                                        The Attorney             General of Texas
                                                        December 31. 1982
MARK WHITE
Attorney General


                                       Honorable Mike Driscoll                 Opinion No.   mJ-5f38
Supreme      Court Building            Harris County Attorney
P. 0. BOX 12546
Austin, TX. 76711. 2546
                                       1001 Preston, Suite 634                 Re: Whether the Harris County
512,475.2501                           Houston, Texas   77002                  sheriff has a duty to seize
Telex    9101674-1367                                                          and impound stray livestock
Telecopier     5121475-0266                                                    within the city limits of
                                                                               Houston
1607 Main St., Suite 1400
Dallas.   TX. 75201-4709               Dear Mr. Driscoll:
2141742-6944
                                            You have asked the following question:
4624 Alberta      Ave., Suite    160
El Paso. TX.      799052793
                                                 Does the Harris County Sheriff have a duty to
915,533.3484                                     seize and impound estrsy livestock and livestock
                                                 running at large within the portion of Harris
                                                 County which is within the corporate limits of the
,220 Dallas Ave.. suite 202
                                                 city of Houston?
Housk,“.   TX. 77002-6966
7131650-0666
                                             Chapters 142 and 143 of the Agriculture Code contain the statutes
                                        governing "estray livestock and livestock running at large" to which
606 Broadway,        Suite 312         you refer in your letter and brief. See Tex. Const. art. XVI, 923
Lubbock.  TX.       79401-3479
                                        (legislature may pass laws regulating livestock). Included in these
6061747-5236
                                        two chapters are provisions that impose upon county sheriffs a duty to
                                        seize and impound certain animals. Section 142.003 provides that upon
4309 N. Tenth. Suite I3                 receiving a report of the presence of an estray upon a person's
McAllen.    TX. 76501-1665              property, or upon public property, "the sheriff or the sheriff's
5121682-4547                            designee shall impound the animal and hold it for disposition...."
                                       -See Agric. Code 5142.002 (definition of "Estray"). sections 143.031
200 Main Plaza, Suite 400               and 143.080, which are contained in subchapters B and D of chapter
San Antonio,  TX. 76205-2797            143, respectively, provide that the "sheriff or a constable of the
51212254191                             county or area shall seize and impound" any animal mentioned in those
                                        subchapters that is illegally running at large. Since you have
 in Equal      Opportunityl
                                        inquired only about the duties of the Harris County Sheriff vis-a-vis
 Affirmative     Action     Employer    "estray livestock" and "livestock running at large," we will only
                                        construe these three sections, as they are the ones that deal with
                                        this subject.

                                            Sections 143.031 and 143.080 apply only in a "county or an area
                                       within a county" within which subchapters B and D have been voted into
                                       effect by the local "freeholders." Agric. Code §§143.024; 143.074.
                                       See also §§143.026; 143.076 (procedures for repeal of adoption of
                                       subchapter). The applicability of section 142.003, on the other hand,



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Honorable Mike Driscoll - Page 2    (IIW-588)




is not dependent upon an electio~n. For purposes of this opinion, we
will assume that subchapters B and D have been voted into effect in
Harris County. See Attorney General Opinion M-650 (1971) (predecessor
statutes voted into effect in 1932). We will further assume that all
or part of the city of Houston "as included within the election
districts wherein the stock law elections were held.

     You contend that your question should be answered in the
negative. As we understand it, your argument is essentially as
follo"s: (1) Houston is a home rule city; (2) as such, it possesses
all powers not denied by statute or by the Texas Constitution; (3)
provisions of the Houston city charter, and an ordinance enacted
pursuant thereto, empower the city to regulate estrays and livestock
running at large within its corporate limits; (4) since this
responsibility rests with the city, the foregoing provisions of the
Agriculture Code should not be construed to be applicable within the
Houston city limits.

