            OFFICE   OF THE ATTORNEY GENERAL             OF TEXAS
                               AUSTIN
GRO”ERSELLER*
ATTORNEY GENERAL



Honorable Claude A. Williams
Chairman end Executive Director
Texas Unemployment Compensation
Austin, Texas~
Dear Sir:                   Re:   Opinion No.
                                  Were service                 ed on turpen-
                                  tine farm e                      employment
                                  compensatio                  d?L
                                                                 r atea
                                  questions.
               We have your letter                 .L.
as   r0u0w8:




       lations and
       the Cammiss
                                          labor'    lnolaaes     all

                                       on a farm in oonneo-
                                       of thesc~l,     the har-
                                   e raising,   :f,eeding oti.
                            estoak, bees, and poultry;       or
                                             etloy$th     the
                                            iala;.'   ioh were
                        farm, also the paoklng, paokaging,
       transp~orting,   or.marketlng  of those materials
       or artlole.8.    Such servioes do not oonstituta
       tagrloultural    labor',  however, unless they are                       -:.
Honorable   Claude A. Wllllams,   Page 2


     performed by an employee of t&a 6wner OP tenant
     of the farm on whloh the materials ln their raw
     or natural state were produoed, and unless snoh
     prooessing,  paoklng, paokaglng, transporting,  or
     marketing-is  carried on as an inoident to ordiaarg
     farming operations as distinguished   tram manufao-
     turing or commercial operations.
           ‘As used herein the term ‘farm’ smbraoea the
     farm In the oralnarlly   aooepted sense, and inoludes
     stock, dairy, poultry,. fruit and truck farms, plant-
     ations,  renahe ,ranges, end oroharas.   The term
     ‘farm* does not embraoe lumbering and roredtrp In-
     dustry ror the purpose of thie Act.”
           *On Ju4 2~. 19
     above r6gulatian  anii                                       .,.
     lathn   25;,
     Regulation   C&
           ‘The term *agrloultural      labor’ includes all
     services pertormed
                                  .    _’
            (1) By an ~employee, on a E~ZIIL,in ‘~ooIqe0tl.o~
     nith l&e. oultlvatlon     or the so&l& the harree@
     of orops, or.th$ raieing,      $eeaihg;:tar managemn“&
     or llyeetqok,   .,bees i and poultqt    @r
           (2) By an 5mploy5e in ootieotion       ritli the
     prooeesIng of ag%lolen from mat5rial.n which rclre,~
     prodaoed ti h 3arm, al50 the paoking,
     trana ortlng,    or marketing of thee5 m r”erlals
                                                   --       or,
     art10 Pas.   Sri&: servl~elr~do not oonatitute     *agrLii
     oulteal    $abor’,.however,    anlear theyz~5     p5.r~
     formed by, an 5mplo~55 of the owner OT tenant of
     the farmxui whlah ,thexia~allhl.s     in thdr raw or
     natural~etate    were podtied;     and ~151~s suoh pro-
     oeselng, pasklng, paokaging, trans orting,         q,~
     marketing Is carriedQIIas e.nin01 xent to Or86narY
     iarmIng opesatlons as dlstlngulshed       rrom nanufao-
     turlng or oommerolal operations*
           “As used herein the term ‘farm’ embraass the
     farm In the ordinarily, aooepted sense, and Innlades
     stook, dairy, ponltrp,  rrult and truck farms,
                                                                     .,




