    or transport     into any county
      in the State of Texas from any state,                territory,
      or foreign       country,    any rattle     [except   steers
      and spayed heifers),           horses,    mules, asses,      sheep,
      goats,     hogs, domestic       animals or domestic        fowls,
      except as hereinafter           provided,    unless   the same
      are accompanied         by a health     certificate     issued
      by a veterinarian          authorized     by or recognized      by
      %he Texas Animal Health Commission on a health
      certificate       form prescribed       In the rules and
      regulations       of said Commission.           The said
      Commission shall provide            In its   rules and reg-
      ulations      for authorizing       and recognizing       vet-
      erinarians       of this state and of other states
      and Departments         of the United States Government
      and no veterinarian          shall be considered        as rec-
      ognized     or authorized       bu said Commission.        extent




      move into-the      State of Texas, or any railway        or
      other common carrier       that shall haul,      ship, or
      transport     into the State of Texas       any cattle
      (except    steers   and spayed heifers I, horses,       mules,
      asses,    sheep, goats,    hogs, domestic     animals or
      domestic    fowls,   in violation    hereof   without   the
      same being accompanied        by said certificate      shall
      be deemed guilty       of a misdemeanor,    and upon con-
      viction    thereof   shall be fined any sum of not less
Dr.   R. G. Garrett,     page 3~ (WW-1305)



       than Twenty-five     Dollars        25.00)    nor more
       than One Hundred Dollars            100.00)     for each
       head of livestock     and for each domestic
       animal or domestic      fowl which said person,
       firm or corporation,       railway    or other common
       carrier    ships,  hauls,   drives,     drifts,    trans-
       oorts.   leads.   or otherwise      moves into the
       State-of    Texas, in violation       hereof.      Cattle




               We note from the above Article          that all animals
there enumerated including          "domestic    fowls,"     which are shipped
into Texas must be subject          to a health     certificate      on a form
"prescribed      in the rules and regulations          of said Commission."
The form of the certificate           is to be left      to the discretion
of the Commission,       except that it must show "that said
livestock,      domestic   animals,     and domestic     fowls were inspected
by said veterinarian        sometime within      the preceding       ten days
before     they entered    the State of Texas. and that he found
them to be-free       of all infectious      and contagious       diseases,
as such are determined         by the Texas Animal Health Commission
to be dangerous       to livestock,      and that said animals were
subjected      to such tests,    immunizations,      and treatment       as
required     under regulations      adopted by said Commission,"            among
other requirements.        (Emphasis added).

               We feel from the legislative         intent    as expressed      in
Section     9 that since    the Texas Animal Health Commission may
by its rules and regulations           prescribe    a certain      health   certi-
ficate     which form must be executed         before   foreign     poultry    may
enter Texas, that it also has the authority                to promulgate       any
rules    or regulations     pertaining     to the tests,      immunizations,
and treatment       of poultry   coming into Texas for slaughtering.
The last sentence       of Section     9 in excluding      cattle,     sheep,
and hogs brought into Texas for slaughter               purposes     from certi-
fication     evidences    to us that the Commission was to require
certification,       under rules prescribed        by them, for all other
animals to be slaughtered          if they saw fit.

             Authority    is lacking,   however for the Commission to
require    that all poultry     shipped into Texas be consigned      to
particular     establishments    maintaining   certain  standards.    The
Legislature      has not given this power to the Commission,       and we
cannot infer      same from Section    9 which concerns    health certi-
ficates    only.
                                                                       .   .




Dr.   R. G. Garrett,    page   4 (WW-1305)



                            SUMMARY

       The Texas Animal Health Commission may not require
       that all poultry     shipped into Texas be consigned
       only to slaughtering       establishments     maintaining
       Federal   post-mortem    inspection.      Any control    over
       poultry   comes from Section       9 of Article   1525b of
       Vernon's   Penal Code which gives the Commission
       authority    to require    a special    health certificate
       under rules and regulations          of the Commission for
       all poultry    shipped into Texas for slaughtering.

                                          Yours   very   truly,

                                          WILL WILSON




FDW:jkr:mkh

APPROVED:
OPINION COMMITTEE

W. V. Geppert,     Chairman
Joseph Trimble
Charles Lind
Malcolm Quick

REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.
