OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

GRO”ERSELLER* 

ATTORNEY GENERAL 

Honorable Claude A. Williams 

Chairman end Executive Director 

Texas Unemployment Compensation 

Austin, Texas~ 

Dear Sir: Re: Opinion No. 

Were service 

tine farm e 

compensatio 

ed on turpen- 

?L 

employment 

d r atea 

questions. 

We have your letter 

as r0u0w8: 

.L. 

lations and 

the Cammiss 

labor' lnolaaes all 

on a farm in oonneoof thesc~l, the hare raising, :f,eeding oti. 

estoak, bees, and poultry; or 

etloy$th the 

iala;.' ioh were 

farm, 

transp~orting, 

also the paoklng, paokaging, 

or.marketlng of those materials 

or artlole.8. Such servioes do not oonstituta 

tagrloultural labor', however, unless they are -:. 
Honorable Claude A. Wllllams, Page 2 

performed by an employee of t&a 6wner OP tenant 

of the farm on whloh the materials ln their raw 

or natural state were produoed, and unless snoh 

prooessing, paoklng, paokaglng, transporting, or 

marketing-is carried on as an inoident to ordiaarg 

farming operations as distinguished tram manufaoturing or commercial operations. 

‘As used herein the term ‘farm’ smbraoea the 

farm In the oralnarlly aooepted sense, and inoludes 

stock, dairy, poultry,. fruit and truck farms, plantations, renahe ,ranges, end oroharas. The term 

‘farm* does not embraoe lumbering and roredtrp Industry ror the purpose of thie Act.” 

*On Ju4 2~. 19 

above r6gulatian an ii 

lathn 25;, 

Regulation C& 

.,. 

‘The term *agrloultural labor’ includes all 

services pertormed 

. _’ 

(1) By an ~employee, on a E~ZIIL, in ‘~ooIqe0tl.o~ 

nith l&e. oultlvatlon or the so&l& the harree@ 

of orops, or.th$ raieing, $eeaihg;:tar managemn “& 

or llyeetqok, bees i and poultqt @r 

., 

(2) By an 5mploy5e in ootieotion ritli the 

prooeesIng of ag%lolen from mat5rial.n which rclre,~ 

prodaoed ti h 3arm, al50 the paoking, 

trana 

art10 P as. 

ortlng, or marketing of thee5 m r”erlals -- or, 

Sri&: servl~elr~do not oonatitute *agrLii 

oulteal $abor’,.however, anlear theyz~5 p5.r~ 

formed by, an 5mplo~55 of the owner OT tenant of 

the farmxui whlah ,thexia~allhl.s in thdr raw or 

natural~etate were podtied; and ~151~s suoh prooeselng, pasklng, paokaging, trans orting, 

x 

q,~ 

marketing Is carried QII as e.n in01 ent to Or86narY 

iarmIng opesatlons as dlstlngulshed rrom nanufaoturlng or oommerolal operations* 

“As used herein the term ‘farm’ embraass the 

farm In the ordinarily, aooepted sense, and Innlades 

stook, dairy, ponltrp, rrult and truck farms, 
Honorable Clahde A. Williams, page 3 

., 

lantatlons, ranohes, ranges, and orohards. 

!&I e term *farm* dors net embraoa Jqmberlng and 

rorestrp industry for the purpose of this Aot.t 

Regulation 25 

'Agricultural Packing and Marketing Assoolatlons Sec. 19 (g1 (6) (D) 

,The iaot t&t an lndlvldual is engaged ln 

handling farm proauots does not or ltselr make the 

services performed for him fagrloulturalt. Serdoes are often perrormea by employees in oonnectlon with the paoklng, processing, packaging, 

transporting or marketing for sale to oonsumers 

or farm products whloh are~not a part of oralnary 

farmlag operations but a:part o$: aomierolal~.tm. 

manitfaottiring operations. ~*ma&~s~h~-ser~le*r ~' 

are pertorpsd bye inbltld~ls~.~o'~ara:~~~~lo 

sn ae~oolation~cir ~prodaoclra,~-ef~,thB~~.:t 3; 

Hi,:b$ ‘: 

a"' 

produots in ~oonneotlonwith.whloh the seroloee 

are perrormed were produoed by the members ,of 

suoh aeaooiatlon, the aerrloea of sooh employees 

are not exempt as agrioultural labor, since the 

indlrlduale are employers ,of the assoolatlon and 

not of a-partloular, produo5ti.t 

. . 

