E zwx GENE OF a‘EXA.S

Honorable Fred West Opinion No. C- 105 County Attorney Lubbock County Re: Whether the operator of Lubbock, Texas a commercial feed lot, who conducts his business as outlined, is subject to the re uirements of ArtiDear Mr.West: cle 38le, 8 v.c.S. Wequote aspfollows from a letter addressed to you from R. K. Harty, a Lubbock attorney, which accompanied your request for an opinion from this office:

"It is respectfully requested that you ask the Attorney General of the State for anopinion as to whether or not the operator of a commercial feed lot', whoconducts his business in the manner outlined below, is required to pay the Inspection fee, keep the records, and,otherwlse meet the requirements of the above statute rticle 388le, Revised Civil Statutes of Texas which is also known f as the 'Texas Commercial Feed ontrol Act of 1957.' It Is our belief that the operation In question is not subject to the statute.

. . . "Theoperator in question contracts with the owner of cattle to care for andfeed themat his ownplace of business, using his ownfacilities andfurnishing the necessary labor, supplies and feed stuffs. Generally speaking, the cattle are fed amixture of ingredients which the operator of the feed lot acquires from other parties and mixes In his ownmachinery, to his ownspecifications. Hemay, however, onoccasions supply the cattle with feed which is already mixedby other parties, andhemaysupply somefeed stuffs which he does not mix, but feeds in conjunction with other materials, simultaneously or seriatim. He bills the owners of the cattle weekly or monthly, on the basis of the cost of the feed stuffs used, plus a charge for the use of his facilities and the services of himself andhis employees. The risk of death losses is on the owner of the cattle.

-514-Honorable Fred West, page 2 (C-105 )

Theoperator makesnoguarantee of results, and his compensation is not dependent uponthe gain in weight achieved by the cattle, nor uponthe profitrealized from their sale. Normally; the operator uses his ownjudgment as to the composltlon of the mixture fed to the cattle.” Senate Bill No. 18, 55th Legislature, Regular Session, 1957, is codified as Article 3881(a), Vernon’s Civil Statutes, This Act Is also knownas the Texas Commercial Feed Control Act of 1957. Section 21 of Senate Bill No. 18recites the public necessity of the Act as fo~llows: Emergency Clause

“Sec. 21. Thefact that present laws are not adequate to regulate the manufacture andsale of commercial feed in Texas; the fact that raisers in Texas of livestock, poultry, andother animals need uniform guaranties andlabeling of feeds which are offered to them; andthe further fact that it would be of great material advantage to have the laws of Texas conform insofar as practicable with the present daypractices of feeders andfeed~manufacturers, andto afford maximum protection to the purchas,ers of feed, tive necessity.

. .”create anemergency andimperaTheTexas Commercial Feed Control Act of 1957regulates the manufacture, sale, offering for sale anddistribution for sale of commercial feed as defined in the Act. Theregulations contained in the Act most pertinent to our discussion are summarized as follows:

Se&Ion 5. Provldes for the registration of each brand of commercial feed, except customer-formula feed, with the Director of the Texas Agricultural Experiment Station before such feed Is offered for sale, sold or otherwise distributed In the state.

Section 6. Requires manufacturers or other persons,~ before ;;;;;ng, delivering, or offering for sale anycommercial feed In the

except customer-formula feed, to place on the outside of the container a label bearing detailed Information with regard to the contents of the container.

Section 7A. Requires that “persons engaged In the manufacture, sale, or distribution of commercial feeds or the components of commercial feeds to pay to the Director.

. .an Inspection fee of TenCents (lO$) per ton onall such commercial feed.”

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Honorable Fred West, page 3 (C-105 )

Section 7D. permit to sell, Requires that each person whoIs Issued a

offer for sale or otherwise distribute commercial feed andpays the inspection fee In accordance with the tonnage tiei porting system to maintain andfile such records andreports & the Director at his discretion is authorized to require.

Section 13. Declares certain acts to be unlawful; Subsections (b) through (g) of~Sectlon 13of the Act each relate 'tom anactivity described as "to sell, offer, expose or dlstribute'for sale.

. ." commercial feed not in accordance wlth.the provisions of specifically namedsections of the Act.

Section 14. States that the performance of anyact declared as unlawful under Section 13 "shall, upon conviction, be guilty of a misdemeanor.

. ."

Thequestion of whether a commercial feed lot operator whooperates his business as outlined in the facts submitted Is subject to the regulations of the Act is resolved by determining If the operator sells, offers, or exposes or distributes for sale commercial feed as contemplated by the Act.

