Could the Texas Animal Health Commission inspect livestock leaving Texas and use Form 2-71 even though the form was not named in statute?
Apply this to your situation
This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-47: Interstate Livestock Inspections and Form 2-71
Plain-English summary
JM-47 concluded that the Texas Animal Health Commission could, in its discretion, inspect livestock moving from Texas to another state. Section 161.048 authorized inspection of any livestock shipment being transported in Texas for specified animal-health and legal-compliance purposes.
"The Texas Animal Health Commission may, at its discretion, conduct inspections of livestock moving from Texas to another state; it is not required to do so."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"Section 161.048 of the code specifically permits 'an agent' of the commission to stop and inspect any shipment of livestock being transported in this state."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
The commission could use Form 2-71 for those inspections even though the form was not expressly named in statute. The governing law authorized commission agents—not only veterinarians—to inspect, and the form required only an inspector's signature.
"The Texas Animal Health Commission may employ Form 2-71 for the purpose of conducting such inspections."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"Section 161.048 permits 'an agent' of the commission to conduct inspections; there is no requirement that inspections be conducted by veterinarians."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
The statutory word "may" made inspections permissive and discretionary rather than mandatory, contrasting with a separate mandatory inspection program in designated counties.
"The word 'may' ordinarily connotes discretion or permission."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"The commissioner's discretion to inspect is in contrast to the mandatory inspection procedure established in 50 designated counties by section 146.051 et seq. of the Agriculture Code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What could an Animal Health Commission agent inspect?
Any livestock or livestock-product shipment being transported in Texas, for statutory compliance, quarantine-origin, and animal-health or public-health risks.
"An agent of the commission is entitled to stop and inspect a shipment of livestock or livestock products being transported in this state."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
What purposes supported an inspection?
The agent could determine compliance with administered laws and rules, whether the shipment came from a quarantined area or herd, or whether it presented danger through insects or communicable or noncommunicable disease.
"[An inspection may] determine if the shipment is in compliance with the laws and rules administered by the commission affecting the shipment."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"[An inspection may] determine if the shipment presents a danger to the public health or livestock industry through insect infestation or through a communicable or noncommunicable disease."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Could the commission detain a shipment?
Yes, when it was being transported in violation of law or a commission rule, and the commission could require unloading at the nearest available facility.
"The commission may detain a shipment of livestock or livestock products that is being transported in violation of law or a rule of the commission."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"The commission may require that the shipment be unloaded at the nearest available loading facility."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Were outbound shipments covered?
Yes. A shipment leaving Texas was still being transported in Texas while within the state, so the statute's unqualified authorization applied.
"Accordingly, we construe section 161.048, Agriculture Code, to repose in the Texas Animal Health Commission discretion to stop and inspect any shipment of livestock for the reasons set forth in the statute."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Was the commission required to inspect every outbound shipment?
No. "May" made the authority discretionary.
"The Texas Animal Health Commission may, at its discretion, conduct inspections of livestock moving from Texas to another state; it is not required to do so."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Why could the commission use Form 2-71 without express statutory mention?
The form implemented an inspection the statute already authorized, and no law identified by the opinion required veterinarian certification.
"We can find no statute, nor have you directed us to one, which requires veterinarian certification for inspections."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"Thus, we conclude that the form which you submitted to us may be used by the commission for purposes of conducting inspections pursuant to section 161.048 of the Agriculture Code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Did other states accept the form?
The requester told the Attorney General that some states accepted it instead of an official veterinarian-issued health certificate.
"You have informed us that some states will accept this certification in lieu of an official health certificate issued by a veterinarian."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Background and statutory framework
Chapter 161 created the commission, required it to protect livestock from disease, and authorized rules necessary to carry out its duties.
"Chapter 161 of the Agriculture Code creates and sets forth the duties and powers of the Texas Animal Health Commission."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf"The commission is required to protect all livestock from various diseases under section 161.041 of the Agriculture Code and is empowered, inter alia, to promulgate rules necessary for the enforcement of its duties."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
JM-47 applied the rule that clear, unambiguous statutory language required no construction and the ordinary discretionary meaning of "may."
"There is no necessity for construction when a statute is expressed in unambiguous language and its meaning is clear and obvious."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Holding
"(1) The Texas Animal Health Commission may, at its discretion, conduct inspections of livestock moving from Texas to another state; it is not required to do so. (2) The Texas Animal Health Commission may employ Form 2-71 for the purpose of conducting such inspections."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Citations and references
Statutes discussed by JM-47:
- "chapter 161 of the Agriculture Code" Official PDF
- "section 161.041 of the Agriculture Code" Official PDF
- "section 161.046 of the Agriculture Code" Official PDF
- "section 161.048 of the Agriculture Code" Official PDF
- "section 146.051 et seq. of the Agriculture Code" Official PDF
Selected cases cited by JM-47:
- "Trimmier v. Carlton, 264 S.W. 253, 263 (Tex. Civ. App. - Austin 1924, writ granted)" Official PDF
- "Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968)" Official PDF
- "District Grand Lodge No. 25 Grand United Order of Odd Fellows v. Jones, 160 S.W.2d 915, 922 (Tex. 1942)" Official PDF
- "San Angelo National Bank v. Fitzpatrick, 30 S.W. 1053, 1054" Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0047
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0047.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
July 25, 1983
John W. Holcombe, D.V.M.
