Mr. L. R. Noyes, Executive Director Opinion No. WW-538

Livestock Sanitary Commission ofTexas 3320 West Seventh Street Re: Whether or not, in the enFort Worth 7,Texas forcement ofSection 26, Article 152513,Vernon’s Penal Code, the Commission is liable for any death loss or shrinkage in weight that may occur while livestock are detained for treatment, tests or vaccination, Dear Mr. Noyes: and related questions.

This opinion is written in response to your letter of September 9, 1958, and your additional letter of September 19in response tomy telephone conversation with you of September 18.

The questions you have asked are as follows:

“In the enforcement ofthis provision ofthe statutes, this Commission would like to have an Opinion, whether it would be liable for any death loss or shrinkage in weight that may occur while livestock are detained for treatment, tests or vaccination.

“In the event the driver ofthe truck, who is not usually the owner ofthe animals, unloads them and makes
no arrangements for feed, water and required tests, may the Sheriff or any peace officer ofthe County in which the livestock are intercepted impound and levy alien for the purpose ofsecuring payment ofexpenses and costs of handling the animals ?
“We should also like to know if the Sheriff or Const,able ofthe County in which the livestock are apprehended may impound the animals and levy alien to cover fines and court costs that may be assessed for the violation ofour requirements.”Mr. L. R. Noyes, page 2. (WW-538)

Since all ofthese questions pertain to interstate shipments under Section 26ofArticle 1525b, Vernon’s Penal Code, this Section will be quoted infull and your questions answered in their respective order.

“Quarantine offoreign shipments in violation ofact

“Sec. 26. Whenever any live stock, canines, or fowls
are moved or permitted tomove into the State ofTexas in violation ofany quarantine established under any provision ofthis Act or ofany other Live Stock Sanitary Law or in violation ofany provisions ofthis Act or ofany Live Stock Sanitary Law or ar~emoved from any place in the State of Texas in violation ofany quarantine established under this Act, it shall be the duty ofthe Live Stock Sanitary Commission to quarantine said live stock, canines or fowls wherever found and enforce said quarantine until said live stock have been properly treated or vaccinated or tested, dipped or otherwise disposed ofas may be provided for in the rules and regulations ofthe Live Stock Sanitary Commission. The provisions ofthis Section shall apply to all live stock, canines and fowls and to all diseases mentioned in this Act, including also scabies among cattle, sheep and goats.”

In regard to your first question concerning the liability ofthe Commission for death loss or shrinkage inweight oflivestock while they are detained for tests or vaccination, the answer is as follows:

Since the operations ofthe Articles coming under Chapter 14of Vernon’s Penal Code come under the police power ofthe State, there would be noliability onthe part ofthe State for losses oflivestock or losses of weight oflivestock which are held under authority and in pursuance ofthese statutes. Armstrong v. Whitten, D.C. 41Fed.2d 241, (1930). Of course, there would be nopersonal liability onthe part ofthe Commissioners so long as they were acting within the*authority ofthis act. Choate v. Renfro, 126S.W 2d 718, (Civ.App., 1939).

In answer to your second question it is our opinion that whether the livestock may be impounded and alien levied for the purpose ofsecuring payment ofexpenses and costs ofhandling, depends on the type ofanimal and the type ofdisease involved.

Article 1525c, dealing with cattle, horses, mules, jacks andjennies infested with disease-bearing ticks, is very explicit in its mandates andMr. L. R. Noyes, page 3. (WW-538)

provides that it is the duty ofthe county to furnish the vats for dipping, and also that the dipping material is tobe furnished by the State. It also provides in Section 13that the owner or caretaker is liable for all expenses ofbringing the cattle or other animals to andfrom the dipping vats. Section 15provides that if the owner refuses to bring the animals to the county dipping vats, the State may go in and dip the cattle itself and charge the owner $2.00 ahead which is secured by lien fixed on the cattle and which lien also attaches for additional expenses~ ofhauling, feeding and watering the stock while in possession ofthe State for dipping. Parker v. Miller, 118S.W.2d 380 (Civ.App., 1938), acase coming under this section, held that it would be proper for a sheriff to keep animals in his possession for satisfaction ofthe debt secured by the lien which arises under this article.

Under Article 1525a concerning cattle, sheep and goats infected with scabies, Section 2provides that the Commission can direct the party controlling the animals or the owner to have them dipped and can punish for failure on the part ofthe owner or caretaker to dip. Section 18states that if the owner refuses to dip, it is the duty ofthe County Commissioners’ Court to have the animal dipped at the expense ofthe county. Here it would
seem that the only recourse ofthe county to recover expenses for feed and water would be through the instigation ofa suit for the fine for failure to dip and the other expenses involved,

There are other provisions dealing with avarieiy ofdiseases such
as glander, bangs disease, hoof and mouth, and cholera, which do not mention the costs ofhandling and feeding. Since the general provisions ofSection 12 ofArticle 1525a, state that it is the duty ofthe owner or caretaker to gather the animals for inspection, and since the Legislature, in House Bill 133, Acts ofthe 55th Legislature, 1957, Regular Session, Chapter 395 (General Appropriations), has made no provision for handling costs and feeding expenses, it is our opinion that the owner or caretaker would have to provide for these expenditures since the Commission would be unauthorized to make these disbursements.

The answer to your third question, concerning the right ofthe Commission to impound animals and to levy a lien to cover any fines and court costs, will likewise depend upon the particular type oflivestock involved. The only Act which provides aclear answer is found in Section 25, Article 1525b, which states as follows:

“County attorney to institute civil actions against non-residents for fines

,Mr. L. R. Noyes, page 4. (WW-538)

“Sec. 25. Whenever any person who is anon-resident ofthe State ofTekas violates any penal provisions ofthis Act and is absent from the State at the time ofthe said violation or whenever any foreign coryoration which ~does not have apermit under the law to dobusiness in the State of Texas violates any provision ofthis Act it shall be the duty ofthe County Attorney in any and all counties in the State ofTexas wherein said violation occurs to institute acivil suit against said non-resident person or foreign corporation for the collection ofthe fine provided in said penal clause, and to run an attachment upon any property which said nonresident person or foreign corporation may at any time have in the State ofTexas and after final judgment to have said attached property sold under execution, for the purpose ofpaying said fine and cost ofsuit.

.. .I’ (Emphasis added).
Under Article 1525c, no such authority exists for bringing asuit to recover fines and costs ofsuit against aperson although Section 28does provide that acivil suit might be maintained against acorporation by the County Attorney for recovery offines imposed for violation ofArticle 1525~. Since this Section refers to corporations broadly, it seems that it applies both to foreign as well as domestic corporations.

There are no other provisions dealing with animals infected with contagious diseases granting the county or other State agencies involved the right to attach livestock for payment offines and court costs, therefore, it is our opinion that no such right exists.
SUMMARY
The Livestock Sanitary Commission would not be liable for death loss or shrinkage inweight that may occur while livestock are detained for treatment, testing or vaccination. Under Section 26, Article 1525b, Vernon’s Penal Code, whether or not the Coromission will be able to-hnpound the animals and acquire a lien for handling their feed costs or for the recovery ofthe fines and court costs, will depend on the type ofanimal and the type ofdisease involved. Sincerely,

MD:ci:ls

. Assistant --

.

Mr. L. R. Noyes, page 5. (WW-538)

APPROVED:

OPINION COMMITTEE Geo. P. Blackburn, Chairman

Marietta Payne Cecil C. Cammack, Jr. Morgan Nesbitt Riley Eugene Fletcher

REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert