              THEAITORNEXGENERAL
                              OPT-EXAS
                              ALXWI-EG-


                       September        4,   1948


Hon. D. A. Davidson,          Dlrec tor
Live Stock Sanitary          Commission
Fort Worth, Texas

                             Opinion     No. V-676.

                             Re:   The validity    of Article
                                   1525b, Section    6, Vernon’s
                                   Penal Code, authorlz lng
                                   the issuance    of search var-
                                   rants to peace officers       ac-
                                   companying veterinarians
                                   employed by the Live Stock
                                   Sanitary    Commission in ad-
                                   ministering    the provisions
                                   of the statute D

sear   Sir:

            You have inquired      as to the validity   of Arti-
cle 1525b, Section      6, Vernon’s   Penal Code, which pro-
vides authority     for obtaining    a search warrant by a
peace officer     when he shall accompany a veterinarian
employed by the LLve Stock Sanitary         Commission in the
performance    of’ sny duty authorized     under said statute.
That statute    provides     that in the event a search war-
rant is obtained      under that section,    such search war-
rant shall    authorize    entry and reentry    for a period
of thirty   days after    ‘its issuance.

              We set   out    Section        6 of Article   1525b,   V.P.C.,
as follows:

               “The Chief Veterinarian       of the Live
       Stock Sanitary      Commission and all other
       veterinarians      employed by said Commission,
       including     members of said Commission,       are
       hereby authorized       to enter any public     or
       prlvate    property    for t’ne exercise    of any
       authority      or performance   of any duty au-
       thorized     under this Act.       If said per-
       :~n desire3      33 be accompanied     by s peace
       zfflcer     the 3a:d person may sopiy       t3 any
Hon. D. A.    bvidson,         Page 2,       V-676.



     meglstrate        in the County vhereln                said
     property       Is located        for the laauance OS
     a search varrant,            and it shall          be the
     duty of the said magistrate                  to issue
     the same, but no search warrant shall
     Issue vithout          describing       as near as may
     be the premise or other place                    to be en-
     tered;      nor without probable             cause,       sup-
     ported by oath or affirmation.                       It shall
     not be necessary           to describe         said prem-
     ises or place by field               notes or metes
     and bounds,         or other measures,             but it
     will be sufficient             if the search war-
     rant contains          such reasonable           descrlp-
      tion as vi11 enable the owner or care-
     taker of said property               to know just
     vhat property          is referred        to therein.
     When said search warrant 1s issued it
     will authorize           the person to vhom it
      is issued       to be accompanied           by peace
      officers,       and said search werrant ~111
     authorize        the person to whom it is is-
      sued to be also accompanied                 by as many
      helpers      and assistants         as he may deem
      necessary       for the performance             of said
      duty or the exercise              of said authority.
     Any person,         firm,     or corporation           who
      shall     refuse     to permit any person to
      whom sald search warrant is Issued to
      make said entry or to perform any duty
      or exercise        any authority         designated          In
      said search warrant under authority                        of
      this Act,       or who shall refuse              to permit
      any peace gfflcer            or any helper           or any
      assistant       to said person to vhom said
      search warrant is issued to make said
      entry or to exercise              any authority           or
      perform any duty designated                  in said
      search warrant under authority                     of this
      Act shall       be fined not less than Twenty-
       five nor more than One Hundred Dollars.
      Each separate          day upon vhich said refus-
      al Is made during the thirty                   days next
       succeeding       the date of the issuance                 of
       said search warrant shall                constitute         a
       separate      offense.        Said search varrant
       shall     permit the entry and re-entry                   and
       the performance          of said duties and exer-
       cise    of said authority           continuously          for
Hon. D. A. Davidson,        Page 3,     V-676,



       a ~rlocl     of thirty   days lftmr       Its    is-
       suence, and additional     search Varrants
       may be issued   thereafter    under the pro-
       visions  of this Act as often as may be

