December 12, 1951 

lion, D. A. Davidson, Dlrector 

Livestock Sanitary Commission 

of Terns 

3320 ' West Seventh Street 

Fort Worth, Texas Opinion No. V-1372 

Re: Legality of cattlemen's 

using individual holding brands which are 

the same as brands 

specified by law to 

identify diseased catDear Mr. Davidson: tle. 

Your request for an opinion refers to certain 

Acts of the Legislature which provide for the brandine 

of diseased cattle on the left jaw with the letter "T 

for those with tuberculosis, and the letter "B" for 

those having Bang's Disease , and then you state as follows : 

'In the first of these Acts the letter 

'T' is designated for the identification of 

cattle found, by recognized methods, to be 

positive reactors to the tuberculin test; 

and in the second Act, the letter IBI is 

designated for the identification of cattle 

found to be positive reactors to the recognized test for Brucella Abortus. It has 

now come before this Department and its 

field representatives 'chat individual cattlemen are using the letter IT' in some 

instance, and the letter IBI in others, 

as individual holding brands. Investigations further reveal these holding brands 

are recorded with the County Clerks of the 

Counties wherein the owners reside, identlfying these brands as having been legally 

recorded. 

"In the instance of the brand ITI, it 

was found upon Investigation that some fifteen individual owners in the western part 
. . 

Hon. D. A. Davidson, page 2 (v-1372). 

Of the State have this brand recorded, with 

its position designated on the animal as 

the left jaw, as a holding brand. 

"Since separate Acts of the Legislature have definitely set out and designated 

the letter ITI, in the Instance of tuberculin reactors, and the letter IBI in the 

instance of Brucellosia reactors, as a 

distinct identification of animals found 

positive reactors to either of these diseases, as the case may be, the question 

then arises as to whether or not individual 

owners in this State have a legal priority 

in reoording either of these brands as holding brands, even though the said recording 

was done prior to, or since the passage of 

these separate Acts referred to. Can these 

owners legally continue the use of either 

of these brands as holding brands, even 

though the Acts of the Legislature became 

effective later than the original recording 

in some instances? 

"This matter has caused considerable 

confusion in our field work, as to positive 

identification of animals bearing either of 

these brands, which by Legislative Act indicate diseased animals." 

The pertinent part of Article 1525b, Section 

14, V.P.C., provides: 

"All cattle that show a positive reaction when tested for tuberculosis by a veterinarian recognized by the Live Stock Sanitary 

Commission for the performance of such testing 

are hereby declared to be a public nuisance 

and a menace to the health of other live stock 

with consequent aad serious danger to human 

life and health. It shall be the duty of said 

veterinarian to brand or have branded all of 

said positive reactors IT' on the left jaw with 

a hot iron, which letter 'T' shall be not less 

than three inches high. s . .n 

Article 1525d, Section 1, V.P.C., provides: 
Hon. D. A. Davidson, paged 3 (V-1372). 

%hen an accredited representative of 

the Livestock Sanitary Commis~sion of Texas 

or an accredited representative of the 

United States Secretary of Agriculture or 

an authorized veterinarian makes an agglutination blood test for Bang's Disease of 

cattle in this State he shall furnish to 

the owner of such cattle in writing data 

showing that certain identified animal or 

animals have reacted to the test and are 

affected by the disease, it shall be the 

duty of the said authorized veterinarian 

or accredited representative of the Livestock Sanitary Commission within fortyeight (48) hours to brand each reactor or 

animal affected with the disease on the 

left jaw with the Letter 'B' and place a 

metal tag in the ear of such animal with 

numbers thereon and report in writing to 

the Livestock Sanitary Copission of Texas 

the numbers on such tags. 

Article 1525e, Section 1, V.P.C., provides: 

"It shall hereafter be unlawful for 

any person to sell or otherwise dispose 

of any cattle for milk purposes when he 

knows or has reason to believe said cattle 

are infected with Bang's Disease. If any 

person shall sell or otherwise dispose of 

any cattle having the brand of the letter 

pBt on the left jaw, the same shall be taken 

as prima-facie evidence in any Court of competent jurisdiction, that such person knew 

that said cattle was infected with Bang's 

Disease." 

The purpose of the above statutes is to help 

protect the cattle industry and the public from the r&v,- 

ages of the spread of tuberculosis and Bang's Disease. 