*Gn Ihatlarr 1, 194Dphc4 Gommlt~elon rwoiuded 

Reg&tlon Z?& aad Regalatlok 25, abqljte. Thor6 ha8 

been no~Gommlsaion Regulation 011 thle subjsot~ nlnoo 

the last mentioned-date. 

l Dpa.the anaotment oi the Unamploflasnt Gompensatlon Aot this Commlsslon began oolleotlng,taxes 

iron the &gate Haml Storea, Ino. Its oontinued 

to oolloot unemploymssat taxes rrom the named-employer 

until Sanuary 1; ~1940, when 10 relieved the employer 

of liability begiunlng January 1, 1940, in aooordanoe with Its deoislon dated Maroh 19, 1940, tihloh 

read8 in part: 

*It la therein stated that *The Wieergata Naval 

Stores, Inoorporated, .operated what le~oanmonlp 

called a turpentine farm near Wlergate, ln Newton 

County Texas. The operation of a turpentine oamp 

consists or the making, ~gathering and stilling ‘Or 

crude gum into gum splrlts Andy resin. This operation is accomplished by chipping a live pine tree 
_’ 

,~.’ 

Eonornble Claude Ai UIlllams,, Page & 

a nd pq l o lng ther ioa n o upint. o wh l.ao rh ude gum 

Is oollsoted. ‘, Xh%s 5mtl5 ~gti 1s psrlodlo5lly 

gathered and transported to the anmp st$ll 

where same la pzooessed into the gum spirits 01 

turpentine and resin. The orude gum is ordinarily 

harvested or oollected during eight or nlne,montha 

of each calendar year. The persons performing the 

serrloe abovementioned are unskilled laborers who 

work urider the supervision oi a. foreman.” 

Wpon the basis of the lnformatlon presented, 

it is the opInlon or this Commlsslon bnd it hereby 

rules that services perrormed for you, of the kind 

specified above are servloes which oome within the 

exoeptlon afrorded agrioultural 1,abor 

l l. Under the T5xas Vn5m loyDient 

Act and the Beg&t&O85 .-lea 8 

Ofimpensatlon 

ed,‘~ w5$5 end a~ the 

serrioee perio2meQ for the &inplQytir ag210tit~lr~5 

labor and st5mpt? 

*2., If, suoh servioes bid oonati$utta agrloalture labor prior to January 1, 1940, 

of contributions pa14 be mad5 as to? 

due after ADrIl 1. 19397, (b) taxes 

April 1, 191397 - --- 

my a *sfti.na 

.,(a] t+xes 

au0 .prSor to 

"3. In the event that a refund wexe due tiergate Naval Stores, Inoorporatcd, for taxes pald 
. 

. 

Honorable G1auds.A. WIlllams, Page 5 

thi8. Commission whloh mire due prior to April 1, 

1938, exoept ior’ the taot that Section 8 of the 

Unemployment Compenaatlon Aot , Ar tl 01s 5221b-6, 

Vernon’s Revised Civil Statutes. zrerented suoh 

r~efund, would an act of the legisiature .makIng 

appropriation or the amount or euoh refund and 

authorizing payment to the employer be valid? 

*4. 1l Question No, 3 is answered ‘yes’ 

how would such payment be aooompllshed and out 

or what fund would it be paid?” 