Honorable    Clahde A. Williams,    page 3


      lantatlons,  ranohes, ranges, and orohards.
     !&Ie term *farm* dors net embraoa Jqmberlng and
     rorestrp industry for the purpose of this Aot.t
     Regulation    25
             'Agricultural Packing and Marketing Assoola-
     tlons    Sec. 19 (g1 (6) (D)
            ,The iaot t&t an lndlvldual        is engaged ln
     handling farm proauots does not or ltselr          make the
     services performed for him fagrloulturalt.            Ser-
     does are often perrormea by employees in oon-
     nectlon with the paoklng, processing,         packaging,
     transporting     or marketing for sale to oonsumers
     or farm products whloh are~not a part of oralnary
     farmlag operations but a:part o$: aomierolal~.tm.
     manitfaottiring   operations.     ~*ma&~s~h~-ser~le*r ~'
     are pertorpsd bye inbltld~ls~.~o'~ara:~~~~lo         Hi,:b$‘:
     sn ae~oolation~cir    ~prodaoclra,~-ef~,thB~~.:t   3;a"'
     produots in ~oonneotlonwith.whloh         the seroloee
     are perrormed were produoed by the members ,of
     suoh aeaooiatlon,      the aerrloea of sooh employees
     are not exempt as agrioultural        labor, since the
     indlrlduale     are employers ,of the assoolatlon        and
     not of a-partloular,     produo5ti.t
                                   ..
          *Gn Ihatlarr1, 194Dphc4 Gommlt~elon  rwoiuded
     Reg&tlon   Z?&aad Regalatlok 25, abqljte. Thor6 ha8
     been no~Gommlsaion Regulation 011thle subjsot~ nlnoo
     the last mentioned-date.
           lDpa.the anaotment oi the Unamploflasnt Gompen-
     satlon Aot this Commlsslon began oolleotlng,taxes
     iron the &gate       Haml Storea, Ino.   Its oontinued
     to oolloot   unemploymssat taxes rrom the named-employer
     until Sanuary 1; ~1940, when 10 relieved    the employer
     of liability   begiunlng January 1, 1940, in aooord-
     anoe with Its deoislon dated Maroh 19, 1940, tihloh
     read8 in part:

            *It la therein stated that *The Wieergata Naval
     Stores, Inoorporated,     .operated what le~oanmonlp
     called    a turpentine farm near Wlergate, ln Newton
     County Texas.       The operation of a turpentine oamp
     consists    or the making, ~gathering and stilling   ‘Or
     crude gum into gum splrlts      Andyresin.   This opera-
     tion is accomplished by chipping a live pine tree
                                                                    _’

                                                                         ,~.’




Eonornble   Claude Ai UIlllams,,   Page &


     a ndp qlo lngth e r ioa no upinto
                                   . wh l.o     a rhude
                                                      gum
     Is oollsoted. ‘, Xh%s 5mtl5 ~gti 1s psrlodlo5lly
     gathered and transported    to the anmp st$ll
     where same la pzooessed into the gum spirits       01
     turpentine and resin.     The orude gum is ordinarily
     harvested or oollected    during eight or nlne,montha
     of each calendar year.     The persons performing the
     serrloe abovementioned are unskilled      laborers who
     work urider the supervision    oi a. foreman.”
            Wpon the basis of the lnformatlon presented,
     it   is the opInlon or this Commlsslon bnd it hereby
     rules   that services perrormed for you, of the kind
     specified   above are servloes which oome within the
     exoeptlon afrorded agrioultural   1,abor




             ll.  Under the T5xas Vn5m loyDient Ofimpensatlon
    Act and the Beg&t&O85 .-lea       8ed,‘~ w5$5 end a~ the
    serrioee     perio2meQ for the &inplQytir ag210tit~lr~5
    labor and st5mpt?
          *2., If, suoh servioes bid    oonati$utta agrloal-
     ture labor prior to January 1,     1940, my        a   *sfti.na
     of contributions  pa14 be mad5    as to?   .,(a]       t+xes
     due after ADrIl 1. 19397, (b)      taxes   au0     .prSorto
     April 1, 191397 - ---

          "3.  In the event that a refund wexe due tier-
     gate Naval Stores, Inoorporatcd,  for taxes pald
                                          .
                                                   .




       Honorable   G1auds.A. WIlllams,    Page 5


             thi8. Commission whloh mire due prior    to April 1,
             1938, exoept ior’ the taot that Section 8 of the
             Unemployment Compenaatlon Aot , Ar tl 01s 5221b-6,
             Vernon’s Revised Civil Statutes.    zrerented suoh
             r~efund, would an act of the legisiature    .makIng
             appropriation   or the amount or euoh refund and
             authorizing   payment to the employer be valid?

