TWEATTOIRNN~GENERAL 

OF-TEXAS 

November 23, 1955 

Dr. M. T. Harrington 

Chancellor 

Opinion No. S- 18 1 

Texas A. & M. College System 

College Station, Texas 

Dear Dr. Harrington: 

Re: Construction of H. B. 169, 

53rd Legislature, 1953, 

amending the “Feeding Stuff” 

law, codified as Title 60, 

v. c. s. 

Your letter requesting our opinion reads as follows: 

‘Certain sections of Title 60 of the Revised Civil 

Statutes and certain sections of the Penal Code under 

‘Feeding Stuffs’ were amended by H. B. 169, Chapter 

333, page 826, Acts of the Fifty-third Legislature. 

“There is a question on the part of the Director 

of the Agricultural Experiment Station, who ls charged 

with the supervision of the enforcement of the Pure 

Feed Law, as to the interpretation to be placed on, and, 

the means of enforcing the law under Articles 3881b and 

3881d. Since the questions to be asked relate directly to 

these two Articles, the sequence in which they were 

adopted may shed some light on the legislative intent. 

“H. B. 169 as finally passed amended Articles 3872 

and 3875 and added four new Articles, namely 3881a, 

3881b. 3881c, and 3881d to Title 60 of the Revised Civil 

Statutes and amended Articles 1489, 1492, and 1493 of 

the Penal Code under the title ‘Feeding Stuffs.’ 

‘House Committee Amendment NO. 1 to H. B. 169~s 

introduced added three new sections, namely 3881a, which 

defines special-formula feed and custom milling or custom mixing; 3881b, which made non-applicable certain 

Articles of Title 60 of the Revised Civil Statutes and certain Articles of the Penal Code under ‘Feeding Stuffs’ 

where the tax had been paid on all ingredients supplied 

by the mixer or mlller~ and 3881c, which provided for 

a reporting system for persons selling special-formula 

feed or custom-mixed feed. 
Dr; M. T. Harrlngton, page 2 (Opinion No. S-181) 

*After H. B. 169 passed the House, the Senate Committee offered two amendments to this bill. Senate 

Committee Amendment No. 1 was 3881d, which provided 

that “no portion or sectton of this act except those pertaining to taxes”’ should apply to those engaged in the 

milling or mixing of what is commonly known as custom 

mixing or special-formula mlxlng. Senate Committee 

Amendment No. 2 to H. B. 169 amended 3881~ to exempt 

the seller from certain requirements when the consurnerbuyer, by affidavit, states that he does not wish such process t0 continue. 

‘I-I. B. 169, with these amendments, passed the Senate, 

and the House concurred in the Senate amendments. 

*Article 3881b provides “None of the provisions of 

the Revised Civil Statutes of Texas, 1925, Articles 3872, 

3874, 3875, or 3877, as amended, nor the Penal Code of 

the State of Texas, 1925, Articles 1489, 1492, or 1493, 

shall apply to sales of special-formula feed, or custom 

milling or mixing, or any combination of such speclalformula feed and custom milling or mlxlng (1) when a tax 

has been paid on all ingredients supplied by the person 

mixing. milling, or processing such feed, and (2) when all 

other ingredients are supplied by the consumer-buyer for 

his own use and not for resale.’ 

“If Article 38811, ls applicable the only means by which 

it can be determined that the tax referred to in this Article 

has been paid 1s by the application of Article 3881~. yet, 

the penalty provision of thls Article (1493Pc) is one of the 

provisions made non-operative by 3881b. 

“Article 3881d provides ‘It is specifically provided 

that no portion or Section of this Act, except those pertaining to taxes, shall apply to any milling or mixing process 

when all of the ingredients are delivered by the owner 

thereof or by his agent, or if the customer or his agent 

furnished a portion of the ingredients, and the miller, mlxer, or processor adds other ingredients in amounts speclfled 

by such customer or his agent, or lf the customer spsclfies 

the amounts and percentages ln such mixture.’ 