       ~otl~el~e~~~~                      K%%Et
       ar lans,    inspectors     or members of said
       Commission to secure         said search war-
       rants,    unless    they are to be accompanied
       by peace officers,         but they are hereby
       authorized      to make entries     upon private
       and public      lands for the performance         of
       any duties      autborlted    under this Act.
       Search warrants may also be issued             to
        Inspectors     of the Live Stock Sanitary
       Commission engaged in the eradication
        of scabies     among sheep, goats,      and cat-
        tle,  vhenever     said Inspectors     are to be
       accompanied       by peace officers     in the per-
        formance of any duties         in connection     with
        said work.”       (Em has18 supplied      through-
        out this opinion P

           The right     of the people of Texas to be se-
cure In their    persons,    houses,  papers and possessions
against  unreasonable      searches  and seizures is guar-
anteed to them by the Fourth Amendment to the Constl-
tution  of the United States and by Article       1, 3 g,of
the Constitution     of Texas.

              We set out Article       1,   B 9,       of     the Constftu-
tlon    of Texas,   as follows:

               “The people shall be secure        in
        their persons,      houses,   papers and pos-
        sessions,    from all unreasonable       seiz-
        ures and searches;       and no warrant to
        search any place,       or to seize any per-
        son or thing shall       issue without    des-
        cribing    them as near as may be,nor
        without    probable    cau:e,  supported, by
        oath or affirmation.

            The protection afforded   by the Fourth Amend-
 ment of the Constitution  of the United States     is ap-
 plicable only to searches  and seizures   made by the
 United States Government or Its officers     or agencies.
 Hammond Packing Co, v, State,    212 U, S. 522, 29 S.
 Ct. 370, 53 L. Ed. 530; Weeks v, U. S., 232 U. S, 383,
 34 S. Ct. >41, 58 L, Ed.. 652; National    Safe Deposit                      a
Hon. D. A. Dnvldson,       Page 4,   V-676.


v.   Stead,232   U. 3,   58, 34 3. Ct.   209,   58 L.. fd.   504.
            Therefore,     we are confronted    with resolving
                                                             _
the issue of rhether       the search warrant In question,
vhlch   authorizes     entry and reentry     for thlrtr    days
after  Its issuance     contemplates   an unreasonable      search
and seizure   within    the inhibition    of the COnBtitUtiOn
of Texas, Art. 1, 8 9.

             It was the fear of unbridled      and arbitrary
searches    and seizures,   as perpetrated    by colonial     rev-
enue officers     armed vlth Writs of Assistance,       that
prompted the authors      of our Federal    and State Constl-
tutlons    to draft a positive   assurance    that the abuse
occasioned    by the Issuance   of general    search warrants,
vhlch flourished     during the period     of colonial    devel-
opment, should never recur.

           Inherent   In our jurisprudence    1s the prln-
clple enunciated    so clearly   by Lord Chatham and quot-
ed In Rx Parte Gould,.60      Tex. Cr. R. 442, 132 9. W.
364, as follovs:
             “The poorest man may, in his cot-
       tage, bid defiance   to all the forces    of
       the crown.   It may be frail;   Its roof
       may shake; the wind may blov through It;
       the storm map enter;   the rain may enter;
       but the king of England may not enter;
       all his forces -dare not cross    the thresh-
       old   of the ruined tenement.’

            We must, therefore,     carefully   examine Sec-
tion 6 of Article    1525b,V.POC.,    wherein   it provides
for obtaining   a search varrant,      to detennlne    whether
It is reasonable    or unreasonable      In the light of the
authorities   and the statutory     and constitutional      pre-
cepts.

            It must be observed      initially     that Article
1525b, Section    6, V.P.C.,    Is a particular      authority
for a search warrant to be used In connection             with
the administration.    of the duties      of the Live Stock
Sanitary   Commlssion.     Were it not for the passage of
such section,    a search warrant vould have to be ob-
tained under the authority        of Title     6 of the Code of
Criminal Procedure,      vhlch applies      to search varrants
generally   and vould be governed by the provisions             of
Article   517, V.C.C.P.,     which follovs:
Bon,   D. A, Davidson,       Page 5,      V-676.