Article 5221b, Revised Civil Statutes of Texas, 

provides that servfoes performed for wages under oer.taln 

oiromastqoee constitute employment. under the Texas Dnemployment Gcapensatlon Ant 

to the GosmiIleIoxi thst.;thep ~.: 

tloha iiom ~fhd A&.~ Among 

5221b Ie IJeotl~on 17 (g,)~:(5) 

~~ ,~~; 

In view of this exemption the Commlsslon aotlng 

under the authority of Article 5221b, Seotlon 9, enacted 

the quoted regulations. 

The regulation dIaolosae that tie Ga&esloa Intdndsd to llmlt the~tapa:.ragrloultorar.labQr” to that .&?&ox 

pertormed on a farti,‘fia defined br~,ther; Xa all~,Inrrtanore it 

is held that the term *farmu Is to be uudrretood. Ix Its ordinarr and. fo pular 8anae and that iz$‘~a traot o$ laud 

tissd tar ra aleg oroplr~ an& reari 

3 

804 ,Gkwdon- Y. 

Buster, 257 8: W. 2201 ll3 %!a, ,3 16 

page 248. 

2) Wo;de & Phrasds, 

The 8tat;es:::: of Golorado and Gounsotlout have adopted 

regulations wlth ~substantlally the sams wording as them rsgulatlons of the Texas Unemployment Compensation %amleslon 

regaralng agrioultural X.:abor* %:a suit for the oolleatlo~ 

of taxes assessed against q oonoern operating mushroom sheds, 

styled Great Western EushroomGompany V. hIustr$al Gommlaslon, 

82 Pao~; (26) 751, theSupreme~ .Gourt of Colorado said: 

“We~oannot think ,the promulgated regulation 

is other than~ln keeping wlth ~the clear intent ai 

the enactment .v 

.,. 

; .: 

__-. 
Konorable Claude A, WUllama, Page 6 

The oourt further disowaad the tact that the opera-. 

tions in question ware oarrled out throughout moqt 0r ths peer, : 

a&the parposs In the axamptlon of agrloultural labor was 

that it was seasonal work thus It should not be contended that 

the Legislature intended to exempt this type of anployment. 

The court held that this was not agrloultural labor as defined 

by the Commission. 

In the oase of Park Floral Company V. Industrial 

Commission, 91 Pao. 492, In the Supreme Court of Colorado, 

the demand was made upon a floral oompany for payment of taxes. 

The company contended that this operation was within the exsmption of agrloultural labor and further that the promulgation 

of the Commission ruling constituted an arbitrary attempt by 

the Commission to restrlot and limit the ordinary meaning of 

the term *ag.rloultural labox”. The eorurt .thsrs said that this 

objeotlon.~Is roreoloerd by the reoent zonounocupent @f that ::..~ 

cow-t l.q the oam of: (Priat We&em Mm, %I 

,. 

trial Ccmmlasl~,‘~su~ra~ ~~l%e ooart in 

,q,oq Qom 

thl~~,ins g. ..~. ang,:*i ~Q.U~ ~. ~, anob:altWhdld 

that the’ dalegatlon’of the autherlty to enaot r’uies and regu; 

latlons was not an Invalid delegation of legislative authority. 

In the dase or Ii Duys 6c Co 

5 Atl. (26) ,23, the Supmu& Court o? 

et al V. Tone, 

&%%O~t held that 

the regulation of the ConmIssion of Connedflout to~be valid, 

and that it did not riolats ths aqua2 protestion or due prooem olausas or the Ganstltutlon. 'Bte .ooart ti thXs opinlmi 

redswed the definition or *iarm laborer* and *agr$oulture*. 

Aoting wider the s=e rule msklng p~wsr as lt 'provided ,in the Colorado Unemployment .Watate, the Tsxai Comaisslon enaoted the mme regulation as that of Colorado, 

Your regulations or Deosmber 5, 1936, and July 2, 

1937, stated ihat they lntsndsd the teSln wfarma to ambraoe, 

end undpr this dethltlti the turpsntlhe industry would not 

be *agrIoultural labor*. The power or the Texas Commlsslan 

to ennaot their regulations-Is awtained by the Ii. Duys k Cornpany .snd Park Floral aaees, supra. However, the aotlcm of the 

CommIsalon an Maroh 19, 19J,O, In reaoinding its rsgulatlon, 

refleots a ohangs In their attitude. They must hare Intended 

that the term should have the broadest meaning in liner with 

the modern trend. 