Executive Director
Texas Animal Health Commission
P. O. Box 12966
Austin, Texas 78711
Opinion No. JM-47
Re: Authority of the Texas Animal Health Commission to use Form 2-71 pertaining to inspections of livestock moving interstate
Dear Dr. Holcombe:
You ask the following questions:
May the Texas Animal Health Commission provide inspections for livestock moving from Texas to another state?
May the commission use Form 2-71 for this purpose even though it is not mentioned in the statutes governing the commission?
We answer both of your questions in the affirmative.
Chapter 161 of the Agriculture Code creates and sets forth the duties and powers of the Texas Animal Health Commission. The commission is required to protect all livestock from various diseases under section 161.041 of the Agriculture Code and is empowered, inter alia, to promulgate rules necessary for the enforcement of its duties. Agric. Code §161.046. Section 161.048 of the code specifically permits "an agent" of the commission to stop and inspect any shipment of livestock being transported in this state. The section sets forth the following:
(a) An agent of the commission is entitled to stop and inspect a shipment of livestock or livestock products being transported in this state in order to:
(1) determine if the shipment is in compliance with the laws and rules administered by the commission affecting the shipment;
(2) determine if the shipment originated from a quarantined area or herd; or
(3) determine if the shipment presents a danger to the public health or livestock industry through insect infestation or through a communicable or noncommunicable disease.
(b) The commission may detain a shipment of livestock or livestock products that is being transported in violation of law or a rule of the commission. The commission may require that the shipment be unloaded at the nearest available loading facility.
(c) The commission may not inspect a railroad train at any point other than a terminal.
(d) The commission may post signs on public highways and use signaling devices, including red lights, in conjunction with signs, if necessary to effectively signal and stop vehicles for inspection.
(e) In this section, 'livestock product' includes hides; bones; hoofs; horns; viscera; parts of animal bodies; litter, straw, or hay used for bedding; and any other substance capable of carrying insects or a disease that may endanger the livestock industry. (Emphasis added).
See also Agric. Code §§161.041, 161.043, 161.044, 161.047.
There is no necessity for construction when a statute is expressed in unambiguous language and its meaning is clear and obvious. Trimmier v. Carlton, 264 S.W. 253, 263 (Tex. Civ. App. - Austin 1924, writ granted). See also Gilmore v. Waples, 188 S.W. 1037, 1038 (Tex. 1916); Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968); National Life Insurance Company v. Stegall, 169 S.W.2d 155, 157 (Tex. 1943). The word "may" ordinarily connotes discretion or permission, District Grand Lodge No. 25 Grand United Order of Odd Fellows v. Jones, 160 S.W.2d 915, 922 (Tex. 1942), and it will not be treated as a word of command unless there is something in the context or subject matter of the act to indicate that it was used in that sense. San Angelo National Bank v. Fitzpatrick, 30 S.W. 1053, 1054. Accordingly, we construe section 161.048, Agriculture Code, to repose in the Texas Animal Health Commission discretion to stop and inspect any shipment of livestock for the reasons set forth in the statute. The commissioner's discretion to inspect is in contrast to the mandatory inspection procedure established in 50 designated counties by section 146.051 et seq. of the Agriculture Code, which creates a county office of inspector of hides and animals.
Your second question asks whether a form adopted by the commissioner, Form 2-71, may be used for the purpose of conducting livestock inspections even though it is not mentioned in the statutes governing the commission. We conclude that it may. You have informed us that some states will accept this certification in lieu of an official health certificate issued by a veterinarian. We can find no statute, nor have you directed us to one, which requires veterinarian certification for inspections. Section 161.048 permits "an agent" of the commission to conduct inspections; there is no requirement that inspections be conducted by veterinarians. The form, which you included for our examination, need be signed only by an "inspector," and there is no requirement that he be a veterinarian. Thus, we conclude that the form which you submitted to us may be used by the commission for purposes of conducting inspections pursuant to section 161.048 of the Agriculture Code.
SUMMARY
(1) The Texas Animal Health Commission may, at its discretion, conduct inspections of livestock moving from Texas to another state; it is not required to do so. (2) The Texas Animal Health Commission may employ Form 2-71 for the purpose of conducting such inspections.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
George Warner
Get today's answer for your situation
You just read a 1983 opinion on this question. Ezel checks the current Texas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.