## THE AYCTO OF TEXAS

Honorable H.Q. Sibley, D.V. M. Executive Director Texas Animal Health Commission 1020 Sam Houston State Office Building Austin, Texas 78701 Dear Dr. Sibley: Opinion No. H- 148 Re: The requirement that

brucellosis infected cattle be branded and slaughtered. Article 152513, $23A, V.T.P.C. You have asked whether the Texas Animal Health Commission can require slaughter of brucellosis diseased animals within fifteen days of their designation as a “reactor. ”

Section 23A ofArticle 1525b, Vernon’s Texas Penal Code, provides:

“(I) Purpose. Itis the purpose ofthis 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.

‘I.. . .

“(18) Should evidence ofinfection be disclosed in any ofthe animals required to be tested, such animals that react to the test shall be fire branded with the ,letter ‘B’ onthe left jaw and such cattle and herds shall be handled in accordance with regulations of the [Texas Animal Health Commission] which sha,ll provide for the issuance ofquarantines, the manner, method and system of disposing of reactor cattle, the testing and retesting ofinfected herds, and the cleaning and disinfection ofpremises following removal of reactor cattle. ”

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The Honorable H. Q. Sibley, page 2 (H-148)

Among the regulations and procedures adopted by the Texas Animal Health Commission is “Plan A - Voluntary Cooperative Agreement for the Control and Eradication of Brucellosis in Bovine Animals. ” Section II provides in part:

“2. All animals designated as reactors must be fire branded with the fetter ‘B’ onthe left jaw as required by Sawand disposed ofwithin fifteen (15) days by consigning them for immediate slaughter to establishments maintaining Federal, State or Municipal veterinary post-mortem inspection. ” You have informed us that the acceptance ofPlan A is aprerequisite to the issuance ofa Grade A milk permit by the State Department ofHealth.

By the express language ofthe statute, the Legislature empowered the Commission to determine the manner, method and system ofdisposal ofreactor cattle. Itis clear that the Legislature has the power to give this authority and discretion to the Commission. Mulkey v. State, 201s. W. 991 (.Tex. Crim. 1918);Attorney General Opinion WW-835 (1960).

We do not believe that the method chosen for the identification and destruction of contaminated cattle is violative ofany constitutional protection. See specifically, United States Constitution, Amendment 14; Texas Constitution, Article 1, $$17 and 19. The exercise of the police power of the State in designating diseased cattle and consigning them for slaughter is not a constitutionally proscribed “taking” or “damaging” ofproperty. Nunley v. Texas Animal Health Commission, 471 S.W. 2d 144 (Tex. Civ.App. San Antonio, 1971, error ref’d, n.r. e.). Likewise, there is no constitutional defect ina procedure which permits summary administrative action subject to later judicial review in the interest ofhealth and safety. North American Cold Storage Co. v. City of Chicago, 211U.S. 306 (1908); Nunley v. Texas Animal Health Commission, supra.

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The Honorable H.Q. Sib:Ley, page 3 (H-148)

SUMMARY The Texas Animal Health Commission may require the slaughter ofbrucellosis infected cattle within fifteen days ofthe determination of infection. Very truly **yours,**

Attorney General of Texas APPROV.ED: ‘

DAVID M. KENDALL, Chairman Opinion Committee

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