     Home rule cities do have broad powers, see Tex. Const. art. XI,
55; V.T.C.S. art. 1175; Lower Colorado River Authorityy v. City of San
Marcos, 523 S.W.2d 641 (Tex. 1975);): Forwood v. City of Taylor, 214
S.W.Zd 282 (Tex. 19481, but those nowars sre2 far from absolute. Thev
are always subordinate to the power of the legislature. See Tex:
Const. art. XI, S5. In this instance, the question is not whether the
city of Houston is empowered to regulate livestock within its
corporate limits. The city's charter clearly authorizes it to do so.
Instead, it is whether the city of Houston has exclusive authority in
this area. This is a question of legislative intent. We may answer
your question in the negative &    if we conclude that the legislature
meant for the relevant Agriculture Code provisions to have no
applicability within the corporate limits of a home rule city with
charter provisions and ordinances authorizing it to regulate estrays
and livestock running at large within its corporate boundaries.

     The relevant provisions of subchapters B and D of chapter 143 do
not, on their face, preclude home rule cities from being included
within an election district in which an election is held for the
purpose of voting those provisions into effect. Nor do we perceive
any basis for reading into these provisions sn implied exception for
home rule cities. If anything, the wording of these provisions
suggests that the legislature intended that s        city, or portion
thereof, may be included in such election district.           Sections
143.021(a) and 143.071(a) both state that "the freeholders of a county
or an area within a county may petition the commissioners court to
conduct an election for the purpose of determining" whether the
animals named therein will be permitted to run at large "in the county
or area."    (Emphasis added).    See also §§143.021(d); 143.071(d)
(petition to describe boundaries of area in which election is to be
held). Nothing in this language suggests a legislative intent to
exempt home rule cities from a "county or area within a county." In




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     Honorable Mike Driscoll - Page 3        (MW-588)




     this context, we note that the quoted language is not significantly
     different from the language that appeared in the predecessor statute,
     viz., "county or such subdivision of a county." V.T.C.S. art. 6954.
     In construing this language, the court in English v. State, 292 S.W.
     229 (Tex. Crim. App. 1927). said that it found no evidence of
     legislative intent not to allow incorporated cities -- even those with
     ordinances authorizing them to regulate livestock -- to be included in
     election districts in which the state stock laws were voted into
     effect. The court said:

              This court is called upon to determine whether...
              it is legal to include in the district wherein the
              election was ordered the territory embraced within
              the incorporated city of Port Arthur.... It is
              true that the ueoule within a citv are not
              dependent upon the election. but the city might,
              by ordinance, prohibit stock from running at large
              within the incorporated limits. This was known to
              the Legislature, however, when the statute was
              enacted, without providing that in defining a
              district the commissioners' court should not
              include the territory embraced in any incorporated
              city. ... Nothing in the language [of the statute]
              can, in the opinion of the writer, imply any
              intention or direction that the people of the
              incorporated cities within the counties might not
              participate, [even] though such cities might, by
              ordinance, protect themselves against stock
              running at large within their boundaries. The
              language used with reference to the entire county,
              and the manifest intent that the election should
              be one in which all freeholders, whether urban or
              suburban, could participate, is illustrative of
              the legislative intent.... (Emphasis added).

     292 S.W. 230.   We recognize that the English court was not dealing
     with a home rule city, but in light of its reasoning and approach, we
     see no reason why it would have reached a different conclusion if a
     home rule city had been involved.

          It has been suggested that certain cases which preceded the
     English case stand for the proposition that the predecessors of the
     current state stock laws could not be given effect within the
     corporate limits of a city. The argument, we assume, is that if the
     former statutes could not be given effect therein, the current ones
     cannot as well. We will briefly consider these precedents, which, as
     the English court observed, "are not harmonious, but somewhat
     confusing." 292 S.W. at 230.




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Honorable Mike Driscoll - Page 4    (MW-58s)




     In Reuter v. State, 67 S.W. 505 (Tex. Crim. App. 1902), the court
held that an election to prohibit livestock from running at large
within Dallas County could have no effect within the city limits of
the city of Dallas, because the city's legislstively granted charter
gave it exclusive authority to control livestock within its
boundaries. In Neuvar v. State, 163 S.W. 58 (Tex. Grim. App. 1914),
however, the court held that since the state livestock laws did not
preclude incorporated cities from being embraced within the territory
within which those laws could be voted into effect, the county
elections in question were not invalid because the election districts
comprised incorporated cities. The court said:

          None of the statutory enactments providing for the
          adontion bv vote of either of said stock laws
          excluded the incorporated towns or cities from
          being embraced within the territory designated
          within which such stock law could apply. On the
          contrary, all the statutory enactments clearly
          provide that the whole of the county, which, of
          course, would embrace any and all incorporated
          cities and towns therein, as well as when the
          election is for any subdivision of such counties,
          shall or may be included.... (Emphasis added).