                  *4.  1l Question No, 3 is answered ‘yes’
             how would such payment be aooompllshed and out
             or what fund would it be paid?”
                  Article    5221b, Revised Civil Statutes   of Texas,
       provides that servfoes performed for wages under oer.taln
       oiromastqoee     constitute   employment. under the Texas Dnem-
       ployment Gcapensatlon Ant                                                            .,.
       to the GosmiIleIoxi thst.;thep                                                ~.:
       tloha iiom ~fhd A&.~ Among                                                ~~ ,~~;;   .:
       5221b Ie IJeotl~on 17 (g,)~:(5)
                 In view of this exemption the Commlsslon aotlng
       under the authority of Article 5221b, Seotlon 9, enacted
       the quoted regulations.
                  The regulation   dIaolosae that   tie Ga&esloa        In-
       tdndsd to llmlt the~tapa:.ragrloultorar.labQr”       to that .&?&ox
       pertormed on a farti,‘fia defined br~,ther;    Xa all~,Inrrtanore    it
       is held that the term *farmu Is to be uudrretood. Ix Its or-
       dinarr and. fo pular 8anae and that iz$‘~a         traot o$ laud
       tissd tar ra aleg oroplr~ an& reari                804 ,Gkwdon-Y.
       Buster, 257 8: W. 2201 ll3 %!a, ,3  3 2) 16 Wo;de & Phrasds,
       page 248.
                   The 8tat;es:::: of Golorado and Gounsotlout have adopted
       regulations   wlth ~substantlally    the sams wording as themrsgu-
       latlons of the Texas Unemployment Compensation %amleslon
       regaralng agrioultural      X.:abor* %:a  suit for the oolleatlo~
       of taxes assessed against q oonoern       operating mushroom sheds,
       styled Great Western EushroomGompany V. hIustr$al          Gommlaslon,
       82 Pao~; (26) 751, theSupreme~ .Gourt of Colorado said:
                  “We~oannot  think ,the promulgated regulation
             is other than~ln keeping wlth ~the clear intent ai
             the enactment .v




__-.
Konorable    Claude A, WUllama,         Page 6


           The oourt further disowaad   the tact that the opera-.
tions in question ware oarrled out throughout moqt 0r ths peer,                             :
a&the    parposs In the axamptlon of agrloultural     labor was
that it was seasonal work thus It should not be contended that
the Legislature  intended to exempt this type of anployment.
The court held that this was not agrloultural     labor as defined
by the Commission.
              In the oase of Park Floral Company V. Industrial
Commission, 91 Pao. 492, In the Supreme Court of Colorado,
the demand was made upon a floral           oompany for payment of taxes.
The company contended that this operation was within the exsmp-
tion of agrloultural        labor and further that the promulgation
of the Commission ruling constituted           an arbitrary      attempt by
the Commission to restrlot          and limit the ordinary meaning of
the term *ag.rloultural        labox”.    The eorurt .thsrs said that this
objeotlon.~Is    roreoloerd     by the reoent     zonounocupent      @f that::..~      ,.
cow-t   l.q the oam of: (Priat We&em         Mm, %I ,q,oq Qomg.ang,:*i     ..~.
                                                                         ~Q.U~    ~.~,
trial Ccmmlasl~,‘~su~ra~ ~~l%eooart in thl~~,ins anob:altWhdld
   that the’ dalegatlon’of        the autherlty to enaot r’uies and regu;
latlons was not an Invalid delegation            of legislative        authority.
            In the dase or Ii Duys 6c Co           et al V. Tone,
5 Atl.  (26) ,23, the Supmu& Court o? &%%O~t          held that
the regulation   of the ConmIssion of Connedflout to~be valid,
and that it did not riolats   ths aqua2 protestion    or due pro-
oem olausas or the Ganstltutlon.'Bte.ooart       ti thXs opinlmi
redswed the definition    or *iarm laborer* and *agr$oulture*.
           Aoting wider the s=e rule msklng p~wsr as lt 'pro-
vided ,in the Colorado Unemployment .Watate, the Tsxai Comais-
slon enaoted the mme regulation   as that of Colorado,
            Your regulations   or Deosmber 5, 1936, and July 2,
1937, stated ihat they lntsndsd the teSln wfarma to ambraoe,
end undpr this dethltlti      the turpsntlhe industry    would not
be *agrIoultural   labor*.    The power or the Texas Commlsslan
to ennaot their regulations-Is    awtained    by the Ii. Duys k Corn-
pany .snd Park Floral aaees, supra.      However, the aotlcm of the
CommIsalon an Maroh 19, 19J,O,    In reaoinding its rsgulatlon,
refleots   a ohangs In their attitude.      They must hare Intended
that the term should have the broadest meaning in liner with
the modern trend.
           You have furnished          a photostatlo    oopy of the find-
ings oi raot and oonoluslons           of law of the Distriot’ Court
of the United Statas for the           Middle Distriot    of Georgia in
the oase’of Gso. I. Shelton,           et al, plaintiffs,    VS. Marion
H. Allen.
Honorable   Claude A. Wllllame,   Page 7


