Mr. L. R. Noyes, Executive   Director                Opinion      No. WW-538
Livestock Sanitary  Commission    of Texas
3320 West Seventh Street                             Re:   Whether    or not, in the en-
Fort Worth 7, Texas                                        forcement    of Section 26,
                                                           Article   152513, Vernon’s
                                                           Penal Code, the Commis-
                                                           sion is liable for any death
                                                           loss or shrinkage      in weight
                                                           that may occur while live-
                                                           stock are detained for treat-
                                                           ment, tests or vaccination,
Dear   Mr.   Noyes:                                        and related    questions.

         This opinion is written   in response  to your letter of September   9,
1958, and your additional   letter of September    19 in response to my telephone
conversation   with you of September     18.

         The   questions   you have   asked   are   as follows:

               “In the enforcement     of this provision  of the statutes,
         this Commission     would like to have an Opinion, whether it
         would be liable for any death loss or shrinkage       in weight
         that may occur while livestock      are detained for treatment,
         tests or vaccination.

                 “In the event the driver   of the truck, who is not
         usually the owner of the animals,       unloads them and makes
         no arrangements      for feed, water and required    tests, may
         the Sheriff   or any peace officer   of the County in which the
         livestock   are intercepted   impound and levy a lien for the
         purpose of securing      payment of expenses    and costs of
         handling the animals ?

                “We should also like to know if the Sheriff    or Const,a-
         ble of the County in which the livestock   are apprehended
         may impound the animals    and levy a lien to cover fines and
         court costs that may be assessed    for the violation   of our
         requirements.”
Mr.   L. R. Noyes,      page    2.   (WW-538)




        Since all of these questions   pertain to interstate   shipments    under
Section 26 of Article  1525b, Vernon’s    Penal Code, this Section will be
quoted in full and your questions    answered   in their respective   order.

                  “Quarantine        of foreign   shipments   in violation   of act

                    “Sec. 26. Whenever         any live stock, canines,      or fowls
           are moved or permitted           to move into the State of Texas in
           violation    of any quarantine      established    under any provision
           of this Act or of any other Live Stock Sanitary              Law or in
           violation    of any provisions      of this Act or of any Live Stock
           Sanitary     Law or ar~e moved from any place in the State of
           Texas in violation        of any quarantine     established    under this
           Act, it shall be the duty of the Live Stock Sanitary              Commis-
           sion to quarantine        said live stock, canines or fowls wherever
           found and enforce        said quarantine     until said live stock have
           been properly       treated    or vaccinated    or tested, dipped or
           otherwise      disposed     of as may be provided       for in the rules
           and regulations       of the Live Stock Sanitary        Commission.
           The provisions        of this Section shall apply to all live stock,
           canines and fowls and to all diseases            mentioned     in this Act,
           including     also scabies     among cattle, sheep and goats.”

           In regard to your first question concerning      the liability  of the Com-
mission      for death loss or shrinkage    in weight of livestock    while they are
detained      for tests or vaccination,  the answer is as follows:

          Since the operations    of the Articles   coming under Chapter 14 of
Vernon’s     Penal Code come under the police power of the State, there would
be no liability   on the part of the State for losses      of livestock   or losses   of
weight of livestock    which are held under authority        and in pursuance     of these
statutes.    Armstrong   v. Whitten,     D.C. 41 Fed.2d 241, (1930). Of course,
there would be no personal      liability   on the part of the Commissioners         so
long as they were acting within the* authority        of this act.    Choate v. Renfro,
126 S.W 2d 718, (Civ.App.,     1939).

          In answer to your second question it is our opinion that whether       the
livestock   may be impounded     and a lien levied for the purpose   of securing
payment     of expenses and costs of handling,    depends on the type of animal
and the type of disease   involved.

           Article  1525c, dealing       with cattle, horses,   mules, jacks and jennies
infested    with disease-bearing         ticks, is very explicit  in its mandates  and
Mr.   L. R. Noyes,   page   3.   (WW-538)



provides    that it is the duty of the county to furnish the vats for dipping,
and also that the dipping material           is to be furnished   by the State.    It
also provides      in Section 13 that the owner or caretaker         is liable for all
expenses     of bringing    the cattle or other animals      to and from the dipping
vats.   Section 15 provides       that if the owner refuses     to bring the animals
to the county dipping vats, the State may go in and dip the cattle itself
and charge the owner $2.00 a head which is secured                by lien fixed on the
cattle and which lien also attaches for additional            expenses~ of hauling,
feeding and watering        the stock while in possession       of the State for dip-
ping.   Parker    v. Miller,    118 S.W.2d 380 (Civ.App.,      1938), a case coming
under this section,      held that it would be proper for a sheriff         to keep
animals    in his possession       for satisfaction   of the debt secured by the lien
which arises     under this article.