163 S.W. at 59-60. See also Bishop v. State, 167 S.W. 363 (Tex. Crim.
App. 1914). But in Cowand v. State, 202 S.W. 961 (Tex. Grim. App.
1918), the court followed Reuter, rather than Neuvar or Bishop, and
reached the same conclusion that it had reached there. On the other
hand, in English v. State, supra, the court held that a county stock
law election was not invalid because the election district embraced
the city of Port Arthur. Finally, in Lock v. Morris, 287 S.W.2d 500
(Tex. Cl". App. - Texarkana 1956, writ ref'd n.r.e.), the court,
citing Bishop, Neuvsr, and English, refused to invalidate a county
wide election on the ground that residents of the city of Jefferson
had voted in it. The city was incorporated, and it had enacted an
ordinance prohibiting livestock from running at large within its
corporate limits.

     The Neuvar, Bishop, English, and Lock cases stand for the
proposition that the state stock laws may be given effect within the
iimits of a city.     To the extent that they reach a different
conclusion, moreover, Reuter and Cowand are clearly distinguishable
from the case at hand. In those two cases, the court emphasized that
the legislature had specifically given the city of Dallas the
exclusive power to regulate livestock within its corporate limits. It
held, in effect, that since the legislature clearly intended the city
of Dallas to have complete authority in this area, it must not have
intended the general state livestock laws to be given effect within
the Dallas city limits. The city of Houston, however, is on a
different footing. Although it has exclusive jurisdiction over its




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Honorable Mike Driscoll - Page 5    (MW-588)




streets and public grounds, article 1175, section 16, V.T.C.S.,
neither article 1175 nor any other law or legislatively granted city
charter provision about which we are aware confers upon the city the
exclusive power to regulate livestock within its corporate limits.
Since this is true, we have no basis upon which to reach the
conclusion to which the courts in Reuter and Cowand came, namely, that
since a specific law gave the city of Dallas sole authority to
regulate livestock, the general stock laws which could be voted into
effect in Dallas County could not be given effect within the Dallas
city limits.

     Since the wording of the relevant provisions of chapter 143 of
the Agriculture Code does not suggest that those provisions cannot be
voted into effect within the corporate limits of a home rule city --
even one with charter provisions and ordinances authorizing it to
regulate livestock -- and since there is no evidence of legislative
intent to give the city of Houston exclusive authority to regulate
livestock, we conclude that if subchapters B and D of chapter 143 have
been voted into effect in the city of Houston, then they confer upon
the sheriff of Harris County the same duties within the corporate
limits of the city ss he has outside of said limits.

     The remaining question concerns section 142.003. As we have
noted, the applicability of this section is not dependent upon an
election. It provides in part:

             (a) A person who discovers an estray on that
          person's property or on public property shall
          report the presence of the animal to the sheriff
          of   the   county  in   which   the  animal   is
          discovered....

             (b) After receiving a report under Subsection
          (a) of this section, the sheriff or the sheriff's
          designee shall impound the animal and hold it for
          disposition as provided by this chapter.

     Just as we find no evidence that the provisions of chapter 143
cannot be voted into effect in home rule cities, we find no indication
that section 142.003 was not intended to apply within the corporate
limits of such cities. We therefore conclude that the duty imposed
upon the sheriff by this statute exists both within and outside of the
corporate limits of the city of Houston.

                             SUMMARY

             Section 142.003 of the Agriculture Code is
          applicable within the corporate limits of the city
          of Houston. Sections 143.031 and 143.080 are also
          applicable within said limits if subchapters B and




                                   p. 2186
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Honorable Mike Driscoll - Page 6       (MW-588)




          D of chapter 143 of the Agriculture Code have been
          voted into effect within the corporate limits of
          the city.

                                         wa

                                                     WHITE
                                           Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
George Gray
Jim Moellinger




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