              "Any peace officer     to wha a search
       warrant is delivered      shall execute    it vlth-
       out delay,    and forthwith    return it to the
       proper magistrate.      It must be executed
       vlthln   three days frcm the time of Its ls-
       suance, and shall     be executed within a
       shorter   period   if so directed    in the var-
       rant   by the magistrate.”
              There is much authority      to the effect     that
under a search warrant        obtained   under a statute     which
authorizes     but one execution,      and therefore   one entry,
reentry    of the premises     at a later date and relnstltu-
tlon of a search under authority          of the original     search
warrant Is illegal,       and renders    the evidence    obtained
thereby lnadmlsslble.        ~Davls v. State,     113 Tex. Cr. R.
421, 21 S. W. (2d        509; Rlppy v. State,      122 Tex:Cr.
                      1 2d) 619; Coburn v. State,      78 Okla.
~~.1E>Z,si4jj.p.         (2d) 483; State v. Moran 103 W.
            138 9. E. 366; "Search and Selzureh         by Corn-
ellus,'&d      Rd., Section    224, page 530.

             We are,    however,   confronted   in this Instance
with   a statute    authorizing    entry and reentry     for a per-
icd of thirty     days under a search varrant,         which is to
be used only in connection         with the administration       and
enforcement     of duties     Imposed In the Act designed       to
provide   safeguards     and controls     over diseased    live stock
and domestic     fovls.     It becomes pertinent      to examine
that statute     to observe     what are the duties     and the au-
thority   with which the peace officer         will be associated,
as this will cast light         on the “reasonableness”       of the
search under such search warrant.

              Section    1 of Article       1525b, V.P.C.,        Indicates
that the Live Stock Sanitary             Commission shall         “protect
all cattle,     horses,     mules, asses,       sheep, goats,       hogs,
and other live       stocks    and all domestic animals and domes-
tic fovls     of this State from infection,               contagion    or ex-
psure to the infectious,            contagious     and communicable dl-
seases enumerated In this Section,                to-vlt:      Tuberculosis,
anthrax,    .glanders,     Infectious      abortion,      hemorrhagic      septi-
cemia, hog cholera,         malta fever,       foot and mouth disease,
rabies and other similar           and dissimilar         contagious     and
infectious     diseases     of live     stock recognized        by veteri-
nary profession        as infectious       or contagious;       also rabies
among canines)       and Sacillary       White Dlarrhea among fowls
 , > * It shall      be the duty of the Commission.                D ~ to
Pen.    D. A. Davidson,        Page 6,    V-676.



establlrh   auarantiner  vithln          the Stat4 OS Tex8s on
cattle,   hor8e8, mules, asses;           sheep, goats, hog8 and
other    live    Stock,   domestic    animals      and domestic      fovls,
also    counties,     districts,     areaa,     premlaes,
                                                        lands,pas-
ture9,    lot9,   ranches,   fang,  flelde,     ranges,    thorough-
fares,    buildings,    barna, stables,     stock yards, pens
and other placeswhenever       said Commission ascertains
that any of said dlsetIses      or the agency of transmis-
sion thereof  exist    in any of sold places    or among any
of said live  stock,    domestic animals or domestic      fowls,
or that any of aald places,        live 9tock, domestic   anl-
mals, or domestic    fowls are exposed to any of said
diseases  or to the germs fir agency of transmlsalon         of
any of said diseases.      . .

                Section    2 of the statute        provides,      In part:

               "Whenever it is determined         by Veter-
        inarians    in the employ of the Live Stock
        Sanitary    Commlsslon that any contagious,
        lnfectlou9,     or communicable disease         exists
        among any live      stock or domestic       animals
        or domestic     fovls,    In the State of Texas,
        or on any land or premises          or other places,
        or that any live stock,          domestic   animals
        or domestic     fowls,    premises   or other places
        have been exposed or are exposed to the
        agency of transmission          of any infectious,
        contagious     or communicable disease,         such
        exposure     or infection     shall be considered
        as contlnuln       until   the Live Stock Sanitary
        Commds               eradicated    the same through
         its prescribed      methods under authority         of
         lav and of the rules and regulations             zf the
        Live Stock Sanitary        Commission.     . . O

             Section    3 of the statute           provides    for the ea-
 tabllshment    of quarantines         to prevent      the spread of anl-
 ma1 diseases,     and Section       4 provides,       in part,    that any
 person who shall      "ship,     drive,    drift,     le$d,   haul,truck,
 carry or In any manner move or transport                    any animals
 from any "county,      district,       area,    premises,     pasture,lot,
 pen, yard,    stock   yard,    field,     barn,    stable,    building,
 enclosure,    or other place which Is under quarantine
 shall be guilty      of a misdemeanor.

