THE 

## ATTORNEYGENERAL
OF TEXAS

AUSTIN ii.TEx~s

WJLL WILSON A-l-l-O-GENERAL my 4, 1960

Dr. Ft.G. Garrett Executive Director Texas Animal Health Commission State OfficeBuilding Austin, Texas OpinionNo. W-835
Re: Whether it Is mandatory under the provisions of Sec. 23A., Art. 152513,

Vernon's Penal Code, that the Texas Animal Health Commission designateand begin brucellosiswork in counties in the order in which valid Dear Dr. Garrett: petitions are received.

Your letter of March 24, 1960, requesting the opinion of this deDartmetIt on the matters stated therein reads in part as f0ii0ws:

"Specifically,an opinion is desired on the subject of whether the Commissionmay, at its discretion,postpone thebeginning of brucellosiswork in countieswhich have,submltted valid petitionsuntil such time as it is economically feasible and scientifically sound to begin suchwork, or is it mandatory that the Commissiondesignate and begin brucellosiswork in counties in the order in which valid petitions are received."

name - Article 7009 of Vernon's Civil Statutes changes the of the Livestock Sanitary Commission of Texas to the Texas Animal Health Commission and provides that hereafter all or any references thereto or laws relating to the Livestock Sanitary Commission shall apply to the Texas Animal Health Commission,and all appropriationsand benefits should be available to and apply to the Texas Animal Health Commission.Dr. i?.G. Garrett, Page 2, (WW-835)

The pertinentprovisions of Section 23A, Article 1525b, Vernon's Penal Code, concerningyour question are set out as follows:
"(1) Purpose. It Is the purpose of this Section to bring about the effective control and eventual eradicationof bovine brucellosis In the State of Texas and to accomplish that purpose in the most effective,practical and expeditiousmanner."
"(4)When seventy-fivepercent (75%) of the cattle owners in any area or county In this State, as reflected on the current tax ~0116, owning at least fifty-onepercent (51%)of the cattlewithin that affected
area or county,as reflectedby said tax rolls, shall 'petitionthe Livestock Sanitary Commission of Texas to have such area or county, designatedas a modified certified brucellosis free area, the Livestock Sanitary Commission of Texas x declare the county or area to be a brucellosls control area. If such-

area follows countyboundary lines it shallbe designated as a 'CountyBrucellosis Control Area,, the name of the county identifying the area." (Emphasisadded)

“(5) In the event that, for any valid reasons, the Livestock Sanitary Comlssion of Texas shoulddecide that conditionswithin and surrounding the county originating such petition make It impractical to operate a brucellosis controlarea within the boundaries of such county, then the Texas Livestock Sanitary Commission is authorized to add additional territoryto such county area in reasonable amount, O s elf
"(11) In order to effectuate the provisions and purposes of this Section', the Livestock San1 .taryCommission of Texas is hereby authorized to promulgate such rules and regulations and to require such reports and records as may be necessary D o *"
Clearly, the Texas Animal Health Commissionwas authorized by the Legislature to establish its own rules and regulations in bringing about the effective control of brucellosis in Texas and may be governed, In establishing the countyDr. R. G. Garrett, 

### Page3, (w-835)

brucellosis control areas, by the conditionsexisting in particularareas and the needs as to effective controls on a statewidebasis rather than governedby the date a petition for the.establishmentof a control area might be filedwith the Commissionby cattle owners In a particular
area. If it is determinedby the Commission that a control
area is more urgently needed in a county filing a valid petition later than a countywhere there is no great emergency, this determinationwould be controllingrather than the filing dates of the two valid petitions and therewould be no abuse of discretion on the part of the Commission.

