### TWEATTOIRNN~GENERAL
OF-TEXAS

November 

### 23,**1955**

**Dr. M.**  T. **Harrington** Chancellor Opinion No. S- 181
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 theFifty-third Legislature. “There is a question on the part of the Director of theAgricultural 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 thequestions tobe asked relate directly to these twoArticles, the sequence inwhich theywere adopted may shed some light onthe legislative intent. “H. B. 169 as finally passed amended Articles 3872 and 3875 andadded four newArticles, namely 3881a, 3881b. 3881c, and 3881d to Title 60 of the Revised Civil **Statutes** andamended Articles 1489, 1492, and 1493 

### of the Penal Code under the title ‘Feeding Stuffs.’

‘House Committee Amendment NO. 1to 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 

### 60of the Revised Civil Statutes and certain Articles of the Penal Code under ‘Feeding Stuffs’ where the tax hadbeen 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. 1was 3881d, which provided that “no portion or sectton of this act except those pertaining to taxes”’ should apply to those engaged inthe milling or mixing ofwhat is commonly knownas custom mixing or special-formula mlxlng. Senate Committee Amendment No. 2 to H. B. 169 amended 3881~ toexempt the seller from certain requirements when the consurnerbuyer, by affidavit, states that he does notwish 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 ofTexas, 1925, Articles 3872, 3874, 3875, or 3877, as amended, nor the Penal Code of the State ofTexas, 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) whenall other ingredients are supplied by the consumer-buyer for his ownuse and notfor resale.’

“IfArticle 38811, ls applicable the only means by which it canbe determined thatthe tax referred to in this Article has been paid 1sby the application ofArticle 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 thatno portion or Section of this Act, except those pertaining to taxes, shall apply toany 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 inamounts speclfled by such customer or his agent, **or** lf the customer spsclfies theamounts and percentages ln such mixture.’ YIfArticle 3881d is applicable, thenthefollowing Artlcles of Title 60 are non-operative, 3872, 3881a, 3881b. 3881~. andthefollowing Acts of thePenal Code, 1489 andDr. M, T. Harrington, page 3 (Opinion No. S-181)

1493. Even thoughArticle 3875 andArticle 1,492PC were amended by H. B. 169, they remain ineffect because they pertain to taxes.

“Inattempting to enforce the law sfnce theadoption of H. B. 169, the Dtrector of the Experiment Station has come to the conclusion that a clarification is needed for an efficient andfair enforcement. We, therefore, request your opinton as tothefollowing:

“1. Is th,eabove interpretation of 3881b correct? Does the Direcztorhave authority under 3880 to prescribe a means of reporting oth,erthanby invoices inorder to determine th,ecompliance with the taxing provisions of 3881b?

“2. Is the above interpretation ofArticle 3881d correct?

“3. Is there conflict between Articles 3881b and 3881d of the Revised Civil Statutes?

“4. If the answer toNo. 3. is ‘yes’, does the Director of theExperiment 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,fhe does not have theaut,hority, which of the twoArticles will control?

**“ 6.**  Ifneither controls, inyour opinion, then how is the conflict tobe resolved?

“7. Ifyour enswe% toNo. 3 1s **‘ no** **’ ,**  then doArticle 3875, Revised Civil **Ststutes,** andArtick 1492 of the Penal Code apply tofeeds sold an special-formula feeds or euetom-mixed **feeds** as far as th.ecollection 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~atlvaintent. 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 inpar1 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 thatthe 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 lnthe following language:

‘The fact that the change ln method ofpaying the inspection tax authorized in Sections 1and 2 of this Act would simplify andfacilitate the admlnlstratlon of the Feeding Stuffs Law, and thefact thatthe law should be clarified with respect to the status of custom mixing and custom grinding offeed stuffs so as to exempt .custom mixing andgrinding from the provfsions 

### ofthis Act, because the custom mixing and custom grinding offeed stuffs for dairy men, livestock owners and other consumers of feed stuffs, according tothe specific dlrectfons andwishes of the consumers, for the use of such consumers andnot for the purpose of resale should be inall things exempted, and tobe exempted from thenecessity of placing tags or labels uponsuch custom mixed feed stuff and should be exempted from any additional taxuponsuch custom mixed feed stuffs where the original Ingredients insuch custom mixed feed stuffs have already had the tax paid onsame, ”