YIf Article 3881d is applicable, then the following Artlcles of Title 60 are non-operative, 3872, 3881a, 3881b. 

3881~. and the following Acts of the Penal Code, 1489 and 
Dr. M, T. Harrington, page 3 (Opinion No. S-181) 

1493. Even though Article 3875 and Article 1,492 PC 

were amended by H. B. 169, they remain in effect because they pertain to taxes. 

“In attempting to enforce the law sfnce the adoption 

of H. B. 169, the Dtrector of the Experiment Station has 

come to the conclusion that a clarification is needed for 

an efficient and fair enforcement. We, therefore, request 

your opinton as to the following: 

“1. Is th,e above interpretation of 3881b correct? 

Does the Direcztor have authority under 3880 to prescribe 

a means of reporting oth,er than by invoices in order to 

determine th,e compliance with the taxing provisions of 

3881b? 

“2. Is the above interpretation of Article 3881d 

correct? 

“3. Is there conflict between Articles 3881b and 

3881d of the Revised Civil Statutes? 

“4. If the answer to No. 3. is ‘yes’, does the Director of the Experiment Station have the authority, under 

Article 3880, to specify which of these articles shall be 

the controlling one in the enforcement of the law? 

“5. I,f he does not have the aut,hority, which of the 

two Articles will control? 

“6. If neither controls, in your opinion, then how is 

the conflict to be resolved? 

“7. If your enswe% to No. 3 1s ‘no’, then do Article 

3875, Revised Civil Ststutes, and Artick 1492 of the 

Penal Code apply to feeds sold an special-formula feeds 

or euetom-mixed feeds as far as th.e collection of tax on 

feeding stuffs is cancerned? * 

It is elementary that a rrmedtrl statute should be construed SO 

as to give effect to the Leglsl~atlva intent. This intent is to be arcsrtalned 

from the entire act lncludlng statements made in the emergency clsu~e. 

All parts of an act ah,ould be construed in par1 materla and all parts of an 

act should be construed so as to give effect to all sections if possible. It 

is not to be presumed that the Legislature intended parts of the same act 

to be in conflict. 
Dr. M. T. Harrlngton, page 4 (Opinion No. S-181) 

The Legislature in the emergency clause clearly stated time 

purpose of the act ln the following language: 

‘The fact that the change ln method of paying the 

inspection tax authorized in Sections 1 and 2 of this Act 

would simplify and facilitate the admlnlstratlon of the 

Feeding Stuffs Law, and the fact that the law should be 

clarified with respect to the status of custom mixing 

and custom grinding of feed stuffs so as to exempt .custom 

mixing and grinding from the provfsions of this Act, because the custom mixing and custom grinding of feed stuffs 

for dairy men, livestock owners and other consumers of 

feed stuffs, according to the specific dlrectfons and wishes 

of the consumers, for the use of such consumers and not 

for the purpose of resale should be in all things exempted, 

and to be exempted from the necessity of placing tags or 

labels upon such custom mixed feed stuff and should be 

exempted from any additional tax upon such custom mixed 

feed stuffs where the original Ingredients in such custom 

mixed feed stuffs have already had the tax paid on same, ” 

. . . 

It is our opinion that Section 7 of House Bill 169 codlfled as 

Article 3881b, Vernon’s Civil Statutes, and Section 8(a) codified as Article 

388111, V. C. S., are not in conflict with the expressed intent of the Legislature as set forth in the emergency clause or gleaned from reading the 

amendatory act from its four corners, and that said sections are not in 

conflict with each other, We will not attempt to answer each of your questions categorically, but will give our construction of the amendatory act 

and set forth our conclusions which we believe will enable you to enforce 

the original Act as well as the amendment in accordance with the legislative intent. 