          Under Article   1525a concerning     cattle, sheep and goats infected
with scabies,    Section 2 provides    that the Commission      can direct the party
controlling   the animals   or the owner to have them dipped and can punish
for failure   on the part of the owner or caretaker       to dip. Section 18 states
that if the owner refuses     to dip, it is the duty of the County Commissioners’
Court to have the animal dipped at the expense          of the county.   Here it would
seem that the only recourse       of the county   to recover   expenses   for feed and
water would be through the instigation        of a suit for the fine for failure   to
dip and the other expenses      involved,

          There are other provisions        dealing with a varieiy     of diseases    such
as glander,     bangs disease,    hoof and mouth, and cholera,      which do not mention
the costs of handling and feeding.         Since the general   provisions     of Section 12
of Article    1525a, state that it is the duty of the owner or caretaker          to gather
the animals     for inspection,    and since the Legislature,    in House Bill 133,
Acts of the 55th Legislature,        1957, Regular    Session, Chapter     395 (General
Appropriations),      has made no provision       for handling costs and feeding ex-
penses,    it is our opinion that the owner or caretaker        would have to provide
for these expenditures       since the Commission      would be unauthorized       to make
these disbursements.

        The answer     to your third question,     concerning   the right of the Com-
mission  to impound     animals    and to levy a lien to cover any fines and court
costs, will likewise    depend upon the particular      type of livestock  involved.
The only Act which     provides    a clear answer is found in Section 25, Article
1525b, which states    as follows:

                “County attorney    to institute   civil   actions   against
                non-residents   for fines



                                                                          ,
Mr.   L. R. Noyes,     page 4.    (WW-538)




                  “Sec. 25. Whenever        any person who is a non-resident
           of the State of Tekas violates       any penal provisions       of this
           Act and is absent from the State at the time of the said vio-
           lation or whenever      any foreign    coryoration     which ~does not
           have a permit under the law to do business             in the State of
           Texas violates     any provision     of this Act it shall be the duty
           of the County Attorney      in any and all counties in the State
           of Texas wherein      said violation    occurs to institute     a civil
           suit against said non-resident        person or foreign      corporation
           for the collection    of the fine provided      in said penal clause,
           and to run an attachment       upon any property        which said non-
           resident   person or foreign      corporation     may at any time
           have in the State of Texas and after final judgment to have
            said attached property     sold under execution,        for the purpose
           of paying said fine and cost of suit.         . . .I’ (Emphasis     added).

          Under Article    1525c, no such authority     exists for bringing      a suit to
recover     fines and costs of suit against a person       although Section 28 does
provide    that a civil suit might be maintained      against a corporation        by the
County Attorney      for recovery   of fines imposed     for violation    of Article
1525~. Since this Section refers       to corporations     broadly,    it seems that
it applies both to foreign     as well as domestic     corporations.

         There are no other provisions      dealing with animals  infected   with
contagious   diseases  granting   the county or other State agencies    involved
the right to attach livestock   for payment of fines and court costs, there-
fore, it is our opinion that no such right exists.

                                        SUMMARY

           The Livestock    Sanitary   Commission      would not be liable for
           death loss or shrinkage      in weight that may occur while live-
           stock are detained for treatment,       testing or vaccination.
           Under Section 26, Article      1525b, Vernon’s    Penal Code,
           whether   or not the C oromission     will be able to-hnpound   the
           animals   and acquire   a lien for handling their feed costs or
           for the recovery   of the fines and court costs, will depend on
           the type of animal and the type of disease       involved.

                                                  Sincerely,




MD:ci:ls

                                                         Assistant           -
                   .
.   -




    Mr.   L. R. Noyes,   page   5.   (WW-538)




    APPROVED:

    OPINION   COMMITTEE
    Geo. P. Blackburn, Chairman

    Marietta Payne
    Cecil C. Cammack,     Jr.
    Morgan Nesbitt
    Riley Eugene Fletcher

    REVIEWED    FOR THE         ATTORNEY        GENERAL
    BY:  W. V. Geppert
