The Honorable H. Q. Sibley, D.V. M. Executive Director Opinion No. H- 195 Texas Animal Health Commission 1020 Sam Houston State Office Bldg. Austin, Texas 78701 Re: The authority ofthe Texas Animal Health Commission toprohibit the admission of Mexican cattle. into designated Tick Eradication Areas. Dear Mr. Sibley: You have asked whether the Texas Animal Health Commission has the authority under Vernon’s Texas Penal Code, Article 1525c, or any other statute to forbid the introduction oflegally imported Mexican cattle into designated tick eradication areas of Texas. You have informed us that the Commission has reason to believe that Mexican cattle have developed an immunity to “Texas fever” or “splenetic fever, ” the disease carried by the fever tick. Even though these cattle have been rid of any ticks and show no ill effects they may carry the latent disease intheir bloodstreams. ffone later becomes ahost to afever tick, the tick could transmit the disease from the immune Mexican cow to nonimmune Texas cattle. Works onveterinary medicine inform us that historically~“Texas fever” has been one ofthe most destructive diseases among cattle. At one time practically all cattle inthe southern United States were affected by the disease. Pioneering research led to the discovery that the disease was caus.ed by the development and activity ofminute protoplasmic parasites, Piroplasma bigemina, inthe blood streams of cattle. For the first time itwas discovered that a disease was transmitted from one animal to another by an intermediate host or carrier, inthis case the Texas fever tick or cattle fever tick,

p. 913.
The Honorable H. Q. Sibley, page 2 (H-195)

Margaropus annul&us. Since it appears the fever tick is the only means by which the disease is naturally transmitted from .snimal to animal, eradication of the fever carrying ticks will cause the disease to disappear, In 1906 the United States began a campaign to eliminate the fever tick, and now tbe spread ofthe disease has been virtually eliminated inthis nation. Only a few counties along the Rio Grande are under permanent quarantine because of the presence of ticks. See generally U.S. Dept. ofAgriculture, Animal Diseases, pp. 310-313 (1956); Dykstra, Animal Sanitation and Disease Control, pp. 747-749 (1961). The legislative machinery by which Texas has combatted this disease is Article 1525~. the Tick Eradication Law. Itprovides methods for eradicating ticks and thus controlling the disease. The proposal about which you inquire would provide another means of controlling the fever. Instead of concentrating all efforts on eliminating the carrier, the Commission is considering measures to prevent the introduction af~.sources ofthe disease in areas where the carrier tick may exist. You have informed us that testing cattle to determine whether they carry the disease is prohibitively expensive, and your inquiry involves aproposal to prevent the introduction of all Mexican cattle into a designated Tick Eradication Area. Although the Commission has nopresent evidence that Mexican cattle have caused infection of Texas cattle by their introduction into Tick Eradication Areas inthis state, you inform us that it is likely that as many as one-half of Mexican cattle crossing from Mexico into the United States could be carriers ofthe disease. The Legislature has enacted a series of statutes to combat this and other diseases of animals under the provision ofthe constitution permitting the passage oflaws for the regulation oflivestock andthe protection of stock raisers. Texas Constitution, Article 16, $23. One of the laws enacted pursuant to the constitutional provision is Article 1525c, Vernon’s Texas Penal Code, the Tick Eradication Law, (to be republished as Article 7014g-1, Vernon’s Texas Civil Statutes). Section 1ofthat article provides in part:

“It shall be the duty ofthe [Texas Animal

Health Commission].
. . to eradicate the fevercarrying tick (Margaropus Annulatus) inthe St&e

p. 914The Honorable H. G. Sibley, page 3 (H-195)

of Texas and to protect all lands, territory, premises, cattle, horses, mules, jacks and jennets inthe State of Texas from said tick and exposure thereto, under the provisions of this Act. Said Commission shall adopt necessary rules and regulations, to be proclaimed by the Governor ofthe State of Texas, for carrying out the provisions ofthis Act. ” Article 1525b ofthe Penal Code (to be republished as Article 7014f-1, Vernon’s Texas Civil Statutes) involves the control of disease among live stock, Section 1ofthat article provides inpart:

“It shall be the duty ofthe [Texas Animal Health Commission].
. . to protect all cattle, horses, mules, asses, sheep, goats, hogs, and other live stock, and all domestic animals and domestic fowls ofthis State from infection, contagion or exposure to the infectious, contagious and communicable diseases enumerated inthis Section
. . . and other similar and dissimilar contagious and infectious diseases oflive stock recognized by the veterinary profession as infectious or contagious.
. . . Said Commission may at its discretion whenever it is deemed~ necessary or advisable also to engage inthe eradication and control of any disease of any kind or character that affects animals, live stock, fowls or canines regardless ofwhether said diseases are infectious, contagious or communicable and may establish necessary quarantines for said purpose. .. . . Said Commission shall adopt rules and regulations to be proclaimed by the Governor ofthe State of Texas for the purpose of carrying out and enforcing the provisions ofthis Act.
. . . No provision ofthis Act shall relate to tick eradication; ” (emphasis added).

