OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 
Hon. Charles E. %a-, Pa&t? 2 

.?%oes the Cctissloner have authority to 

;~kz lmnediate settlement at the hands of the 

n 

Thim, In event of refusal to III&~ settlement, and after Certiiioate of Inspeation has 

been revoke%, and the dealer sends out nursery 

stooks, would he be sub&at to prosecution under 

the provlslons oi Artlole UOS, Penal Co& of 

Texas?" (parenthetloal insertions ours) 

Artiole 119, Revised Civil Statates, 1925, reads 

as follows: 

"The proteotlon or fruit trees, shrubs, an6 

plants Sba~ be under the spp8rvi6ion and control 

of the coraalsslonor of srglculture. The commlssioiwr shall prepare and enfoxoe suitable ,mleb 

and regulations ror the traffla aid ehlpaent of 

cape janmine, out flowers, and such ,greenhouse 

and floral ~hlpaeats as w'require control, and 

for the lnapeetlon of mrkserIe?J, greenhoties, orohards, farest~trees, and all produots ori&natimg 

fxom the same, withln the meaning of thls uhapter. 

He shall enforce the ~rovis~ona of thti chavter and 

BE& cad enforoeeuoh other rules.aml reRulntiom 

not lnoonslstent herewith as may be deemed accessorytooarrytheeamintoeffeot. II ebllal8 

prOYi&e such rules and~egulatfon6 aoLer& al&, 

private or publia parks avmues of shade trees, 

shrubbery and ornsment abalongthestreeta of 

oltlw, for aity residences, and oity ~property 

generally, an will aeaure a proteatlon and Unity 

from Insect peats and contagious dlseaees intended 

to be provided for by this law." (Mts lQQQ;p.%l.II.) 

(Underscoring ours) 

Micle 126, %evised Ciril Statutes, pr0VideS: 

90 asoertaln whether nursery~stooi %i lnf4iOted 

wlth diseases er pests, the ConmissIoner aha.lIaause 

to be made at least onoe enah year, an ezaPfPation 

of each nursery or other plaoe where mrreesy ato@k 

is exposed for s&e. If swh atoek mo examined la 

apparently free In all reepeots from eny BontagiOU 

or 3,nfeatlous disea8e or dsnareroesly injWlou InBeet pests, the c;omarla6l~n~r~~'srnall iesw to tae owner 
Hon. Charles E. Bmghmin, Pa@ 3 

or pxoprletor or suoh steak a oertiilcata recitierred, It shall be v01d.~ (Undersoorlng oure) 

Artlole 127, gevlsed Civil Statutes, contains the 

romtting prwieions f 

"~Unurserystock~~n~ignedior shipment, 

or shipped by freight, expreess or other msans 

of transportation shall be acooapenLed by a 

eopyotaald certitiaoteattaahsdto eaohoar, 

box, bale, bundle or paolage. Vihen suah box, 

bale, bundle, or paakage, contalna nursery steak 

to be delivered to mix8 than one person; partnership, or oorporation, eaah portion of such mmsery 6tOOk to be delivered to such person, mmershlp or corporation, shall also bear a 60 

4 

y of 

the certl,flcafe of inapeotion issued as prw ded 

'in the preoedlng artlcle.w 

Article 129, Revised Civil Statutes, pxovldea for 

xevocatlonof taxtViaate bythe Oxnulssionerof AgrSadLtoce: 

*The G3sdssioner may xewke any aertlrhat6 

Issued under this ohapter when he f.Znds that falne 

representations have been made by the mrt~ Eo 

whom the same was issued. or upon refufsal OS swh 

party to ao?iIply wlthths law, lnatruotiona or ties 

~lven by the Coarmlssloner as authorized by this 

chapter.w (Unf¶er6coxlng ours) 

~~%lcle 133, Revised Ciyll Statutes, authmlsea the 

collection of reasonable lnsp8atlon fees by the comai8atoneZ 

of iigrlaulture: 

The Comlssloner shall fix and oolleot reaaonable fees ror the lnspeatlon herein wovided 

?or. of not iess wan two do~ars and rirty aent5 

nor more thau fifteen dollars ior eaoh inspeetlon.* 

~nderssorlng ours) 

Article 135, Revised Cltil statutes, 1925, prorideS: 
Eon. Charles 3. Baughmm, Peg6 4 

suah.a.gent Shall have proper oredeutlals rrom the 

dealer he represent6 or eo-operatee wlth; and 

tailing In that, sny such agent shall be classed 

as a deder, and subject to such rules as ntay be 

adopted tielatlng to them, and shall be amenable 

to the same peaaltles for the riolation of any 

pro716lon of this law.* 

Art1018 1693 of the Penal Code of T&a8 reads as 

SOllOW5l 

"'Alln1U'EeX'ystOakODfl6ign8d.: ~CQ'6hipmePlt, 

or shfpped by freight, expxe6s or other mans or 

tren6portatlon shall be aeoompaaled by a copy of 

said cextlilaate attaohedto eaoh oar box, bale, 

bantile or package. When such box, bafe, bundle or 

paakage arntains nursery 8tock to be dellvexed to 

more them one pemon, partnershfp or dorporatlon, 

each portion of m8h nursery steak to be so delisered shall also bear a WDY OS .sueh eemtlficate of 

Rev%8wlng the nost p8I.-t%nent oithe above quoted 

statutes hrtlale l26 requires the Conuulesloner Oil'Agrloultat8 to issue to the owuer or $roprletor of nursery st#k a 

certlfioate or lnspeotlon where em examination, to be aade 

at least once a year, dl6elOS8S saah stook to b8 ire6 frog 

disease and lnseot pests. 

