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 38 8 le, v.c.S. 

We quote asp follows 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 an opinion 

as to whether or not the operator of a commercial 

feed lot', who conducts 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 

as the 'Texas Commercial Feed f ontrol Act of 1957.' 

It Is our belief that the operation In question is 

not subject to the statute. . . . 

"The operator in question contracts with the 

owner of cattle to care for and feed them at his 

own place of business, using his own facilities 

and furnishing the necessary labor, supplies and 

feed stuffs. Generally speaking, the cattle are 

fed a mixture of ingredients which the operator 

of the feed lot acquires from other parties and 

mixes In his own machinery, to his own specifications. He may, however, on occasions supply the 

cattle with feed which is already mixed by other 

parties, and he may supply some feed 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 and his employees. The 

risk of death losses is on the owner of the cattle. 

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Honorable Fred West, page 2 (C-105 ) 

The operator makes no guarantee of results, and 

his compensation is not dependent upon the gain 

in weight achieved by the cattle, nor uponthe 

profitrealized from their sale. Normally; the 

operator uses his own judgment 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 known as the Texas Commercial Feed Control Act of 1957. 

Section 21 of Senate Bill No. 18 recites the public necessity of the 

Act as fo~llows: 

Emergency Clause 

“Sec. 21. The fact that present laws are 

not adequate to regulate the manufacture and sale 

of commercial feed in Texas; the fact that raisers 

in Texas of livestock, poultry, and other animals 

need uniform guaranties and labeling of feeds which 

are offered to them; and the further fact that it 

would be of great material advantage to have the 

laws of Texas conform insofar as practicable with 

the present day practices of feeders and feed~manufacturers, and to afford maximum protection to the 

purchas,ers of feed, 

tive necessity. . .” 

create an emergency and imperaThe Texas Commercial Feed Control Act of 1957 regulates 

the manufacture, sale, offering for sale and distribution for sale 

of commercial feed as defined in the Act. The regulations 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 any commercial 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 Ten Cents 

(lO$) per ton on all such commercial feed.” 

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. - 

Honorable Fred West, page 3 (C-105 ) 

Section 7D. 

permit to sell, 

Requires that each person who Is Issued a 

offer for sale or otherwise distribute commercial 

feed and pays the inspection fee In accordance with the tonnage tiei 

porting system to maintain and file such records and reports & the 

Director at his discretion is authorized to require. 

Section 13. Declares certain acts to be unlawful; Subsections (b) through (g) of~Sectlon 13 of the Act each relate 'tom 

an activity described as "to sell, offer, expose or dlstribute'for 

sale. . ." commercial feed not in accordance wlth.the provisions 

of specifically named sections of the Act. 

Section 14. States that the performance of any act declared 

as unlawful under Section 13 "shall, upon conviction, be guilty of 

a misdemeanor. . ." 

The question of whether a commercial feed lot operator 

who operates 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. 

The bailment 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 and grass, 

Tuttle v. Moody, 100 Tex. 240, 97 S.W. 1037 (1906) for a stated period 

f time at a designated consideration. 

;68, 284 S.W.2d 138 (1955). 

Presley v. Cooper, 155 Tex. 

Other than the difference in the primary type of food 

supplied, we see no distinction between the aglstment where the 

agister provides for the pasturage of cattle or other animals committed to his care on lands owned or controlled by him and the 

aglstment where the aglsterprovides for the care and feeding of 

such animals In a commercial feed lot under his management or ownership. 

When a 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. Power State Bank, 164 S.W. 892 

(Civ.App. 1914, dism. w.o.d.1. In th e absence of a contractual 

provlsibn ii the agistment-c&tract concerning remuneration, an 

agister is entitled to the reasonable value of his services. Crenshaw v. Bishop, 143 S.W. 284 (Civ.App. 1911). 

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Honorable Fred West, page 4 (c- 105) 

It thus appears that an agistment comes within the rule 

that where service predominates and the transfer of personal property 

and the delivery of personal property Is merely an incident to the 

contract, the contract Is one for "work, labor and materials" 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 (Supreme Ct. W a8 h ., l&9); 

perlmutter v. Beth David Hospital, 123 N.E.2d 792 (Ct. of Appeals, 

N.Y 1954) m. . Wise and Co. v. 

F.S;pp. 621 ?io. Dist. New York, lgbl). 

Rand McNally and Co., 195 

The term "sale" Is defined In 37A Tex.Jur. 38, Sales, 

Sec. 2 as "a transfer of personal property from one person to another 

for a price in money or for property of an agreed money value." The 

same term Is defined In Section 1 of the Uniform Sales Act as an agreement whereby 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 no point of time at which title to the feed passes 

from the agister to the ballee. The aglster does not contract to 

sell any particular type of feed, nor Is there any time at which the 

bailee can demand any certain quantity of feed. A contractis not 

sufficiently certain, to be enforced, If it falls to sweclfs the auantlty of goods to be sold or bought and the amountthereof,,i-a:en-. -- 

tirely optional with the seller or buyer. Miller v. Vought and Taylor 

Const. Co., 345 S.W.2d 852, (Civ.App. 1961, error ref. n.r.e.). 

Rule Number 10 of the Rules and Regulations adopted by 

the Texas Feed Control Service under the Texas Commercial Feed 

Control Act of 1957 reads as follows: 

"Any person who feeds commercial feed to animals 

pursuant to a contract whereby such commercial feed 

Is supplied, furnished or otherwise provided to such 

person and whereby such person's remuneration Is determined or affected all or in part by feed consumption, 

mortality, profit or amount or quality of product, is 

subject to the registration, labeling, sampling, lnspectlon fee and other provisions of the feed law and 

rules and regulations." 

We interpret this rule to Include only those situations 

where a contract of sale exists between a feeder and purchaser of 

commercial feed for a certain type and quantity of commercial feed 

-517- 
Hon. Fred West, page 5 (C-105 ) 

at a fixed price to be fed by the seller to the animals of the purchaser over an agreed period of time. Given this interpretation, 

Rule 10 has no applicability to the facts at hand. On the 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 

The operator of a commercial feed lot, who conducts 

his business as outlined, is not subject to the registration, labeling, inspection fee and other provisions of 

the Texas Commercial Feed Control Act of 1957 and the 

Rule Number 10 of the Texas Feed Control Service adopted 

thereunder. 

1RW:ms:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

Ben Harrison 

J. S. Bracewell 

Howard Fender 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

Very truly yours, 

WAGGONER CARR 

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