The Honorable Jackie W. St. Clair Opinion No. R-906

Commissioner

.. Texas Department of Labor h Re: Application of the Standards Texas Auctioneers Act to P. 0. Box 12157,Capitol Station livestockmarketing Austin, Texas 78711 businesses or auction barns.

Dear CommissionerSt. Clair:

You have reguested .ouropinion regarding.thecoverage and applicationof the Texas Auctioneer Act, article 8700, V.T.C.S., to livestockmarketing businesses or auction barns. You first ask whether article 8700 includes livestock marketing businesseswithin the definition of "auctioneer" ancl whether, therefore, such a business is required to obtain a license. .'

Article 8700 itself lends support to the position that
a livestockmarketing business isembraced withinthe'statute's terms. A list of seven "exempt transactions".-ins section 2 does not includean exception for a livestockmarketing business. Furthermore, section 6 furnishes evidence that the omissionwas not inadvertent. It specifies .thatthe provisions of section 5, which require an-auctioneerto' obtain a bond,

shall not apply'to livestock auctioheers who are'engaged exclusively in the livestock auction business ih Texas through bonded livestock auction facilities,... . . The clear implicationof this provision is that some livestock auctioneersare subject to the bonding reg=ments of section 5, and hence, that all livestock auctioneers, since they are not exempted from other portions of the statute, are subjectgenerally thereto. We note that an "auctioneer" for purposes of article 8700 includes an individual, corporation "or other group, however organized." See Attorney General @pinion H-7OF, (1975). -

p. 3802The Honorable Jackie W. St. Clair - page 2 (W-906)

You also ask whether a livestockmarketing business must in all circumstances file a bond. As we have previously stated, section 5 of article 8700 requires every entitywhich seeks an auctioneer's license simultaneouslyto obtain a bona in the amount of $5.,000.00.Section 6, however, excludes from this bonding requirement *livestockauctioneers who are engaged exclusively in the livestock auction business in Texas through bonded livestockauction facilities." Bonded livestock auction facilitiesare provided for by the Federal Packers and StockyardsAct of 1921, 7 U.S.C. 6 181, et seq., and by article 1287a,V.T.C.S. As to livestockmarkzing businesses which may not be covered by,either of these two bonding provisions,we believe that the bonding requirement of section 5 is applicable.

In your third and final question,you ask:

Does the federal Packers and Stockyards Act of 1921, 7 U.S.C.A., Section 181 et seq. preempt and rencler~ invalid the Texas Auctioneer Act, Article 8700,V.T.C.S.,~as it applies to those livestockmarketing businesses currently covered by federal regulation?
The Federal Packers and Stockyards Act was enacted in 1921, and the primary purpose of the Act was to assure fair competition and trade practices in the field of livestock marketing. The coverage of the Act was expanded in 1958 to include all livestockmarketing acitivitieswhich were a part of interstate commerce;however, the federal Act does not require any .auctioneeringlicense as such, but rather provides for registrationof auctionmarkets regardless of size. As stated in the bill analysis and legislativehistory of the 1958Amendment to the Act,

who are eii

a in y --o&,~h%%%~~s~i~~ss 259 t e place or places where they operate.

. 3 U.S. C&e Cong.T&Ad. News 5212, 5219 (1958) (Emphasisadded). ‘I

.

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p. 3803The Honorable 'Jackie W. St. Clair - page 3 (H-906)

As the Supreme Court held in Peres v. Cam bell, 402 U.S. 637 (19711,then

Supremacy Clauseminva 1 ate only a state .-E&-- law which,frustratesthe full effectivenessof the federal statute. JusticeWhite, speaking for the majority, stated the test as follows:

Decidingwhether a state statute is in conflictwith a federal statute and hence invalid under the Supremacy Clause is essentiallya two-stepprocess of first ascertaining the constructionof the two statutes and then determining the constitutional question whether~they are in conflict. Id. at 644. - In this particular case, the Texas AuctioneerAct seeks only to upgrade the professional standardsof the auctioneering

. aspect of the livestockmarketing business;and we note that the federal act does not attempt to regulate the specific activities of auctioneers,but rather regulates-thegeneral conduct of participants in the livestockmarketingbusiness at federally bonded facilities. This regulation,however, does not include licensing of auctioneers, and we do not believe the Texas Auctioneer Act invades the field already covered by an Act of Congress. 6 g, 100 F. supp. 781 (D. Minn%~)v$%*?l%gF%%@ 78th Cir.)~,cert. denied, 344 U.S. 934 (1952);Attorney deneral Opinion O-5458 (1943). In our opinion, there is no conflict between the Federal Packers and StockyardsAct of 1921 and the Texas Auctioneer Act. Therefore,we answer your final question in the negative.

SUMMARY
Livestockmarketing businesses or auction barns are covered by the definition of "auctioneer"under article 0700,V.T.C.S., and are required to obtain an auctioneer's license. Auction barns are not required to file a bond under the Texas AuctioneerAct, so long as they are bonded pursuant to,either the Federal Packers and StockyardsAct of 1921, 7 U.S.C. 6 181, et seq. or the Live Stock Auction Commisxon Merchants Act, article 1287a.V.T.C.S. The Federal Packers and

p. 3804The Honorable JackieW. St. Clair - page 4 (R-906)

stockyardsAct does not preempt or render invalid the Texas AuctioneerAct, because there is no conflict between the two statutes.

APPROVED: i/

First Assistant

p. 3805