Artiale 3.27 stipulates that a oopy 0r the 00drioat8 of Inspection aooompany all shipments or nursery etoek. 

~tiole 1693 or the mxml Code makes it a penal orfense to 

Ship nursery stock wlthout the aertiiioate. 

Artlole 129 provides ~fer re~aatlon of the 8ertlfiaate on certain conditions, lnclndfng refta6aX al the Party to 

whom It waS iesned *to comply tit&the Ia+. 
Xoc. Charles E. ??augbmn, Page 5 

Artfole 133 authorizes the CcmmlseLoner to *Six 

and collect reasonable fctm* for tke lnspcetlon, said fcee 

re&ngfromTWo Dollars anaLrirtycsnts tofirteen Dollars. 

Tixmi ia no provision In the 'tarloufi artiolcs abow 

quoted as to the time and mtnnem of payment of the fees for 

the lnspeotion. 

Sin00 the ocrtlflcate ~oovlded Sor In lirticlc l26, 

""P'",i is ncoessary for the nhlpacnt of nursery s,tock, it has 

oert n.oS the che.racterIstice o? a permit, or a lloensc 

which has been deiined as a Sorm oS pen&elon.Srom the 

authorltiee to periorm ocrtcln aots end ocrry on a ocr 

tapr;oPcr 

businass, 8nd the law rclatln& to paymmt of.&mnse. Or pernltiees appcam to be applleablc. 

2'7 Tcx. Juris.p,iW@i *Ordlnarlly the right to 

a lioenee dependeupon the payment of a See * + ** 

27 %Mr. amf.6. 

generally prrmldc i 

,892: . 

&: 

"LiacMlag sleaBuTc8 qLLwc 

thepaJnsnt0raaornbythe 

licensee to a&ray the exptm88 of issuing the ll-. 

ocmc and cram&&q the applieaut or supervfrring~ 

the business to be oonduetcd. Suoh oharges arc 

umally denomiactcd ~fccst. A license ice is not a 

fox, but a prioe 6sxactcd ior the exerolse or a privilege. It la levied unaer.thc polio8 ma.mt the 

taring powcx',aadthe~cforc differccssentially 

57 CoqmcJuris p.Es1: g9!hetlmeaudraanner 

0s payment of a liocn88 r88 or tax arc gcimraZly 

governed by the provisionS OS thi statute or OZdinaaoe rcquirlng the 1Ocense or tar, th~.gcnecl.ly 

bclag payable annu8Uy. 

Vaymant in advance. ?cy5ent of a license 

fee map be and generally is rcquirred as a oondftion premdent to the issuance of a license and 

8ngag.lng in bwa888, ma a 3388~8 *sued betom 

suoh Payment is mid. Undersomcstatatcsand 

ordinanoes payment Ln aax?anoC is clcc requtied Or 

license or oooapation taxes, and where a tax fs 2mposed monthly, an appliea8ti w&f3 ha8 already pweued 

the business ror eom0 tbite dthout tddne lout a 
306 

~n.Charles !3aughutau,F~e 6 

liocnse or paying the tax is not entitled to a 

lIceme without the payment or tender of baok 

taxes for the tiiac he has engaged in the business . Under otlmr statutes or oraIn8a8881 houever, a license or ocoupctlon fcx Is not payable 

in aavt3m3 or as a oon~tion preaedcnt to engcgIng In business, partloularly~uhere the tcx Is 

~a~3abg tothe aaaunt0ram~ fyos 

n . 

Itwill be noted thatuhcrc the itatutc prmidcs 

ror the time and msnner 0t paylasnt or ices, pitymat 0f the 

roe in advance Is a gcncwil rule. Ia scxe Ihctaa~~, however, the nature or the tax prevents paymat in aavame, 

~-whwc the tax Is graded aooordlng to the amount or annual sclca3 or Income. 37 Corpus auriS $251.' 

Wher6 the statutes 0ontai.n no express provIsIon 

as tc.tImc aud payment or rees suoh as are authctizcd by 

Art1016 X53, Rctiscd Civil Statutcc, .1925, It la acocsocry 

to isoertain the Intent 0r the Legislature from ca caalysicr 

hi the statute8 a8 a whole In regard to the tlmc of pa-t. 

