Department of Agriculture Austin,Texas
Attention: Mr. Charles E. Bau&man
Gentlemen

: Opinion No. O-3273 Re: Requirements

for the sale of nursery stock.

Your letter of March 11, 1941, requesting an opinionof this department regarding

the sale of nursery stocks,floral stocks and cut flowers has had our attention.

You state that:

"In the conductof the nurseryand floralbusiness, growers of nursery stock, floral stock and producersof cut flowers send their trucks and/or otherVehiclesto parts of the State removed from their place of businessfor the purposeof 'peddling'

such stocks and cut flowers.

"Willyou pleaseadvise this Department where the owners of such nurseries

and floralplants

have complied

with the provisions

of the Nursery Inspection Law, by obtaining

the requiredInspection Certificate,and

where proper agents credentials

have been issued covering their producing

place, if the owners of such places of business would be required

to obtain any kind of additional certificate

from this Department in order to peddlenursery stock, floral stocks and/or cut flowers

produced

by them."

We have carefully

examined

the provisions

of Chapter 7 of Title 4 of the Revised Civil Statutes, and Chapter 10 of Title 19 of the Penal Code of Texas, dealing with the subjectof nursery stocks and the regulation

thereof

by the Commissioner of Agriculture.

Articles 

### 135 of the RevisedCivil Statutesand 

### 1689of the Penal Code define "nursery

stock," "nursery," "dealer,""and"agent of a nursery or dealer." Article 119 of the Revised Civil Statutes placesnursery and floral stocks,cut flowers, etc., under the supervision and controlof the Commissioner

of Agriculture. Article 120 of the ReVised CivilDepartment of Agriculture, page #2 

### (O-3273)

Statutes

and Article 1691 of the Penal Code make it unlawful for any personunder the circumstances et forth to keep or keep for sale certain stocks infested

with diseaseor pests. Article I.26 of the RevisedCivil Statutesand Article 

### 1.692 of the Penal Code progide for a yearly examination by the Commissioner of each nursery or other placewhere nursery stock is exposedfor sale. The Commissioner is required

to issue a certificate that such nursery stock is apparently free from diseaseor pests, if he so determines. Article I.21 of the Revised Civilgtatutesdeclares that an infected

or diseased

tree, shrub or plant is a publicnuisance aird the Commissioner

is authorized

to abate it. Articles 122, 123, I.24 and 

### 125, Revised Civil Statutes, set forth the procedure for such abatement.

Under Article l.27,

Revised Ciail Statutes, and Article 1693 of the Penal Code it is required-:thst the Commissioner's

certificate

of freedomof disease or pests accompany any shipment

or delivery

of nursery stock. It is made unlawful

to send out or deliver nurserystockwithout this dertificate.Article 

### 131 of the RevisedCivil Statutesauthorizes the Commissicmer to inspect

all shipments

of nursery stock. Article I.29 of the Re%ised Civil Statutesgives the Commissioner authority

to revoke a certificate of inspection

for false representations of for violation

of law or the rules and regulations of the Commission. Article 1696 of the Penal Code dee:Mem it a crime to make false representations to the Commissioner for the purposeof obtaining a certificate.Article 

### 133 of the Revised Civil Statutes

providesfor reasonable inspection

fees.

Articles 

### I.27

and 130 of the Revised Civil Statutesdeal with nursery stock shipped into this State. Article 1&94ofthe Penal Code and 130 of the Revised Civil Statutesdeal with the rights and liabilities of transporl tation companies

and common carriers.

Article 1699 of the Penal Cods dealswith the liability of an agent or a dealer or nursery man; an d Article 

### 1670

makes unlawful

fraudulent

sales.

We have thus reviewed the pertinent

provisions

of the RevisedCivil Statutes

and the Penal Code relating to nursery stock. It is our opinion that the certificate of inspection

required

by Article 126 of the Revised Civil Statutesand Article 

### 1692of the Penal Cods is the only certificate requiredfor the sale or delivery of nursery stock by Chapter 

### 7 of Title 4 of the RevisedCivil Statutesand Chapter 10 of Title 19 of the Penal Code of Texas

APPROVED

APR. 16, 1941 Very truly yours
s/ GROVE3SELLERS FIRST ASSISTANT ATTORKRYQXERALOF TEXAS

ATTORNEYCEWERAL APPROVEI):

OPINIONCOMMITPEE BY B. W. B. CHAIRMAN JDS:db/ldw s/ James D. Smullen

BY James D. Smullen

Assistant