They are enacted in the exeraise of the police power of 

the State and even though the rights of individuals are 

curtailed to some extent, the action will not be questioned except where the exercise of the power is clearly 

unreasonable and arbitrary. City of West University Place 

v. Ellis, 134 Tex. 222, 134 S.W.2d 1038 (1940). When any 

law has the effect to protect the public health or to prevent or minimize economic waste in such an industry as 

that of stock raising in this State, it IS for the pub110 
hon. D. A. Davidson, page 4 (v-1372) l 

welfare and benefit of the people of this State. Weal v. 

Boon-Scott, 247 S.W. 689 (Tex. Civ. App. 1923); 39 Tex. 

Jur. 377, Stook Iaws, Sec. 62. 

Before the passage of such statutes any person could adopt, use, and record the letters 'T" and 

%", to be placed on the left jaw of their animals, 

as individual holding brands under Article 6890, V.C.S., 

whloh provides as follows: 

"Every person who has cattle, hogs, 

sheep or goats shall have an ear mark and 

brand differing from the ear mark and 

brand of his neighbors, which ear mark 

and brand shall be recorded by the county 

clerk of the county where such animals 

shall be. No person shall use more than 

one brand, but may record his brand tn as 

many counties as he deems necessary. 

However, since the Legislature has enacted 

Articles1525b, Section 14, and 1525d, Section 1, V.P.C., 

designating and settingapart the letters "T" and %" for 

use as brands set out therein, we 'are of the opinion 

that these provisions Impose an exception under Article 

6890 above or a repeal by implication of so much of that 

part of Article 6890 as would allow persons to use such 

designated letters as holding brands, and that persons 

no longer can legally use such letters on the left jaw 

of animals as holding brands. To hold otherwise would 

result in considerable confusion in the enforcement of 

the statutes designed to protect the cattle raising industry and the public welfare of the people of this 

State. The use of the msrkings for diseased animals 

is clearly intended to be exclusive and their use for 

other purposes is unlawful. 

39 Tex. Jnr. 137, Statutes, Section 73, provides: 

'Although it contains no repealing 

clause, a new enactment abrogates any 

former act on the same subject, with 

which It olearly and manifestly conflicts, 

to the extent of the inconsistbncy or repugnancy between the two. This constitutes a repeal by implication, or, more 

properly speaking, by necessary implication." 

- 
Hon. D. A. Davidson, page 5 (V.-1372) . 

Also see 1, Sutherland, Statutory Construction 

(3rd Ed, 1943) 461, Section 2012. 

It is pointed out that no statute literally 

prohibits the use of ,the brands described In Articles 

1525b, Section 14, and 1%5d, Section 1, V.P.C., for 

purposes other than to Identify diseased cattle. However, we believe that, such prohibition exists by necessary Implication when the mechanics set up for effecting the purpose of such statutes are considered. 

The repugnancy here involved is only as to 

the use of the letters 'T" and %" on the left jaw, 

and since the Legislature has set them apart for a 

designated use In the interest of the industry and 

the public, we hold that no person can legally continue to use such letters on the left jaw as a holding 

brand under Article 6890, V.C.S., even though such person had recorded such letters before the enactment of 

Articles 1525b, Section 14, and 1525d, Section 1, V.P.C. 

This opinion is limited strictly to the legality of such continued use of the designated letters by 

such owners. We express no opinion as to the legal 

consequences of a continuation of the use of such markings in an illegal manner. However, self-interest 

should sufficiently discourage their use by cattle 

owners as private brands. 

SUMMARY 

Individual owners cannot legally continue to use the letters "T" or 'B" on 

the left jaw of their cattle as holding 

brands In view of Articles 1525b, Section 

14, V.P.C. (Acts 4ist Leg., 1st C.S. 1929, 

ch. 52, p. 114), and 1525d, Section 1, V.P.C. 

(Acts 45th Leg., R.S. 1937, ch. 431, p. 875, 

as amended, Acts 50th Leg., R.S. 1947, oh. 

262, p. 461), which provide for the use of 

the same letters on the left jaw of cattle 
Hon. D. A. Davidson, page 6 (V-1372). 

as brands for cattle having tuberculosis 

or Bang's Disease. 

APPROVED: 

Ned McDaniel 

State Affairs Division 

Charles D. Mathews 

First Assistant 

Yours very truly, 

PRICE DANIEL 

Attorney General 

-Clinton Foshee 

Assistant 

CF:jmc 

-