BamInstloa of the aurscry stock aa itmam3 of 

a ocrtitiaatc or InspcotIca lnvclvcs a 0crtai.n amount of emThe objeot or the tees le to defray the expense. 

Ez*the lcnguagc of &rtIole lS6, Bc~Ised Civil Statutes, 

lWZi,Icman&atarytothc cffcatthatthe Ccaml~eionbrof 

igrioulture Isauc a ocrtIrIcatc to the omwr or proprietor 

sf nursery etook passing the test still It Is equcllymanda- 

'Wy under ArtIole X%3, RcYIsed C&L1 Statutes, lOSEi, for him 

;o rix and oollcot reasonable reea. r0r the laqmation. A 

~8rtIfIoatc of Incpeotlon Is a ocadItIon prcacdcat to ah%-t 

li nursery steak. To 8hIp 'nursery steok without It is a rioatlca or then ,eIril and orlmlnal statutes af the Stat0 of Texas. 

fhe nursery 8took omcr Is not entitled to the Inspcctlon 8ee 

iae ofthe ~~tmenf0ragrio~~anathellosPsctromrths 

.kt8 on a oredlt basis. Suuh a oolrstraatian mwld olromawsnt 

*he pwpcsc or the kot andenable xursery ctauk ommra and prorietim to take advantqc or the ben8rit or the Aot at t&3 

Wmce or the #tats. 

Atticle U9, R8vlsca Citilstatutes,. 192s. authora3 the Com.l~sIaner or Agriculture to wenf43roe the provIlms or this uhaptcz aud etifnwc suuh ether mlccaaa rcguatlane not InoonsIstcnt hcri$wIth as mcy be doeared neccsscry 
. 

307 

lion. Charles 2. Raughman, Ba6e 7 

to carry ths saze into effect.” 

Art. 129, R. i. 5. 1925, authorizes the Comml6eioner 

of AgriCtitUre t0 P3YOke a oertificate “when he finds that 

false represcntstlons have been made by the party to whom the 

sane was issued” or “u,non refusal of suah party to comply with 

the law, instructions or rules given by the Comu&ssioner as 

authorized by this chapter.” 

Khlle it is not advisable Sor the Repart,,mnt of A,@- 

culture to issue the certificate without having first collected 

the tispeotion Sees, still in those cases where the oertifioate 

has been issued with the understanding that the aertIfIoate fee 

be paid, the lan@x@ of Art. 129 is broad enough to authorize 

revocation on the ground either that the oertitioate holder 

obtaIned the oertitloate by representing that he wmld rexaft 

r0r tieme ana not havLng done so or intendl~ to do SO, thereby 

obtalnlnG same under a false representation. iup3.n nonment amounts to a refusal of the party to oomply with *t Ii 

ayc 

instruotlons or rulesn uhloh call for payment. 

law, 

Art. 1693 of the Penal Code oontalns the sI,gnlSIoaht 

prtiIsion that whoever is %zongrullg In posscsslon or suoh 

oertIflcate* Is subject to Sine. Xhore the certISicat8 of inspection has been revoked under Artiole l.29, R. C. S. 1925, by 

the Cozm.l.saloner on account of rerusal to m&e 

the possessor thereof sends out or delivers wit ga 

yment, and 

In the state, 

trees, vines, shrubs, plants, bud8 or cuttlngs, I. 8. t#ursery 

stock subject to the Act, then such nursery dealer 16 Yb~ongrully !m possession oS such certificate*’ upon the strength 

or which he z&es his shlprnents, and is subjeot to prO5eOUtIOn 

under Art. 1693 of the Penel Code. 

It is our opinion that the Conmissioner 0r figrloulture has the authority to refuse issuanoe of the certljicate 

or inspection provided for under rrrtiole 126, Revised Civil 

Statutes 1923, to owners and proprietors of nursery steak unless the inspection fees provided for under Artiole 133 be 

paid at the time or lssuanoe* that where the certlfionte OS 

inspection has been issued w&hout 

missj.oner has authority to require f 

aymnt therefoar#, the cornmediate settlemmt Of the 

inspection Sees from the dealer- and furthermore, that In QBses 

where the certlfloate has been issued the ConmLssio~s~ has the 

authority under titicle 129, Revised &lril statutes to revoke 

any cortiSioate for whloh the owner or proprietor OS nurSerJr 

stock has persistently delayed or retused to pay; ahd SInalU, 

where the party to whom the oertifioate OS Inspection has been 

issued refuses to pay~the +ospeotIon fees thereior ana oontinues to send out nursery stoukz under the authority OS said 
Bon. Charles E. Bau@nWl, Fage 8 

certifioate df Inspection, he is subject to proseoutlon and 

fine under Article 1693, Penal Code of Texas, for operatirrg 

under a certificate of Inspeotion wrolyiully in his possesslon. 

188, we 

Trusting that we hare fully answered your in&rare 

Yours very truly 

ATTORNEY GENl?XUL OP TEXAS