Departmentof Agriculture Austin,Texas
Attention: Mr. CharlesE. Bau&man Gentlemen :
OpinionNo. O-3273 Re: Requirementsfor the sale of nursery stock.
Your letterof March 11, 1941, requestingan opinionof this department regardingthe sale of nurserystocks,floral stocks and cut flowershas had our attention.
You state that:
"In the conductof the nurseryand floralbusiness,growers of nurserystock, floral stock and producersof cut flowers send their trucks and/or other Vehiclesto parts of the State removedfrom their place of businessfor the purposeof 'peddling'such stocks and cut flowers.
"Willyou pleaseadvise this Departmentwhere the owners of such nurseriesand floralplantshave compliedwith the provisionsof the Nursery InspectionLaw, by obtainingthe requiredInspectionCertificate,and where proper agents credentialshave been issuedcoveringtheir producingplace, if the ownersof such places of businesswould be requiredto obtainany kind of additionalcertificatefrom this Department in order to peddlenurserystock, floralstocks and/or cut flowersproducedby them."
We have carefullyexaminedthe provisionsof Chapter7 of Title 4 of the RevisedCivil Statutes,and Chapter 10 of Title 19 of the Penal Code of Texas, dealingwith the subjectof nurserystocks and the regulationthereofby the Commissionerof Agriculture.
Articles135 of the RevisedCivil Statutesand 1689of the Penal Code define "nurserystock," "nursery,""dealer,""and"agent of a nurseryor dealer." Article 119 of the RevisedCivil Statutesplacesnurseryand floral stocks,cut flowers,etc., under the supervisionand controlof the Commissionerof Agriculture. Article 120 of the ReVised Civil Departmentof Agriculture, page #2 (O-3273)
Statutesand Article 1691 of the Penal Code make it unlawfulfor any personunder the circumstances set forth to keep or keep for sale certain stocks infestedwith diseaseor pests. Article I.26of the RevisedCivil Statutesand Article 1.692of the Penal Code progide for a yearly exami- nation by the Commissionerof each nurseryor other place where nursery stock is exposedfor sale. The Commissioneris requiredto issue a certifi- cate that such nurserystock is apparentlyfree from diseaseor pests, if he so determines. Article I.21of the RevisedCivilgtatutesdeclares that an infectedor diseasedtree, shrub or plant is a public nuisanceaird the Commissioneris authorizedto abate it. Articles122, 123, I.24and 125,RevisedCivil Statutes,set forth the procedurefor such abatement. Under Article l.27, RevisedCiail Statutes,and Article 1693 of the Penal Code it is the Commissioner'scertificateof freedomof diseaseor pests accompanyany shipmentor deliveryof nurserystock. It is made unlawfulto send out or delivernurserystock without this dertifi- cate. Article 131 of the RevisedCivil Statutesauthorizesthe Commissicmer to inspectall shipmentsof nurserystock. Article I.29of the Re%ised Civil Statutesgives the Commissionerauthorityto revoke a certificate of inspectionfor false representations of for violationof law or the rules and regulationsof the Commission. Article 1696 of the Penal Code it a crime to make false representations to the Commissionerfor the purposeof obtaininga certificate.Article 133 of the RevisedCivil Statutesprovidesfor reasonableinspectionfees.
ArticlesI.27 and 130 of the RevisedCivil Statutesdeal with nurserystock shipped into this State. Article 1&94ofthe Penal Code and 130 of the Revised Civil Statutesdeal with the rights and liabilitiesof transporl tation companiesand common carriers.
Article 1699 of the Penal Cods deals with the liabilityof an agent or a dealer or nurseryman; and Article 1670makes unlawfulfraudulentsales.
We have thus reviewedthe pertinentprovisionsof the RevisedCivil Statutesand the Penal Code relatingto nurserystock. It is our opinion that the certificateof inspectionrequiredby Article 126 of the Revised Civil Statutesand Article 1692of the Penal Cods is the only certificate requiredfor