P 

June 22, 1988 

Mr. Perry L. Adkisson 

Chancellor 

Opinion NO. JM-920 

Texas A & M University System Re: Construction of Texas 

319 System Building Commercial Fertilizer ConCollege Station, Texas 77843 trol Act, chapter 63 of 

the Agriculture Code 

(RQ-1240) 

Dear Mr. Adkisson: 

You ask two questions about the procedures to be 

followed by the Director of the Texas Agriculture Experiment 

Station in enforcing the Texas Commercial Fertilizer Control 

Act, chapter 63 of the Agriculture Code. These are as 

follows: 

1. Whether a fertilizer manufacturer has 

a legal right to notification of violative 

analytical findings by the Texas Feed and 

Fertilizer Control Service and to exhaustion 

of legal remedies prior to the service 

notifying purchasers of these findings; and 

2. Whether the Director of the Texas 

Agricultural Experiment Station is 

to give equal weight to analytical 

compelled 

findings 

of commercial laboratories when a manufacturer contests the results of the state 

chemist. 

Chapter 63 of the Agriculture Code provides for 

regulation of the manufacture and distribution of commercial 

fertilizer. Agric. Code §§ 63.031, 63.051, 63.091, 63.121; 

see also Agric. Code 55 63.001, 63.002 (defining "commercial 

fertilizer" and other terms). 

63 of the Agriculture Code 

The duties set out in chapter 

are the responsibility of the 

Director of the Texas Agricultural Experiment Station, to be 

performed by the Texas Feed and Fertilizer Control Service 

under his direction. The Agriculture Code prohibits the 

manufacture and distribution of commercial fertilizer 

without a permit issued by the service and requires 

p. 4606 
Mr. Perry L. Adkisson - Page 2 (JM-920) 

containers of fertilizer to be labeled with certain 

information, including the grade of the fertilizer and the 

guaranteed analysis of plant nutrients in it. Agric. Code 

93 63.031, 63.051. 

Subchapter G of chapter 63 provides remedies for violations of the chapter, including a stop-sale order, condemnation, warnings, and a suit to enjoin a violation or 

threatened violation., Agric. Code 55 63.121, 63.122, 

63.124. Subchapter Ii sets~ out criminal penalties for 

violation of chapter 63 and for other specific offenses 

which include distribution of misbranded, adulterated, 

unregistered, or unlabeled fertilizer. 

The service has authority to take samples of fertilizer 

for analysis under section 63.091 of the code: 

f, 63.091. Inspection and Sampling: Entry Power 

In order to determine if commercial fertilizer is in compliance with this chapter, the 

service is entitled to: 

(1) enter during regular business hours 

and inspect anv Dlace of business, mill, 

plant. buildina. or vehicle, and to 013811 

anv bin, vat. or Darcel. that is used in 

the manufacture. transDortation. imDortation. sale. or storaae of a commercial 

fertilizer or iS SUSDeCted of containina a 

commercial fertilizer: and 

(2) take samples from fertilizer found 

during that inspection. (Emphasis added.) 

Agric. Code 5 63.091. Each sample is sent to the service, 

with a report providing the following information: 

(1) the name or brand of commercial 

fertilizer sampled; 

(2) the serial number of the sample: 

(3) the manufacturer or cruarantor of the 

samDle. if known; 

-, 

(4) the name of the Derson in Dossession 

of the lot samDles [sic]; 

p. 4607 
Mr. Perry L. Adkisson - Page 3 (JM-920) 

(5) the date and place of taking the 

sample: and 

(6) the name of the person who took the 

sample. (Emphasis added.) 

Agric. Code 5 63.093(b). 

The service thus is authorized to take fertilizer 

samples from persons or entities other than the 

manufacturer. Section 63.093(b)(3) of the code indicates 

that the name of the manufacturer may be unknown, while 

section 63.093(b)(4) indicates that the person in possession 

of the lot sampled1 may be different from the manufacturer. 