You have furnished a photostatlo oopy of the findings oi raot and oonoluslons of law of the Distriot’ Court 

of the United Statas for the Middle Distriot of Georgia in 

the oase’of Gso. I. Shelton, et al, plaintiffs, VS. Marion 

H. Allen. 
Honorable Claude A. Wllllame, Page 7 

The applloant oites the ruling or the oourt as a 

basis for the olaimed exemptioni But, let it be reoogulzed 

that the Statutes of Texaa.oontain no auoh exemption as that 

of Title 12, Section IlAlj, U. S. C. A. Further, this oaae 

was disposed of on prooedural grounds without passing on the 

merl ts. 

In the oasa of United States Y. Turner Turpentine 

Company in 111 Fedi (26) IJM, an opinion of the Clroult Court 

of Appeals for the Fifth Clroult, holds that the producers of 

crude gum are engaged in agrioultural labor. We call your attention to ths raot that this deolslon is influenced, if not 

based upon the fact that Ceorgla in 1939 had enaoted a statute providing that all orlglnsl produoars of crude gum and 

their employsas ware depaarad to be farmsrs’lnso $ar as any 

statutes or the Stats, ralata& : Ho euoh*~:s’tattita ox%&, or he 

ever been on $ha~~statuttc ~QQ 

T 

of Tsxal;‘.,i T@at~ aorfff .~s.f’ur.~~~~, 

ther lnfluenaad bl the Wdera Statuta,‘.on tki’ib stibfhti~ 

,~ 

The dtstlnotion between farming and that of out&g 

and logging timber was reo,ognlzed by the Supreme Court of 

Tennessee In the oaee of Robinson V. Stacklay, 61 S. W. (Za) 

677. 

In the aasi Pratt ,v. .Clty oi,Maaan, 1% a.,&. .19lj 

the Uourt of Ap,psals~ of Claorgia wasp ,oonstruing a mtinla2pal. .~ 

> 

ordinsnae ‘,ot thr cltr or Yaeon, tilsh-r.aqulred that mar&ants : 

or ‘others outside. the blty limits delir6rlng ~gooda la the 

City to take out a dray lloonsd fur eaoh w&g& used in the 

delivery. The facts ln that oase were that %he lndlrldual Sn 

question was a farm& ln ,that ha raised ‘truok. ohlakens and 

ducks on his farm. Also on said rarm was a m1 ’ nara.?. water well 

from whloh the individual took the mineral water and delivered 

and aold, same ,wlthln the oity~ llmlts~ of ihe City of Maoon. 

The court concluded that suoh license would have to be begtired 

under tha‘taota~ and stated as rollowst 

‘1. That said mineral water wa:s not a farm 

product withln tha.meanl.ng ,of seotlon 1851 of the 

Civil Code of 1910 and that. the requirement of 

said ordlnanee as TV o taking out a lioense zas applloable to plaintiff In error. 

“2. That the ract that plaintlfr in error 

drew and bottled sa,id wster from a well located 

on his own land, and that he was also engaged In 

raising truck, chickens, and ducks, whioh were 
. 

Honorable Claude A., ~llllama, Page 8 

also delivered by means of, said truok, dld not 

-relieve him from procuring the ‘dray’ or oooupatlon lloansa as required by said ordlnanoa.* 

In the case of Great Western Mushroom Company vs. 

Industrial Comm., 82 Pao. (26) 751, the Supreme Court of 

Colorado 5.n construing a similar statute said that the Lagislature sought only to exempt seasonal labor suoh as farm 

labor. This applloant, by its own admission, opar.ates nine 

or ten months a year, and there is no showing that some work 

is not done throughout the tmlve months of aaoh year. Can 

it than be said that Is only seasonal labor as defined by 

the Commission1 a regulations? 

