January 9, 1968 

Hon. Charles R. Sarden, P.E. 

Executive Secretary 

Texas Air Control Board -. 

1100 West 49th Street 

Austin, Texae 78756 

Opinion No. M- 187, 

Re: Which of certa,ln specific 

activities inquired about 

Rualify a plant as one 

processing agricultural 

products In their natural 

state" within the meaning 

of Sec. 6(c) of Chapter 727, 

Dear Mr. Sarden: 

Your request for an opinion as to the construction of 

Section 6(c), of Article 4477-5, Vernonfs Civil Statutes, asks 

for an answer to certain questions relating to the Clean Air Act 

of Texas 1967. You are particularly concerned with a determination of a general standard or test which the Texas Air Control 

Hoard should apply to determine whether a plant can qualify as 

one "processing agricultural products In their natural state". 

The controlling legal question presented is whether certain actlvlties or operations constitute "processing agricultural 

products in their natural statel' 

6(C), 

within the meaning of Section 

of Article 4477-5, Vernon's Civil Statutes. 

Viewed In the light of the purposes of 'the statute (Clean 

Air Act of Texas, 1967), it is our opinion that such Section 6(c) 

is in law tantamount to an exception or exemption for those 

plants which process agricultural products in their natural state. 

The purpose of the Act is to 'safeguard the air resources of the 

State from pollution by controlling or abating air pollution consistent with the protection of health, general welfare and physical property of the people, operation of existing Industries and 

the economic development of the State". 

Section 6(C) provides as follows: 

Section 3, Article 4477-5. 

-i389- 
Hon. Charles R. Barden 

Opinion No. M-187 - Page 2 

“(C) The board shall establish Its rules and regulations concerning the emission of particulate matter 

from plants processing aizrlcultural products In 

their natural state according to a formula derived 

from the process weight of the materials entering 

the process. The board may not require In its 

rules and regulations that such plants meet a 

standard which requires an emission of less than 

eight percent of the procese weight of the materials 

enterim the process. ” (Emphasis Added) 

It is a well settled proposition of flaw that when a regulatory statute of general application provides for exceptions 

or exemptions a strict construction of such exception or exemption must be applied. 53 Tex. Jur.2d, 301, Statutes, Sec. 201. 

Such a construction must be reasonable and the express,terms of 

the act may not be disregarded. Also, exceptions will not be. 

extended by construction, and one who claims he is subject to an 

exemption or exception will be required to show that he ‘comes 

clearly within Its plain terms. 

It Is particularly pertinent to observe that the Legislature chose to qualify the processing of ,agrlcultural products described In Section 6(C) to those products processed ‘in their 

natural staten. Such a qualification must be given some effect, 

If possible, and we are not at liberty to disregard it. 

It is noted from your brief attached to. your request that 

In your opinion all of the products being processed and inquired 

about are subject to Section 6(c) except the following: (1) 

operating a cottonseed oil mill, (2) cotton seed Uellntlng, (3). 

extracting oil from peanuts (shelled elsewhere), .(q),butcherlng 

and processing meat products (received after having been elaughtered), (5) operation of a rendering plant for offal and waete~~ 

products from slaughter horses and meat processing plants, and 

(6) operation of rendering plants for carcasses of dead livestock. 

We note further from your statement’and brief submitted 

that you lack “familiarity with the procedure@ involved in many 

of the activities and operations listed”. Your brief states, 

“It’is felt that, rather than attempting to divelop the detailed 

information necessary to fully understand each of the,actlvitles 

and operations, the task of determining the nature of each of 

the’actlvlties and operations could well be the subject of a 

series of hearings at which representatives of the varlous lndustries affected could appear and expl$n their operations In 

light of the guidelines developed...... . 

7 

-890- 

., 
Iirjn. Charles R. Barden 

Opinion No. M-387 - Page 3 

The Attorney General has not been given anyfact deterralnattons by the Texas Air Control Board concerning whether the 

products are being processed In their natural condition or stata 

In nature, so that the law may be applied to the'facts as /~rou 

Slnd'them. Unless the fact findings ara undisputed and not subject to opposing inferences, this office is unable to determine, 

whether the six agrlcultural.products or activities listed above 

are necesaarlly being processed In their natural state. Therefore, this office Is without authority to make such factual determinatlons. Attorney General Opdnions Nos. O-2911 (19&I), WW-277 

(1957), and C-697 (1966). Determination of these 'questions by the 

Texas Air Control Board Is a matter of administrative det&mlnatlon 

which Is subject to judicial review by the Court&under the substantial evidence rule, the test there being whether the board hai 

acted lnan arbitrary, unreasonable or capricious manner or with6ut substantial evidence to support its. findings. 

Aa a general guidehe, you~are advised that agricultural 

products In their natural state are those which are brought to 

a plant for processing In substantially the same conditions as 

they existed In nature and have not been'artlficlally changed 

from their basic form and substance as found In nature. 

v. Farmere Peanut Co., 128 F.2d 404 (C.A. 5th, 1942); fntersta e 

2ommerce Commlseion v,.Weldon, 90 F.S. 873, affirmed In 1 Et% 

367 (C.A 6th, 1951) and Cert. Den. lri 342 U.S. 727 (1951);. 

Webiter's'Third New &t&national Dictionary, "natural". 

We trust that from the above general guidelines, the Texas 

Ed Air Control Board can proceed to develop and find the necessary 

facts in determining whether an agricultural product being processed is subject to Section 6(C), Art. 4477-,5, supra. 

----v-v SUMMARY 

‘., 

Under Section 6(c), of Article 4477-5, 

Vernon's Civil Statutes, agricultural pro-. 

ducts In their natural state are those which 

are brought to a, plant Sor processipg in substantially the same condition as they existe~d 

i in nature and have,not been artlSiclally 

changed from their basic form and substance 

as found in nature, Factual determinations 

under this standard must be made by the Texas 
, 

Hon. Charles R. Barden 

Opinion No. M-187 - Page' 4 

.' '. 

i 

Air Control Board when promulgating r&i 

under Section 6(c), supra. 

.,' .' 

'I 

Prepared by Roger Tyler 

Assietant Attorney Ge'neral 

APPROVED: 

,. 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

$erne Taylor, Co-Chairman 

Joh.n Grace 

John Banks 

Robert Flowers 

Dyer Moore, Jr. 

A. J. CARUBBI, JR, 

.Staf'f Legal A?sistant 

,. . .:,892.t. .,... ,._ . . . 

.” 

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