The service is 

mill, 

entitled to enter "any place of business, 

plant, 

container 

building or vehicle," and may open 

"that is used in 

any 

the manufacture, transportation, importation, sale, or commercial 

fertilizer" or that is 

storage of 

fertilizer. . . .I1 

"suspected of containing a commercial 

Agric. Code § 63.093(b). Thus, the 

sample may have been taken from the manufacturer, transporter, seller, or purchaser of the fertilizer. your letter 

states that the service routinely acquires samples of 

manufactured fertilizers as they appear in the marketplace. 

The samples collected are analyzed by the office of the 

State Chemist. See Agric. 

a state chemist). 

Code 5 63.003(c) (appointment of 

If the service finds that a commercial 

fertilizer is in violation of 

the Agriculture Code, 

a provision of chapter 63 of 

it is required by section 63.094 to 

"notify the manufacturer or other person who caused the 

1. Section 63.093(b)(4) should read as follows: "the 

name of the person in possession of the lot 

The prior version of section 63.093(b)(4) 

sampled. . . .I1 

referred to the 

"lot sampled.01 Acts 1961, 57th Leg., ch. 27, § 8(b), 

at 54, 58. 

Cd), 

Chapter 141 of the Agricultural 

commercial 

Code, which 

regulates feed, includes section 141.103 on 

identification of feed samples. Section 141.103, which is 

virtually identical to section 63.093 of the code, 

that the report to the service 

provides 

should contain "the name of 

the person in possession of the lot SamDled. . . .I' 

Code § 141.103(b)(4). 

Agric. 

(Emphasis added.) Chapters 63 and 

141 of the Agricultural Code were amended by a single bill 

adopted by the 68th Legislature. Acts 1983, 68th Leg., ch. 

349, at 1851. The small change in section 63.093(b)(4) 

appears to have resulted from a typographical error. 

p. 4608 
Mr. Perry L. Adkisson - Page 4 (JM-920) 

fertilizer to be distributed." Agric. Code g 63.094(a). The 

manufacturer or distributor of the fertilizer then has an 

opportunity to have an independent analysis of the sample 

collected by the service. Agric. Code 5 63.094(b). 

Your first question arises from the service's practice 

of sending purchasers of fertilizer a copy of the state 

chemist's analysis three days after sending it to the 

manufacturer. YOU state that a fertilizer manufacturer 

maintains that this is an improper procedure because (1) the 

state has no statutory authority to inform the purchaser 

until remedies specified in section 63.094 have been 

exhausted and the issue has been resolved and (2) notification prior to resolution is a denial of the manufacturer's 

due process rights. We will first consider the authority of 

the service to inform the purchaser of the chemical analysis 

prior to exhaustion of the remedies set out in section 

63.094. 

You have submitted copies of the notification sent to 

the manufacturer and then to the purchaser. The cover 

letter states that, on the 

analysis report, 

basis of an enclosed laboratory 

the fertilizer is in violation of the Texas 

Commercial Fertilizer Control Act. It requests the manufacturer to review all factors which might have resulted in 

this deficiency, invites it to supply additional information 

which will justify changing the conclusions of the report, 

and informs it that it may request an independent analysis. 

The laboratory analysis report accompanying the cover 

letter states the percentages of chemical components 

guaranteed for the fertilizer 

analysis 

and the percentages shown by 

of the sample. It includes the following 

statement: 

LABORATORY ANALYSIS DEMONSTRATES THIS 

PRODUCT TO BE EITHER DEFICIENT OR EXCESSIVE 

IN ONE OR MORE OF THE LABEL GUARANTEES 

HIGHLIGHTED ABOVE. 

THE SAMPLE RESULTS FALL OUTSIDE THE RANGE 

OF SAMPLING AND ANALYTICAL ERROR. THE MT 

OF PRODUCT IS THUS CONSIDERED TO BE IN 

VIOLATION OF THE ECONOMIC PROVISIONS OF THE 

TEXAS COMMERCIAL FERTILIZER CONTROL ACT. 

THE SAMPLE WILL BE RETAINED FOR FIFTEEN 

(15) CALENDAR DAYS FOLLOWING THE DATE OF THIS 

REPORT TO ALLOW THE MANUFACTURER TO REQUEST A 

PORTION FOR HIS OWN USE. WITHIN THIS TIME, 

p. 4609 
Mr. Perry L. Adkisson - Page 5 (JM-920) 

THE MANUFACTURER IS FURTHERMORE PROVIDED THE 

OPPORTUNITY OF. REQUESTING ANALYSIS BY TWO 

INDEPENDENT LABORATORIES SELECTED BY THE 

STATE CHEMIST. THE RESULTS OF SUCH INDEPENDENT ANALYSES WILL BE TAKEN INTO CONSIDERATION IN MAKING A FINAL DETERMINATION OF THE 

LEGAL STATUS OF THE SAMPLE. A CORRECTED 

REPORT WOULD BE ISSUED IF THE STATUS CHANGED. 

UNLESS CHANGED, THIS ANALYSIS WILL APPEAR AS 

A VIOLATIVE LISTING IN THE ANNUAL PUBLICATION 

OF THE OFFICE OF THE TEXAS STATE CHEMIST. 

Much of the 

of the Agriculture 

information set out in section 63.093(b) 

Code appears on the analysis report, 

including the name of the manufacturer or guarantor and the 

name of the possessor. 

submitted, copies 

In both of the sample notices you 

of the cover letter and 

analysis report were 

laboratory 

sent to the entity identified as the 

possessor of the fertilizer lot from which the sample was 

taken. Thus, in these cases, the service took samples from 

the purchaser of the fertilizer, and then sent him the 

results of its analysis of those samples. 

No provision of chapter 63 states that the service may 

or must send a copy of the report to the possessor or to the 

purchaser. We do not, however, believe express statutory 

authority is necessary for the service to send the purchaser 

or possessor of fertilizer its chemical analysis of that 

product. 

In Terre11 v. Soarks, 135 S.W. 519 (Tex. 1911), the 

Supreme Court of Texas stated as follows: 

The grant of an express power carries with it 

by necessary implication every other power 

necessary and proper to the execution of the 

power granted. When the law commands anything to be done, it authorizes the performance of whatever may be necessary for 

executing its commands. 

Terrell' v. SDarkS, 135 S.W. 521 (Tex. 1911) (quoting 

Sutherland on Statutory Construction, 5 341). See Stauffer 

v. c of San Antonio, 

service 

344 S.W.2d 158 (Tex. 1961) (civil 

commission does not have implied authority to 

resolve fact questions of fireman's fitness for 

reinstatement). In Bullock v. Calvert, 480 S.W.2d 367 (Tex. 

1972) the court stated that 

p. 4610 
Mr. Perry L. Adkisson - Page 6 (JM-920) 

every specific, permissible act of a public 

officerneed not be expressed in a statute: we 

imply the authority to do those acts necessary 

to achieve the power or object expressly 

granted, because the Legislature must have 

intended to grant the constituent details 

within the larger commission. 

Bullock v. Calvert 480 S.W.2d 372 (Tex. 1972) (dicta, no 

statute authorized'secretary of state to spend state funds 

to conduct party primary elections). 

In SeXtOn v. Mount Olivet Cemetarv Association, 720 

S.W.2d 129 (Tex. App. - Austin 1986, writ ref'd n.r.e.), the 

court stated that the legislature generally intends that an 

agency should have by implication such authority as is 

necessary to carry out specific powers and duties, so that 

the statutory purpose might be achieved. 