. . . It is our opinion thatSection 7 of House Bill 169 codlfled as Article 3881b, Vernon’s Civil Statutes, andSection 8(a) codified as Article 388111,V. C. S., are not inconflict with the expressed intent of the Legislature as set forth inthe emergency clause or gleaned from reading the amendatory act from its four corners, and thatsaid sections are not in conflict with each other, We will not attempt to answer each ofyour questions categorically, butwill give our construction of theamendatory act and set forth our conclusions which we believe will enable you toenforce 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) Itchanges 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 theAct which reads as follows:

“None of the provisions of theRevised Civil **Statutes** ofTexas, 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) whena tax has been paid on all lngredients supplied by the person mixing, milling orDr. 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 ownuse and notfor resale.* Jand (3) exempts certain mllllng and mixing processes from all the provisions of House Bill 169 except those pertaining totaxes in certain instances as reflected by Section 8(a) of theAct which reads as follows:

“It is speclflcally provided thatno 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 inamounts specified by such customer or his agent, or lf the customer specifies the amounts andpercentages 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.” andthe 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 8provides: *Any person whosells 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 andshall forward a duplicate copy of such invoice to the director of theTexas Agricultural Experiment Stationwithin ten (10) days after the close ofeach quarter year ending with the last day ofDr. M. T. Harrlngton, page 6 (Opinion No. S-181)

November, February, May andAug.ust. The invoice shall show the total amount of such exempt feeds, the amount of each ingredient in the mixture, and thename of the consumer-buyer towhom 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 inthe invoice andanalyze such samples to determine the conformity of the mIxtare to the statement on the invoice. Provided, however, such lnvolce shall notbe required non issued at any time after the consumer-buye:r furnishes his affidavit to the director setting forth the fact that he does notwant such invoice issued, and the director shall not collect samples from the consumer-buyer when such affidavit is so furnlshed, and provided further thatsuch affldavlt may be revoked in writing andfiled with the director at any time. Failure 

### to comply with the requirements of this Section is punishable inthe same amount and manner as prescribed inArticle 1493 of the Penal Code of the State of Texas.” From a reading of the entire act as awhole, as amended by House Bill 169we will set forth our conclusions as a summary.

SUMMARY (1) That all “feeding stuff” as designated inArticle 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 anddeposit the samples of the ‘feed stuff’ as provided inArticle 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 inArticle 3877, except inthose instances hereinafter stated.

(5) That the inspection tax is due uponall ingredients supplied by the person mixing, milling or processing “feed stuff even thoughthe mixture is a ‘“Special-formula feed” or a “custom milling” or “customDr. **M.** T. Harrlngton, page 7 (Opinion No. S-181)

mixing’ feed as defined inArticle 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~llngor mlxlng as to the ingredients that are supplied by the consumer-buyer for his ownuse and notfor resale. That an inspection tax is due inall,other instances.

(7) That neither the provisions ofArticle 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 ownuse 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 ofArticle 3881c, and that afailure to comply would subject such person to afine of not exceeding $500.00 as provided inArticle 1493 of the Penal Code.

(9) Tbst the lnspectlon tax is due onall milling or mixing processes even thoughall the ingredients are furnished by the person ordering such feed, unless thefeed is tobe consumed by such person.

(10) That the inspection tax is due on all milling or mixing processes even thoughthe customer furnisb.es a portion of the ingredients and the miller, mixer or processor adds other ingredients inamounts specified by such customer unless thefeed is tobe consumed by the customer andeven then the taxwould be due as to the portion of the ingredients furnished by the miller, mixer or processor ifa tax had notbeen paid onsuch latter.ingredients prior thereto.

(11) That the inspection tax is due on all milling or mixing processes even thoughthe customer specifies the amounts and percentages insuch 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 ofArticles 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 andmake all reports provides for inTitle 60, thatwill enableDr. 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 inArticles 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 offeed stuff to make any reports or keep any records not provided for inthe “feeding stuff” law. Margolln v. State, 205 S.W. 2d 775 (Tex. Grim. 1947). Even if he hadsuch authority, the order would be unenforceable, inthatno penalty is provided by theAct 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 JohnBen Shepperd Attorney General