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 Office Building 

Austin, Texas 

Opinion No. 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 

designate and begin brucellosis work 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 Commission may, 

at its discretion, postpone the beginning of 

brucellosis work in counties which have,submltted valid petitions until such time as it 

is economically feasible and scientifically 

sound to begin such work, or is it mandatory 

that the Commission designate and begin brucellosis work 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 appropriations and benefits 

should be available to and apply to the Texas Animal Health 

Commission. 
Dr. i?. G. Garrett, Page 2, (WW-835) 

The pertinent provisions of Section 23A, Article 1525b, 

Vernon's Penal Code, concerning your question are set out as 

follows: 

"(1) Purpose. It Is the purpose of this 

Section to bring about the effective control 

and eventual eradication of bovine brucellosis In the State of Texas and to accomplish 

that purpose in the most effective, practical 

and expeditious manner." 

"(4) When seventy-five percent (75%) of 

the cattle owners in any area or county In 

this State, as reflected on the current tax 

~0116, owning at least fifty-one percent 

(51%) of the cattle within that affected 

area or county, as reflected by said tax 

rolls, shall 'petition the Livestock Sanitary 

Commission of Texas to have such area or 

county, designated as 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 county boundary lines 

it shall be designated as a 'County Brucellosis Control Area,, the name of the county 

identifying the area." (Emphasis added) 

“(5) In the event that, for any valid 

reasons, the Livestock Sanitary Comlssion 

of Texas should decide that conditions within 

and surrounding the county originating such 

petition make It impractical to operate a brucellosis control area 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 .tary Commission 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 Commission was 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 county 
Dr. R. G. Garrett, Page 3, (w-835) 

brucellosis control areas, by the conditions existing in 

particular areas and the needs as to effective controls on 

a statewide basis rather than governed by the date a 

petition for the.establishment of a control area might be 

filed with the Commission by cattle owners In a particular 

area. If it is determined by the Commission that a control 

area is more urgently needed in a county filing a valid 

petition later than a county where there is no great emergency, this determination would be controlling rather than 

the filing dates of the two valid petitions and there would 

be no abuse of discretion on the part of the Commission. 

The Legislature has authority under the State's police 

power to create the Livestock Sanitary Commission and to 

empower it to establish, maintain and enforce quarantines 

authorized by 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 contagious disease 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 stated as follows: 

" s the principal exercise of the leglslative function is the determination of principles in the establishment of basic policy and 

that the remainder of a statute merely outlines 

in such detail as seems desirable the machinery 

by which the basic principle is made effective. 

The legislative determination of all these details is impossible and thus the creation of 

special administrative agencies for their determination is, in fact, a basic policy determination by the legislature. Thus, the grant to 

these agencies of rule-making power consistent 

with the general principles announced is not a 

delegation of the principal legislative functlon-- 

that of policy determination--but is at most the 

delegation of a secondary legislative function-- 

the function of making structural adjustments, 

establishing procedures and regulations for the 

achievement of the principal policy. . o *" 

Statutes which are enacted for the protection and preservation of public health give wide latitude in rule-making 

powers to an administrative body such as the Texas Animal 

Health Commission. In 1 Sutherland Statutory Construction, 

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 expert knowledge of the 

field is necessary, a legislative delegation 

with general policy standards is valid. 

"The validity of a particular standard 

therefore depends 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 discretion has been left to administration. tt 

. . . 

Also, as set out in Subsection 4, Section 23A, when 

certain people "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 center when a valid petition has 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 provision as to the 

filing of a petition mandatory and the provision as to 

the establishment of 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 effective brucellosis 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: 

"Where both 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 legislature realized the difference 

In meaning, and intended that the verbs 

used should carry with them their ordinary 

meanings. Especially is this true where 

lshallt and 'may' are used in close juxtaposition in a statutory provision, under 

circumstances that would indicate that 

different treatment is Intended for the 

predicates following them. O s *" 

It Is apparent from the foregoing statutes and 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.and begin 

brucellosis work in counties and areas in any manner it may 
Dr. R. G. Garrett, Page 5, (~-8%) 

see fit, this being entirely discretionary with the 

Commission, so long as the stated purpose of this act to 

control and eradicate bovine 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 

discretionary with the Commission, 

and it is not mandatory under the 

provisions of Section 23A, Article 

1525b, Vernon's Penal Code, that the 

Commission designate and begin brucellosis work in counties in the 

order In which valid petitions are 

received. 

Very truly yours, 

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