We would not expect a state agency to have express 

authority to engage in correspondence relevant to its duties 

or to send copies of its correspondence to interested 

persons. See aenerallv V.T.C.S. art. 6252-17a, 5 6(15) 

(informationavailable to public by agency policy as of the 

effective date of the Texas Open Records Act). In our 

opinion, the service has implied authority based on sections 

63.091, 63.093, and 63.094 of the Agriculture Code to send a 

copy of the laboratory report to the purchaser or possessor 

of the fertilizer. The person from whom the service has 

obtained the fertilizer and who is identified in the 

accompanying the sample as 

report 

the possessor of the fertilizer 

sampled has a special interest in learning the result of the 

analysis. The purchaser, if 

is similarly interested in 

different from the possessor, 

that information. No provision 

of chapter 63 requires the service to keep the fertilizer 

analysis a secret from everyone but the manufacturer. 

Comoare Agric. Code g 63.094 with Agric. Code § 63.095 

person may initiate submission of sample for analy:E' 

results may not identify manufacturer and may not b;! 

published). See also Agric. Code § 63.005(a)(2) (at least 

annually, director shall make public results of analysis of 

fertilizer samples). In sending the purchaser or possessor 

a copy of the analysis report, the service 

information generated by its 

provides 

inspection and testing powers 

to parties who were involved in the exercise of those powers 

and who have a significant interest in the results of the 

testing. 

This practice of the service helps carry out the 

purposes of chapter 63. When the Texas Fertilizer Control - 

p. 4611 
Mr. Perry L. Adkisson - Page 7 (JM-920) 

Act was adopted in 1961, it included the following emergency 

clause: 

The fact that present laws are not adequate 

to regulate the manufacture and distribution 

of commercial fertilizers in Texas: the fact 

that consumers need uniform guarantees and 

labeling of fertilizers which are offered to 

them: and the further fact that it would be of 

great material advantage to have the laws of 

Texas conform insofar as practicable with the 

present day practices of consumers, manufacturers and distributors of commercial 

fertilizer, and to afford maximum orotection 

to consumers of commercial fertilizers, create 

an emergency. . . . (Emphasis added.) 

Acts 1961, 57th Leg., ch. 37, 5 19, at 54, 61-62. An 

emergency clause may be considered if it will aid the 

court in ascertaining the legislative intent. Trawalter 

v., Schaefer, 179 S.W.Zd 765 (Tex. 1944) ; Gov't Code 

5 311.023(l). A related purpose is stated in the bill 

analysis for House Bill No. 1510 of the 68th Legislature, 

the bill which adopted the present version of chapter 63 of 

the Agriculture Code. The bill analysis -states the 

following as background information: 

The guaranteed quality of commercial feeds and 

fertilizers are essential for the successful 

operation of the agricultural and livestock 

industries of Texas. Texas A & M University, 

through the Agricultural Experiment Station, 

is charged with the regulatory responsibility 

of guaranteeing of the labeling accuracy and 

ingredient quality of these products as well 

as pet foods and homeowner products. 

House Committee on Agriculture and Livestock, Bill Analysis 

to H.B. No. 1510, 68th Leg. (1983). See Gov't Code 

§ 311.023(3) (in construing a statute, court may consider 

legislative history). 

Informing the purchaser or possessor of fertilizer of 

the laboratory analysis report will help carry out the 

legislative purpose of protecting consumers. The purchaser 

or possessor can refrain from applying the fertilizer to the 

soil if it has not yet been applied. If it has been, he has 

an opportunity to determine whether supplemental applications should be made to correct the balance of plant 

nutrients in the soil. 

p. 4612 
Mr. Perry L. Adkisson - Page 8 (JM;920) 

Your letter states that original findings are mailed to 

the purchaser three days after the mailout to the manufacturer so that the manufacturer will have an opportunity 

to initiate a monetary settlement with the purchaser. By 

informing the purchaser of the original findings, the 

service encourages manufacturers to be responsible for 

the quality of their products and to, be accountable to 

consumers. In this way, the consumer protection purposes of 

chapter 63 are carried out. 

construing a statute, 

&.g Gov't Code 5 311.021(5) (in 

a public interest is favored over a 

private interest). 