The Legislaturehas authorityunder the State's police power to create the Livestock Sanitary Commission and to empower it to establish,maintain and enforce quarantines authorizedby law, as it may deem necessary,as well as power to authorize the Commission to make reasonable rules and regulations to prevent the spread of contagiousdisease among livestock. Mulkey v. State, 

### 83 Tex. Crim. 1, 201 S W 

### 9 ‘(1918);

Grandy v. State, a'/ Tex. Crlm. 197, 220 s.w: 33; 

### ?1920).

In 1 Sutherland Statutory Construction, 3rd Edition, Page 

### 75, Section 313, it Is statedas follows:

" s the principal exercise of the leglslative function is the determinationof principles in the establishmentof basic policy and that the remainder of a statutemerely outlines in such detail as seems desirable the machinery by which the basic principle is made effective. The legislativedeterminationof all these details is impossibleand thus the creation of special administrativeagencies for their determination is, in fact, a basic policy determinationby the legislature. Thus, the grant to these agencies of rule-makingpower consistent with the general principlesannounced is not a delegation of the principal legislative functlon-- that of policy determination--butis at most the delegation of a secondary legislativefunction-- the function of making structuraladjustments, establishingprocedures and regulations for the achievement of the principalpolicy.

. o *"

Statuteswhich are enacted for the protectionand preservation of public health give wide latitude in rule-making powers to an administrativebody such as the Texas Animal Health Commission. In 1 Sutherland StatutoryConstruction, 3rd Edition, Page 

### 77, Section 314, it is further stated:. ‘

Dr. R. G. Garrett, Page 4, 

### (WW-835)

II

. . . Where, however, frequent adjustment or detailed expertknowledge of the field is necessary,a legislativedelegation with general policy standards is valid.

"Thevalidity of a particular standard thereforedepends primarily on the field of activity regulated. Thus, in the field of public health, safety, and morals general and Indeterminative standards of policy have usually been sustained 'and wide discretionhas been left to administration. tt

. . . Also, as set out in Subsection 4, Section 23A, when certainpeople "shall"petition the Texas Animal Health Commission to have a certain area designated as a brucellosls control center the Commission 'may"declare a county or area to be a control centerwhen a valid petitionhas been filed by 

### 75s of the citizens owning 

### 51%of the cattle in a county or area of the State. The use of the verbs "shall"and "may"make the provisionas to the filing of a petition mandatory and the provision as to the establishmentof control areas only directory and It follows that the commission is given needed discretionary powers in determining in which area work should first begin in carrying out an effectivebrucellosis control program regardless of the filing date of a petition.

In 3,Sutherland Statutory Construction, 3rd Edition, Page 

### 116,Section 

### 5821,it is stated as follows:

"Whereboth mandatory and directory verbs are used in the same statute, or in the same section,paragraph or sentence of a statute, it is a fair inference that the legislaturerealized the difference In meaning, and intended that the verbs used should carry with them their ordinary meanings. Especially is this truewhere lshalltand 'may'are used in close juxtaposition in a statutoryprovision,under circumstances thatwould indicate that different treatment is Intended for the predicates following them. O s *"

It Is apparent from the foregoing statutesand authorities and, therefore, the opinion of this department that the Texas Animal Health Commission,under its rule-making powers granted by the legislature,may designate.andbegin brucellosiswork in counties and areas in any manner it mayDr. R. G. Garrett, Page 

### 5, (~-8%)

see fit, thisbeing entirely discretionarywith the Commission, so long as the statedpurpose of this act to control and eradicatebovine brucellosis is effectively carried out.

SUMMARY

The Texas Animal Health Commission may declare a county or area to be
a brucellosis control area if and when it is deemed practical to carry out the purpose of this Act, the time and place being entirely discretionarywith the Commission, and it is not mandatory under the provisions of Section 23A, Article 1525b,Vernon's Penal Code, that the Commission designateand begin brucellosiswork in counties in the order In which valid petitionsare received.
Very trulyyours,

WILL WILSON ;;xrza+

Iola B, Wilcox Assistant

IBW:mm

APPROVED:

OPINION COMMITTEE:

W. V. Geppert, Chairman

Wallace Finfrock John Reeves MariettaMcGregor Payne Marvin F. Sentell

REVIEWED FOR THE ATTORNEY GENERAL

BY: Leonard Passmore