Thebailment of animals for the purpose of grazing and pasturing is termed 1021 (Tex.Clv.App., arises under a contract which provides for the bailor supplying the cattle or other animals of the bailee with sufficient water andgrass, Tuttle v. Moody, 100Tex. 240, 97S.W. 1037 (1906) for astated period f time at a designated consideration. ;68, 284S.W.2d 138 (1955). Presley v. Cooper, 155Tex.

Other than the difference in the primary type of food supplied, wesee nodistinction between the aglstment where the agister provides for the pasturage of cattle or other animals committed to his care onlands ownedor controlled byhimandthe aglstment where the aglsterprovides for the care andfeeding of such animals In a commercial feed lot under his management or ownership. Whena controversy arises in an agistment as to whether the contract price for pasturage of cattle is in Issue, evidence as to the reasonable value of the pasturage for the contract term Is admissible. Carver, et al. v. PowerState Bank, 164 S.W. 892 (Civ.App. 1914, dism. w.o.d.1. In theabsence of a contractual provlsibn ii the agistment-c&tract concerning remuneration, an agister is entitled to the reasonable value of his services. Crenshawv. Bishop, 143S.W. 284 (Civ.App. 1911).

-516-Honorable Fred West, page 4 (c- 105)

It thus appears that an agistment comes within the rule that where service predominates andthe transfer of personal property andthe delivery of personal property Is merely anincident to the contract, the contract Is one for "work, labor andmaterials" and not one of sale. Bogata Mercantile Co.-v. Outcault Advertising Co., 184 S.W.333 (Tex.Clv.App. lglb); Crystal Recreation v. Seattl Association of Credit Men, 209 P.2d 356 (SupremeCt. W a8 ., h l&9); perlmutter v. Beth David Hospital, 123N.E.2d 792 (Ct. of Appeals, N.Y 1954) m.
. Wise andCo. v. F.S;pp. 621 ?io. Dist. NewYork, lgbl). RandMcNally andCo., 195

Theterm "sale" Is defined In 37ATex.Jur. 38, Sales, Sec. 2as "a transfer of personal property from one person to another for aprice in moneyor for property of anagreed moneyvalue." The sameterm Is defined In Section 1of the Uniform Sales Act as anagreementwhereby the seller transfers the property In goods to the buyer for a consideration called the price. Only the most strained con-', structlon of the facts submitted could result in a conclusion that a commercial feed lot operator sells feed to the owner of cattle or other animals committed to his care.

There is nopoint of time at which title to the feed passes from the agister to the ballee. Theaglster does not contract to sell anyparticular type of feed, nor Is there anytime at which the bailee can demandany certain quantity of feed. Acontractis not sufficiently certain, to be enforced, If it falls to sweclfs the auantlty of goods to be sold or bought andthe amountthereof,,i-a:en-. -- tirely optional with the seller or buyer. Miller v. Vought andTaylor Const. Co., 345 S.W.2d 852, (Civ.App. 1961, error ref. n.r.e.).

Rule Number10of the Rules andRegulations adopted by the Texas Feed Control Service under the Texas Commercial Feed Control Act of 1957reads as follows:

"Anyperson whofeeds commercial feed to animals pursuant to a contract whereby such commercial feed Is supplied, furnished or otherwise provided to such person andwhereby such person's remuneration Is determined or affected all or in part by feed consumption, mortality, profit or amountor quality of product, is subject to the registration, labeling, sampling, lnspectlon fee andother provisions of the feed lawand rules andregulations." Weinterpret this rule to Include only those situations where a contract of sale exists between a feeder andpurchaser of commercial feed for a certain type andquantity of commercial feed

-517-Hon. FredWest, page 5 (C-105 )

at afixed price to be fed by the seller to the animals of the purchaser over anagreed period of time. Given this interpretation, Rule 10has noapplicability to the facts at hand. Onthe basis of the authorities discussed, Interpreted In the light of the facts submitted, it Is our opinion that the operator of the commercial feed lot in question does not sell, offer, expose, or distribute for sale, commercial feed within the contemplation of the provisions of,the Texas Feed Control Act of 1957.

SUMMARY Theoperator of a commercial feed lot, whoconducts his business as outlined, is not subject to the registration, labeling, inspection fee andother provisions of the Texas Commercial Feed Control Act of 1957andthe Rule Number10of the Texas Feed Control Service adopted thereunder.

1RW:ms:mkh APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman JohnReeves BenHarrison J. S. Bracewell HowardFender REVIEWED

FORTHEATTORNEY

GENERAL BY: Stanton Stone Very truly yours, WAGGONER

CARR

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