House Bill 169 purports to change the old law in respect to 

three things only: (1) It changes the method of paylr$ the inspection fee; 

(2) exempts certain provtslons of the ‘Feeding Stuff law to sales of 

special formula feed, or custom milling or mixing, as reflected by Sectlon 

7 of the Act which reads as follows: 

“None of the provisions of the Revised Civil Statutes 

of Texas, 1925, Articles 3872, 3874, 3875, or 3877, as 

amended, nor the Penal Code of the State of Texas, 1925, 

Articles 1489, 1491, 1492, or 1493, shall apply to sales 

of special-formula feed, or custom milling or mlxlng, or 

any combination of such special-formula feed and custom 

milling or mixing (1) when a tax has been paid on all lngredients supplied by the person mixing, milling or 
Dr. M. T. Harrington, page 5 (Opinion No. S-181) 

processing such feed and (2) when all other ingredients 

are supplied by the consumer-buyer for his own use and 

not for resale.* J and 

(3) exempts certain mllllng and mixing processes from all the provisions 

of House Bill 169 except those pertaining to taxes in certain instances as 

reflected by Section 8(a) of the Act which reads as follows: 

“It is speclflcally provided that no portion or Section 

of this Act, except those pertaining to taxes, shall apply 

to any milling or mixing process when all of the Ingredients 

are delivered by the owner thereof or by hls agent, or if the 

customer or his agent furnishes a portion of the ingredients, 

and the miller, mlrer, or processor adds other ingredients 

in amounts specified by such customer or his agent, or lf the 

customer specifies the amounts and percentages in such mtuture.” 

Section 6 of the act defines the term “Special-formula feed’ as 

follows: 

y ‘Special-formula feed’ means a mixture prepared 

for and according to the instructions of a consumer-buyer 

from lngredlents which are 01” have been purchased wholly 

from the person who manufactures, processes or mixes 

such mixture.” 

and the term “custom milling” or “custom mixing” as follows: 

M ‘Custom milling,’ ‘custom mixing,’ or like terms 

mean the milling, mixing or processing where all the 

ingredients are delivered by the owner thereof of by his 

agent (which agent shall not be the miller, mixer or processor or his employee) to the mill and are processed 

according to his instructions.” 

Section 8 provides: 

*Any person who sells special-formula feed or who 

processes custom mixed or milled feed, or any combination of such feeds shall keep accurate records of all 

transactions regarding such sales and services; and shall 

give the consumer-buyer an invoice and shall forward a 

duplicate copy of such invoice to the director of the Texas 

Agricultural Experiment Station within ten (10) days after 

the close of each quarter year ending with the last day of 
Dr. M. T. Harrlngton, page 6 (Opinion No. S-181) 

November, February, May and Aug.ust. The invoice shall 

show the total amount of such exempt feeds, the amount of 

each ingredient in the mixture, and the name of the consumer-buyer to whom such feed is delivered. For the 

purpose of determining the accuracy of such records, the 

dlrectur of said experiment station may with the permlsslon of the consumer-buyer collect samples from the 

consumer-buyer named in the invoice and analyze such 

samples to determine the conformity of the mIxtare to 

the statement on the invoice. Provided, however, such 

lnvolce shall not be required non issued at any time after 

the consumer-buye:r furnishes his affidavit to the director 

setting forth the fact that he does not want such invoice 

issued, and the director shall not collect samples from the 

consumer-buyer when such affidavit is so furnlshed, and 

provided further that such affldavlt may be revoked in 

writing and filed with the director at any time. Failure to 

comply with the requirements of this Section is punishable 

in the same amount and manner as prescribed in Article 

1493 of the Penal Code of the State of Texas.” 

From a reading of the entire act as a whole, as amended by 

House Bill 169 we will set forth our conclusions as a summary. 

SUMMARY 

(1) That all “feeding stuff” as designated in Article 3872, V.C.S., 

should be labeled or a statement should be furnished as provided for in said 

Article, except as hereinafter set forth. 

(2) That the manufacturer, importer, agent or seller of such 

“feeding stuff” shall pay the inspection fee and tag same as provided in 

Article 3875, except in those instances hereinafter stated. 