           The applloant oites the ruling or the oourt as a
basis for the olaimed exemptioni    But, let it be reoogulzed
that the Statutes of Texaa.oontain   no auoh exemption as that
of Title 12, Section IlAlj,   U. S. C. A. Further, this oaae
was disposed of on prooedural grounds without passing on the
merl ts.
           In the oasa of United States Y. Turner Turpentine
Company in 111 Fedi (26) IJM, an opinion of the Clroult Court
of Appeals for the Fifth Clroult,   holds that the producers of
crude gum are engaged in agrioultural    labor.   We call your at-
tention to ths raot that this deolslon is influenced,       if not
based upon the fact that Ceorgla in 1939 had enaoted a stat-
ute providing that all orlglnsl   produoars of crude gum and
their employsas ware depaarad to be farmsrs’lnso       $ar as any
statutes or the Stats, ralata& : Ho euoh*~:s’tattita ox%&, or he
ever been on $ha~~statuttc ~QQ of Tsxal;‘.,i T@at~ aorfff .~s.f’ur.~~~~, ,~
ther lnfluenaad bl the Wdera T Statuta,‘.on tki’ib stibfhti~
           The dtstlnotion between farming and that of out&g
and logging timber was reo,ognlzed by the Supreme Court of
Tennessee In the oaee of Robinson V. Stacklay,  61 S. W. (Za)
677.

           In the aasi Pratt ,v..Cltyoi,Maaan, 1% a.,&..19lj >
the Uourt of Ap,psals~ of Claorgia wasp,oonstruing a mtinla2pal. .~
ordinsnae ‘,ot thr cltr or Yaeon, tilsh-r.aqulred   that mar&ants :
or ‘others outside. the blty limits delir6rlng ~gooda la the
City to take out a dray lloonsd fur eaoh w&g& used in the
delivery.   The facts   ln that oase were that %he lndlrldual     Sn
question was a farm& ln ,that ha raised ‘truok. ohlakens and
ducks on his farm. Also on said rarm was a m’     1nara.?. water well
from whloh the individual    took the mineral water and delivered
and aold, same ,wlthln the oity~ llmlts~ of ihe City of Maoon.
The court concluded that suoh license would have to be begtired
under tha‘taota~ and stated as rollowst

             ‘1.  That said mineral water wa:s not a farm
       product withln tha.meanl.ng ,of seotlon 1851 of the
       Civil Code of 1910 and that. the requirement of
       said ordlnanee as TV   o taking out a lioense zas ap-
       plloable  to plaintiff     In error.
             “2.  That the ract that plaintlfr in error
       drew and bottled sa,id wster from a well located
       on his own land, and that he was also engaged In
       raising truck, chickens, and ducks, whioh were
                                                                            .