The statutory authority ror the regulations of 

~Deo, 5, 1936,. and’fuly 2, 1937, is 

The oonstltutlonaUty.~ of .rubstan$l ar 

asant sties. Artlola 522&b-9( a) .,, 

l$tha s+nw ~egtilatl&ik .: 

haa besn uphbld. by the. Suprama 36urt .af Ooldr~$ulo~ In. park 

Floral Co, v. Industrial Uomm.~, 91 Pa@. (26) 492, and by the 

yp;;;t.Court or Conneotlout in the oasa~of H. Duys & Company 

. , 5 Atl. (2d) 23. 

The authorities cited, together with that of Great 

Western Hushroom Company, Y. Industrial Cokmlsslon, supra, give 

ample support for the regulation and determination of your 

Co~111&3slon prior to iknuary Jr 1940. 

The’oourts in the Park IQoraLand H. Duys & Company 

oases, aupra, 5ay that by the evolutionary prooassse attendant upon our present day buaiuara methods many aotlvitles 

formerly ambraoad in tarmlng hava beoome spealalleod or ramoved rrom the iarm. 

Your rlrat question asksr 

Wndar the Texas Unsmploymant Compensation 

Aat and the Regulat-lons lndlahtad, were and a.0 

the sarvloas performed for the employer agrloulture labor and exempt?” 

It la oar opinion that the dotermination of llablllty by the Commlsslon upon the taxes aoorulng prior to January 1, 19&O, was supported by the resolutions quoted. That 

being true, there can be no refund. Therefore, it is unneoesasry to answer your questions 2, 3 and J, regarding refunds. 
,.% .;; 

3 ‘~ .‘. 

..- 

Honorable Claude. A. Wllllams, Page 9 

A part 03 four rirst question ia an inquiry 0r the 

present llab5.l.lty .ot .,the Wlargata ,Haval Stoma. ror unatnplogment taxesa 

There being no prrsant regulation darlnlng ‘agrim 

aultural labors*, we must determine the soopa of that term. 

The Commlaslon plaoes no llraltatlon on the term. In answarLng the queatlon of liability prior to January 1, 1940, we 

reoognlzad the llmltatlon you plaosd on the term *agrloultural laboP.by the Commlaslon~a regulations spaolfylng servloea on a farm.’ The word l agrloulture* has a broader meaning than farming, In Ra Rodgers, 279 9. W. 800. Lowe Y. North 

Dakota Workmanta Compensation Bureau, 261, W. W. 867. Vna 

may be employed ln agriculture and yet not be a farmer ln the 

ordinary sense of the term, nor even a farm laborer as the 

term is used In our lien laws.” 

.._ 

Eciwk+a~~ ..lri 

darining ~%gr~,atii&.~~~l 

to that tam ;$hei Mead 

Turner TarpaxitlnB ~aabe, ,supra, 

ourlty Agency. This, latltade would support the ruling o? 

the Commission of March 19, 1940, as refleotkd by thd photo-. 

statlo aopy of latter of Orville S. Carpenter, Chairman and 

Eraoutlva Dlraotor , to,, the Wleqgata, Naval Stmes. ,-We .,do.n@ 

say that suoh a rullng.would~ be, coljlpat~lbla with ~opf regulatlons arraotlva to~iianuarg ~1, X9&0. 3!&e on rapogt?d ~baol- :~ 

alon balng.in sup art or the broad&t &tort 0 .oone$!cuotlkm 

or *agricultural f: 

T 

aborn,. pou’ara justified in tbllting that 

daoisltm when ,it doir ‘not oonillot with your own ragulatlons~ 

‘Iourp .varp truly 

APPROVED MAY 2, 194l ATTQRWEY GZWEftAL OF !iXXAS 

/s/ GRom? - 

FIRST ASSI-, 

ATTOEtNEy (fBM$RAL 

BT /a/ Yorrgu~o$~ 

MBtHzddt