p. 915The Honorable H. Q.. Sibley, page 4 (H-195)

The proposal you suggest is designed top.revent the introduction and spread of “Texas fever” inthis state. Technically it is not atick eradication measure. Instead, it is designed to prevent disease. We find it unnecessary, therefore, to determine whether Article 1525c, the Tick Eradication Law, provides the authority for **the** adoption of the measures you suggest, since

‘theproposals may be authorized underArticle~l525b’s grant of authority to the Commission to eradicate and control “any disease ofany kind or character that affects animals”
. The Commission’s proposed action is clearly within the police power ofthe state. Rasmussen v. Idaho, 181U.S. 198 (1901); Smith v. St. Louis &Southwestern Railway Co. , 181U.S. 248 (1901); Armstrong v.’ Whitten, 41F; 2d 241 (S.D. Tex. 1930). Itis axiomatic that a state regulation cannot stand if it conflicts with afederal statute or regulation. Article 6, clauae.2, ofthe United States Constitution, the Supremacy Clause. Also, the state may not regulate commerce inanarea inwhich the federal government has pre~empted the regulatory field. Article 1, $8, clause 3of the United States Constitution, the Commerce Clause. InRice v,SantaFe Elevator Corp. ,,331 U.S. 218, **230 (1947),**  the **Court** said:

“The question in each case is what the purpose of Congress was.

‘1.
. . Such apurpose may be evidenced in several ways. The scheme offederal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.
. . . Or the Act of Congress may touch afield inwhich the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.
. . . Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. . . . Or the state policy may produce a result inconsistent with the objective ofthe federal statitte. I’

pe 916The Honorable H. Q.. Sibley; page 5.~~(H-195) :

After carefully examining the federal regulatory scheme it is our conclusion that Congress did not intend to preempt the field. See, Savage v. Jones, 225 U.S. ~501(1912); Reid ‘v. Colorado, 187 U.S. 137 (1902); Missouri, Kansas &Texas Railway Co.
. v. Haber- :169 U.S. 613(1898). Indeed, the Congress and the Secretary ofAgriculture specifically contemplate concurrent state regulation. 21U.S. C. $114, 9 C.F..R. $72-10. 21U.S.C. §104, authorizes the Secretary ofAgriculture topermit the entry of certain Mexican’cattle into the State of Texas. As itis our understanding that the proposed regulation would merely prevent their entry’into designated Tick Eradication areas, we do not believe itwould conflict with any’specific ~federal statute or the general federal regulatory scheme. A state’s absolute quarantine against cattle from another state may be permissible under the-commerce clause. Smith v. St. ~Louis &Southwest Railway Co., supra. The test to be used in determining whether a state reeulation unduly affects interstate commerce is essentially abalancing test. Itwas recently articulated in Pike v. Bruce Church, *Inc. , 397 UlS. 137, 142 (1970) where the United States Supreme Court said:

“Where the statute regulates even-handedly to effectuate alegitimate local public interest, and its effects on interstate commerce are only incidental, itwill be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
. . . Ifalegitimate local purpose is found, then the question becomes one of degree. And the extent ofthe burden that will be tolerated will of course depend onthe nature of the local interest involved, andeonwhether it could be promoted as well with alesser impact on interstate activities. ” The validity ofthe proposed regulation would depend on its scope and its effectiveness inpromoting the health of cattle inthis state. The only regulation that.has been suggested to us is inavery general outline form, andwithout more specific information as to its scope, we are not able to

p. 917.
The Honorable H. Q.. Sibley. page 6 tH-195)

render anyjud.gment on its legal validity in respect tothe commerce clause. The soundness of the veterinary theory onwhich it is based would be a relevant consideration in determining the regulation’s validity, but we are not equipped to make such factual determinations. We can say, however, that regulations ofthe type you.have outlined would notnecessarily be precluded by the federal government’s power over interstate and foreign commerce. SUMMARY

The Texas Animal Health Commission has the authority to prohibit the admission of Mexican cattle into designated Tick Eradication Areas insnattempt to prevent the introduction and spread of splenetic or Texas fever. Such a regulation would not necessarily be precluded by the federal government’s power over commerce.

// Attorney General of Texas A

DAVID M. KENDALL, Chairman Opinion Committee

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