Honorable    Claude A., ~llllama,    Page 8


       also delivered   by means of, said truok, dld not
      -relieve  him from procuring the ‘dray’ or ooou-
       patlon lloansa as required by said ordlnanoa.*
            In the case of Great Western Mushroom Company vs.
Industrial   Comm., 82 Pao. (26) 751, the Supreme Court of
Colorado 5.n construing a similar statute said that the Lagis-
lature sought only to exempt seasonal labor suoh as farm
labor.    This applloant,  by its own admission, opar.ates nine
or ten months a year, and there is no showing that some work
is not done throughout the tmlve months of aaoh year.       Can
it than be said that Is only seasonal labor as defined by
the Commission1 a regulations?
             The statutory authority ror the regulations           of
~Deo, 5, 1936,. and’fuly2, 1937, is          asant sties.Artlola   522&b-9( a) .,,
The oonstltutlonaUty.~    of .rubstan$l ar l$tha   s+nw ~egtilatl&ik .:
haa besn uphbld. by the. Suprama36urt       .af Ooldr~$ulo~  In. park
Floral Co, v. Industrial      Uomm.~,91 Pa@. (26) 492, and by the
yp;;;t.Court      or Conneotlout in the oasa~of H. Duys & Company
 .        , 5 Atl. (2d) 23.
          The authorities   cited, together with that of Great
Western Hushroom Company,Y. Industrial    Cokmlsslon, supra, give
ample support for the regulation   and determination  of your
Co~111&3slonprior to iknuary Jr 1940.
          The’oourts in the Park IQoraLand  H. Duys & Company
oases, aupra, 5ay that by the evolutionary prooassse attend-
ant upon our present day buaiuara methods many aotlvitles
formerly ambraoad in tarmlng hava beoome spealalleod    or ra-
moved rrom the iarm.
             Your rlrat   question   asksr
           Wndar the Texas Unsmploymant Compensation
      Aat and the Regulat-lons lndlahtad, were and a.0
      the sarvloas performed for the employer agrloul-
      ture labor and exempt?”
           It la oar opinion that the dotermination    of llabl-
llty by the Commlsslon upon the taxes aoorulng prior to Jan-
uary 1, 19&O, was supported by the resolutions    quoted.    That
being true, there can be no refund.   Therefore,   it is unneoes-
asry to answer your questions 2, 3 and J, regarding refunds.
                                                             ,.%       .;;
                                                                   3         ‘~   .‘.
..-




      Honorable   Claude. A. Wllllams,    Page 9


                 A part     03 four rirst     question ia an inquiry 0r the
      present llab5.l.lty    .ot .,the Wlargata ,Haval Stoma. ror unatnplog-
      ment taxesa
                  There being no prrsant regulation     darlnlng ‘agrim
      aultural  labors*,   we must determine    the soopa of that term.
      The Commlaslon plaoes no llraltatlon      on the term.    In answar-
      Lng the queatlon of liability     prior to January 1, 1940, we
      reoognlzad the llmltatlon     you plaosd on the term *agrloul-
      tural laboP.by     the Commlaslon~a regulations     spaolfylng   ser-
      vloea on a farm.’ The word l    agrloulture*   has a broader mean-
      ing than farming, In Ra Rodgers, 279 9. W. 800. Lowe Y. North
      Dakota Workmanta Compensation Bureau, 261, W. W. 867.          Vna
      may be employed ln agriculture      and yet not be a farmer ln the
      ordinary sense of the term,     nor even a farm laborer as the
      term is used In .._our lien laws.”
                  Eciwk+a~~ ..lri
      darining ~%gr~,atii&.~~~l
      to that tam ;$hei Mead
      Turner TarpaxitlnB ~aabe, ,supra,
      ourlty Agency.     This, latltade would support the ruling o?
      the Commission of March 19, 1940, as refleotkd          by thd photo-.
      statlo aopy of latter of Orville S. Carpenter, Chairman and
      Eraoutlva Dlraotor , to,, the Wleqgata, Naval Stmes.         ,-We .,do.n@
      say that suoh a rullng.would~ be, coljlpat~lbla with ~opf regula-
      tlons   arraotlva to~iianuarg    ~1, X9&0.   3!&e on   rapogt?d ~baol-:~
      alon balng.in    sup art or the broad&t &tort T0 .oone$!cuotlkm
      or *agricultural    f: aborn,. pou’ara justified    in tbllting       that
      daoisltm when ,it doir ‘not oonillot       with your own ragulatlons~
                                                     ‘Iourp .varp truly
      APPROVED
             MAY 2, 194l                       ATTQRWEY
                                                      GZWEftAL
                                                             OF !iXXAS

      /s/   GRom? -
      FIRST ASSI-,                             BT /a/       Yorrgu~o$~
      ATTOEtNEy (fBM$RAL

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