We note that the predecessor to section 63.094(a) 

provided that, in case the fertilizer was found in violation 

of chapter 63, 

the director shall notify the manufacturers or 

other person who caused the fertilizer to be 

distributed and the consianee. (Emphasis 

added.) 

Acts 1981, 67th Leg., ch. 388, at 1012, 

Agriculture Code). The "consignee" 

1147 (adopting 

is not the purchaser or 

consumer, but the person to whom the product is delivered 

for transportation or sale. Webster'.s Third New International Dictionary; m Charles M. Stieff, Inc. v. Citv 

of San Antonio, 

V*consignment*' and 

111 S.W.2d 1086 (Tex. 1938) (defining 

"consigned"). The deletion of the 

mandatory requirement that the consignee be notified does 

not demonstrate any legislative intention to restrict the 

service's implied authority to send purchasers of fertilizer 

and possessors of the lots sampled copies of the analysis 

report. We conclude that the service has implied 

authority to send copies 

statutory 

of laboratory analysis reports to 

the purchaser of the fertilizer that was tested. 

We next consider whether the due process clauses of 

the United States and Texas Constitutions entitle the 

fertilizer manufacturer to notice and a hearing before 

the laboratory report is sent to the purchaser of the 

fertilizer. The .Fifth and Fourteenth Amendments to the 

United States Constitution and article I, section 19, of the 

Texas Constitution prevent the state from depriving persons 

of property or liberty without due process of law. The 

manufacturer is a corporation and 

thus cannot claim due 

not a natural person and 

process protection for the liberty 

guaranteed by the Fourteenth Amendment or by article I, 

section 19, of the Texas Constitution. Pierce v. Societv of 

Sisters, 268 U.S. 510 (1925); Western Turf Association v. 

Greenberq, 204 U.S. 359 (1901); Northwestern National Life 

-. 

P. 4613 
.- 

C 

Mr. Perry L. Adkisson - Page 9 (JM-920) 

_In urance Co. Ri- 203 U.S. 

L.:d.2d 975, 98?(1975).' 

243 (1906); Annot. 47 

The reputation of a natural personal person is analyzed 

as a liberty interest rather than a property interest under 

the due process clause. See Wisconsin v. Constantineau 400 

U.S. 433 (1971). Even if the manufacturer were a naiural 

person who could invoke due process protection for a liberty 

interest, and if the transmittal of the fertilizer analysis 

to his customer could be considered damaging to his 

reputation, the due process clause would not afford him the 

notice and hearing he seeks. In paul v. Davis, 424 U.S. 693 

(1976) r the Supreme Court considered whether a citizen's 

charge of defamation stated a claim for relief under 42 

U.S.C. 5 1983 and the Fourteenth Amendment. The Supreme 

Court held that city and county police officials did not 

violate the plaintiff's due process rights when they 

circulated to local area merchants a circular that described 

him as an "active shoplifter." The Supreme Court held that 

reputation alone, apart from some more tangible interests 

such as employment, was neither a liberty nor property 

interest sufficient to invoke the procedural protection of 

the due process clause. 424 U.S. at 711-712. See Marrero 

v. Citv of Hialeah, 625 F.2d 499 (5th Cir. 1980) (injuries 

to personal and business reputations caused by unlawful 

search and seizure are compensable under 42 U.S.C. § 1983 as 

element of damages). The court moreover said that the due 

process clause does not extend a person the right to be free 

of injury "wherever the State may be characterized as the 

tortfeasor." 424 U.S. 701. 

We next consider whether the manufacturer has 

property interest which would invoke the protection of th: 

due process clause. 