(3) That the importer, manufacturer or party who causes it to 

be sold shall file the statements and deposit the samples of the ‘feed stuff’ 

as provided in Article 3874, V. C. S., except in those instances hereinafter 

set forth. 

(4) That the analysis should be made as to all “feeding stuff” as 

provided in Article 3877, except in those instances hereinafter stated. 

(5) That the inspection tax is due upon all ingredients supplied 

by the person mixing, milling or processing “feed stuff even though the 

mixture is a ‘“Special-formula feed” or a “custom milling” or “custom 
Dr. M. T. Harrlngton, page 7 (Opinion No. S-181) 

mixing’ feed as defined in Article 3881a and even if sold to a buyerconsumer and is not purchased for re-sale. 

(6) That an inspection tax is not due to sales of “specialformula feed” or custom milling or mixing or any combination of such 

special formula feed and custom mll~llng or mlxlng as to the ingredients 

that are supplied by the consumer-buyer for his own use and not for resale. That an inspection tax is due in all, other instances. 

(7) That neither the provisions of Article 3872, 3874, 3875 or 

3877 nor the corresponding provisions of the Penal Code, to-wit, Articles 

1489, 1491, 1492, or 1493 apply to sales of special-formula feed or custom milling or mixing, or any combination of such special-formula feed 

and custom milling or mixing when a tax has been paid on all ingredients 

supplied by the person mixing, milling or processing such feed and all 

other ingredients are supplied by the consumer-buyer for his own use and 

not for re-sale. 

(8) That all persons who sell special-formula feed or who 

process custom mixed or milled feed or any comblnatlon of such feeds shall 

keep the records and comply with the other provisions of Article 3881c, and 

that a failure to comply would subject such person to a fine of not exceeding 

$500.00 as provided in Article 1493 of the Penal Code. 

(9) Tbst the lnspectlon tax is due on all milling or mixing processes even though all the ingredients are furnished by the person ordering 

such feed, unless the feed is to be consumed by such person. 

(10) That the inspection tax is due on all milling or mixing 

processes even though the customer furnisb.es a portion of the ingredients 

and the miller, mixer or processor adds other ingredients in amounts specified by such customer unless the feed is to be consumed by the customer 

and even then the tax would be due as to the portion of the ingredients furnished by the miller, mixer or processor if a tax had not been paid on such 

latter.ingredients prior thereto. 

(11) That the inspection tax is due on all milling or mixing 

processes even though the customer specifies the amounts and percentages 

in such mixture unless the ingredients are furnished by the customer and 

is to be consumed by him and is not for re-sale. 

(12) That the provisions of Articles 3872 and 3875, V. C. S., 

and the corresponding Articles 1489 and 1492, V. P. C., apply in all lnstances where an inspection tax is due. 

(13) That every manufacturer, importer or seller must keep 

all records and make all reports provides for in Title 60, that will enable 
Dr. M. T. Harrlngton, page 8 (Opinion No. S-181) 

the director of the Texas Agricultural Experiment Station to determine 

whether a tax is due or whether an exemption exists under the provisions 

of either Article 3881b or 3881d. 

(14) The director of the experiment station by virtue of the 

provisions contained in Articles 3875 and 3880 wherein he is empowered 

to adopt such regulations as may be necessary for the enforcement of the 

law does not have the authority to require manufacturers, importers, or 

sellers of feed stuff to make any reports or keep any records not provided for in the “feeding stuff” law. Margolln v. State, 205 S.W. 2d 775 

(Tex. Grim. 1947). Even if he had such authority, the order would be unenforceable, in that no penalty is provided by the Act for failure to comply. 

Yours very truly, 

APPROVED: 

Mert Starnes 

Reviewer 

JOHN BEN SHEPPERD 

Attorney General 

J. A. Amis, Jr. 

Reviewer 

L. W. Gray 

Special Reviewer 

W. V. Geppert 

Assistant 

Davis Grant 

First Assistant 

John Ben Shepperd 

Attorney General