           Section   5 provides     for the further   establlsh-
 ment of quarantines    prohibiting     the movement of animals
 which are disease   carriers,     and provides   that anyone
Hon.   D. A. Davidson,      Page I,        V-676.



violating    8uch section      shall    be guilty         of a misdemeanor.

             Section   9 provides   for the obtainment     of a
health   certificate    from a veterinarian     recognized   by
the Live Stock Sanitary Commlsslon          for any of the anl-
mals covered by the statute       which are moved into Texas,
and provides      that anyone violating     such section   shall
be guilty     of a misdemeanor.

             Section  11 provides  that cattle     moved into
Texas,  except range or stocker     cattle,    or cattle  shlp-
ped for Immediate slaughter,      shall   be accompanied    by
a tuberculin     test chart,   and provides    that anyone vlo-
latlng  such section    shall be guilty     of a misdemeanor.

            Section  12 ‘provides  for the vaccination                    and
dipping   of hous In accordance    ulth spec
and provides    that anyone violating   such section                    shall   .
be guilty   of a misdemeanor.

          Sections  13 and 14
of cattle for tuberculosis,
tle found to have a positive
tine of such cattle  found to have                  tuberculosis,

              Section    14 specifically            provides,       in part:
              n
               0 1 0 Any person,          firm or corporation
       who shall     sell,    trade,     barter,    give away,
       or loan,     or drive,     drift,     ship,    haul,   lead,
       truck,    or in any manner move, before               the
       Live Stock Sanitary Commfssfon has estab-
       lished    a quarantine      on said positive          react-
       ors #  any   of  said   positive      reactors     from   the
       enclosure     wherein they were located              at the
       time they were so tested,             or that shall       so
       move any of said reactors             from the place or
       enclosure     where they are under quarantine                by
       said Commission or that shall               so move any
       cattle    located     In said quarantined          place or
       enclosure     during the existence            of said quar-
       antine without first          securln$      a written     per-
       mit from the said Commission                shall be guilty
        of a misdemeanor.

             Set tion 16 provides    for the regulation   of live
 stock exhibitions,     shows and fairs,    and provides  that any-
 one violating     such section  shali   be guilty  of a misdemeanor,
Hon. D. A. Davidson,        Page 8,      V-676.



             Section     21 provide9     for tlm canulrory        burlal-
dr b&nlng   of the carcasses           of anlm
taglous  or infectious  diseasea,            and provides   that any-
one violating     such    section    shall    be guilty   of a mlsde-
meanor.

          We set out various  provisions  of the Act to
show the multitude  of duties imposed on the Live Stock
Sanitary Commission and its employees,   and the numerous
offenses that may be committed under the statute.

            It 19 a comprehensive     act covering      much of the
field  of live stock and domestic        fovl regulation      and con-
trol.   One need. be but ~sllghtly     familiar    vlth the many
animal diseases,     the control   of vhlch is covered by the
Act, to realize    that such control      requires    continuing
and constant    aupervi#lon   and observation,      and that vlth-
out such supervision      and 4bseWatlon      the enforcement      of
the statute   would be hindered.       The live stock which
have been exposed to disease      may take days before         they
show symptoms of the disease       that may be diagnosed.

              It is provided        In the Constitution      of   Texae,
Art.   16,   3 25, that:

            “The Legislature   may pass laws for
       the regulation   of live stock.  . . .n

             The function,    then, of the peace officer       who
will accompany the veterinarian        in conducting     the search
under the search warrant authorized         by Section    6 of Art-
icle   1525b, V.P.C.,    is that of enforcement,      as in his
capacity   as a peace officer      he Is clothed   with author-
i ty to make arrests . Enforcement        of the statute     1s an
essential    to its effective    administration.      The “reason-
ableness”    of a search and seizure,      under such a search
varrant which authorizes       entry and reentry     for thirty
days after    Its issuance,    must be determined      ln the light
of vhat 1s to be accomplished        by such authorized     actl-
vlty.