Property interests are not created by the United States 

Constitution, but are created and defined by rules or 

understandings that derive from an independent source such 

as state law. Ruckelshaus v. Monsanto Co., 467 U.S. 986 

(1984) (trade secrets); Board of Reaents v. Roth, 408 U.S. 

564 (1972) (public employment). Intangible interests, such 

as contracts, liens, and trade secrets, have been recognized 

as property rights entitled to constitutional protection. 

Ruckelshaus v. Monsanto Co. suora (information recognized 

as trade secrets under Mis&.ouri law constitutes property 

protected by Fifth Amendment's taking clause). 

The manufacturer in this case asserts a property 

interest in good will. Texas courts have recognized good 

will as property which consists of the advantage or benefit 

P. 4614 
Mr. Perry L. Adkisson - Page 10 (JM-920) 

acquired by an establishment beyond the mere value of the 

capital stock, funds, or property employed therein, in 

consequence of the patronage of habitual customers which it 

receives 

on account of its local position, or common 

celebrity, or reputation for skill, 

influence, or punctuality, or from 0th:: 

accidental circumstances or necessities, or 

even from ancient partialities or prejudices. 

Taormina v. Culicchia 355 S.W.2d 569, 573 (Tex. Civ. App. - 

El Paso 1962, writ 'ref#d n.r.e.); Texas 

90 S.W.2d 557 (Tex.?36). 

& Pacific 

Railwav v. Mercer, The owner may 

recover damages for the destruction of good will. Texas & 

Pacific Railwav Co. v. Mercey, m. Good will is not, 

however, compensable as a separate and independent item of 

recovery when the state takes land occupied by a business in 

eminent domain proceedings. State v. Za ba 418 S.W.2d 499 

(Tex. 1967); Citv of Dalla 

is the goodswyll 

Priol o, 2:: S:W.2d 176 (Tex. 

1951). Nor of a physician's medical 

practice considered to be property subject to division upon 

divorce. Wail v. Naib, 486 S.W.2d 761 (Tex. 1972). 

Texas courts have moreover held that both liberty 

interests and property interests are held subject to the 

exercise of the state's police power. Citv f Colleae 

Station v. Turtle Rock Core 

(alleged taking of property;; 

680 S.W.Zd 802 (Gex. 1984) 

Ci tv of New Braunfels v. 

Waldschmit 207 S.W. 303 (Tex. 1918); Houston & Texas Cent. 

Railwav v.'Dallas, 84 S.W. 648 (Tex. 1905). State police 

power is grounded upon the public need for safety, healthy 

security, and protection of the general welfare of the 

community. Jefco. Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. 

APP. - Austin 1975, writ ref'd n.r.e.). The wisdom of the 

exercise of the police power is largely for legislative 

rather than judicial determination. J& at 922. 

Sending the fertilizer analysis report to the purchaser 

in our opinion, a reasonable exercise of police power to 

iF&ect the general welfare by protecting consumers from 

mislabeled products and by limiting damage to the agriculture of Texas that might result from distribution and 

application of mislabeled fertilizer. The purchaser is also 

informed of the manufacturer's right to have an independent 

analysis of the fertilizer and of the possibility that a 

corrected report might be issued. This information should 

minimize the effects on the manufacturer's customer relations, if any, caused by sending the laboratory report to 

the customer. We believe the Texas courts would hold that 

p. 4615 
Mr. Perry L. Adkisson - Page 11 (JM-920) 

good will does not include patronage attributable to the 

consumer's ignorance of possible product deficiencies 

discovered by the legislatively authorized testing program 

set out in chapter 63 of the Agriculture Code. See 

aenerallv Open Records Decision No. 48 (1974) (sect= 

3(a)(4) of the Open Records Act does not protect competitive 

situation based on public ignorance of content or 

wholesomeness of food products). a uternational Business 

Machines Corooration v. United States of $merica, 298 U.S. 

131 (1936) (no exception to Clayton Act for trying clause 

directed at protecting good will). 

Since we conclude that no property interest is affected 

by governmental action in this case, we need not decide 

whether the review procedures set out in section 

would accord due process. 

63.094 

See, u, Ewina v. Mvtinaer & 

Casselberrv. Inc., 339 U.S. 5' 94 (1950) (due process clause 

not violated I 

misbranded 

ny federal statute authorizing seizure of 

articles upon agency finding, made without 

.- 

hearing, of probable cause that misbranded article was 

dangerous to health or that labeling was fraudulent or 

misleading to the injury and damage of consumer): Buttfield 

. Strmnah a n , 192 U.S. 470 (1904) (no deprivation of 

property without due process in tea examiner's summary 

seizure of imported tea based on his judgment that its 

quality did not meet federal standards for wholesomeness); 

Annot. 69 L.Ed.2d 1044 (1981) (application of due process 

guarantees to summary administrative deprivation of property 

interest). 

Your second question is: 

Whether the Director of the Texas Agricultural Experiment Station is compelled to 

give equal weight to analytical findings of 

commercial laboratories when a manufacturer 

contests the results of the state chemist. 

Section 63.094 of the Agriculture Code provides in 

part: 

(b) After receiving a notice under Subsection (a) of this section, the manufacturer 

or other person who caused the fertilizer to 

be distributed may request that the service 

submit portions of the sample analyzed to 

other chemists for independent analysis. 

After receiving a request, the service shall 

submit two portions of the sample analyzed to 

two qualified chemists selected by the 

P. 4616 
Mr.. Perry L. Adkisson - Page 12 (JM-920) 

. 

-, 

service. If requested, the service shall 

also submit one portion of the sample to the 

person requesting independent analysis. A 

request under this subsection must be filed 

with the service before the 16th day 

following the day on which notice is given. 

(c) Each of the chemists selected by the 

service under Subsection (b) of this section 

shall analyze the portion of the sample and 

certify findings to the service under oath. 

The findings shall be prepared in duplicate 

and the service shall forward one copy of 

each chemist's findings to the person who 

requested independent analysis. 

(d) The three chemical analvses obtained 

under this section mav be considered in 

determinina whether a violation of this 

chaoter has occurred. (Emphasis added.) 

Agric. Code 5 63.094. Section 63.094(d) does not dictate 

the weight to be accorded any of the three analyses in 

determining whether a violation of chapter 63 has occurred. 

Nor does it state that the analysis results will be 

dispositive of any question as to violation. 

authorizes the use 

It merely 

of the three chemical analyses in 

proceedings to determine whether a violation of chapter 63 

has occurred. See Webster's Ninth New Collegiate Dictionary 

(1983) (wmay" used nearly interchangeably with "can*@). 

w Agric. Code subch. G, H 

See 

(administrative and judicial 

proceedings for enforcing chapter 63). Neither the director 

of the Texas Agricultural Experiment Station nor any court 

that hears a case alleging violation of chapter 63 is 

compelled by section 63.094 of the Agricultural Code to give 

equal weight to analytical findings of commercial 

laboratories when a 

analysis of 

manufacturer has requested 

fertilizer 

independent 

samples pursuant to section 

63.094(b). 

SUMMARY 

The Texas Feed and Fertilizer Control 

Service has implied authority to notify the 

possessor or purchaser of fertilizer that 

laboratory analysis of the product demonstrates it to be out of compliance with the 

requirements of chapter 63 of the Agriculture 

Code. By sending this notification to the 

purchaser or possessor, the service does not 

p. 4617 
Mr. Perry L. Adkisson - Page 13 (JM-920) 

deprive the fertilizer manufacturer of 

property without due process of law. Section 

63.094(d) of the Agriculture Code does. not 

require that equal weight be given to 

analytical findings of commercial laboratories 

when a manufacturer contests the results of 

the state chemist's analysis. 

Jzyh 

MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

Lou MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 4618