              In view of the fact that the search warrant
 authorized     by Section   6 of Article    1525b, V.P.C.,     Is
 so clearly     allied   with the full and adequate adminls-
 tration    of the act,    we think a search properly       lnsti-
 tuted and performed under the authority            of a search
 warrant complying with the provisions           of that stat-
 ute would not be unreasonable          and vould not be vlola-
 tlve of the provlsion;h;;        Arti,cle  1, g 9, of the Con-
 stitution     of Texas.         , of course,    assumes that
Hon.   D. A. Davidson,      Ppge 9,    V-676.



such search varrant        is in full   ccmpllancs    vlth the con-
stitutional     provisions    requiring    “probable    cause’,  the
dsscrlptlon     of the premises      to be searched    and the sup-
porting     oath or affirmation,      each of vhlch 1s essential
to the validity      of the search varrant,        and each of which
must be governed by the facts peculiar             to the situation
in question.

             We think it not inappropriate             to note the case
of Armstrong      v. Whltten,      41 F. (26) 241, decided         by the
Federal    District    Court for the Southern          District    of Texas.
Judge Hutcheson,       in this case, was passing           on the~valld-
ltg of Article       1525c, V.P.C.,       as a police     measure,   vhlch
statute    provided    for fever tick eradication,            under the
regulation     of the Live Stock Sanitary          Commission,      and
the administration        of vhlch was closely         associated    vith
Article    1525b, V.P.C.       Incidentally,      Section     24 of Artl-
cle 1525c, V.P.C ., provides           for obtaining      a search war-
rant similar       to that under Article        1525b, V.P.C ., but
in the tick-eradication           statute    the search warrant is
effective     for sixty     days.     In that case,      vhich sustained
the validity       of Article     1525c, V.P.C.,      the Court observ-
ed:
              9,. . . It seems to me now, however,      that
       the paramount. consideration      in this case is
       that the Legislature     has undertaken,    by a com-
       prehensive     scheme, to eradicate    the fever  tick,
       and that all the provisions       of the act are de-
       signed    for, and should be considered      in the.
       light    of, that purpose;   . . .
              ”
               . D m The Legislature,      having full     pover
       to do so, has undertaken by a comprehensive
       scheme, a valid and constitutional         purpose,     to-
       vit:    to  eradicate  the  fever-carrying     tick   from
       the cattle     of this State,   and that all the pro-
       visions    of the act are designed      and measured
       to that end.

                “That the Legislature     has the right      to ln-
        stltute    and carry out methods of tick eradlca-
        tlon under the general police        powers of the
        state,    and, that especially     under the provls-
        ions of Article     16, Section    26, of the Consti-
        tution    It has the right to require      plaintiff
        and others similarly      situated    to take such
        mea9ure9, adopt such precautions,         and put into
Hon. D. A. Davidson,            Pago 10,           V-676.


      operation          such actlrltles as vi11 at least
      constitute          a good-faith endeavor to free
      the state          of the menace and burden at. vhlch
      the lav is aimed, thst,   this being so,plaln-
      tiff’s  bill presents no squity   for relief,
      and his prayer for injunction   should be
      denied .’


                The provisions   of Article     1525b, Sec-
      tion      6, Vernon’s Penal Code, which author-
      izes   the lsslaance of a search vqrrant            per-
      mitting    entry and reentry       thereunder     for
      a period    of thirty    days after      issuance    when
      a peace officer      shall accompany a veterln-
      arlan employed by the Live Stock Sanitary
      Commlsslon     in exercising     the authority        con-
      ferred    by that statute,      are valid,     and a
      search properly      instituted     and conducted
      under authority      of a search warrant vhich
      fully    complies  vlth such statute         would not
      be unreasonable,      as a matter of lav, with;
       in the lnhlbltlon      of Article     I, Section      9,
       of the Constltutim        of Texas.       The “reason-
      ableness”     of such varrant      depends upon the
       facts   of each situation.

                                           Yours     very   truly

                                  ATTORNEYGENERALOF TEXAS




                                   APPROVED:




                                   ATTORNEYGJZRERAL
                                                  .

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