Does the Texas Commercial Feed Control Act apply to a commercial feed lot that boards and feeds another person's cattle?

Texas AG Opinion JM-922: Does the Feed Control Act Cover Commercial Feed Lots?

Plain-English summary

A commercial feed lot takes in other people's cattle, houses them, and feeds them until they are ready for market. The owner of the animals pays for that. The question the legislature put to the Attorney General was whether a feed lot doing this is covered by the Texas Commercial Feed Control Act of 1957, the law that regulates the manufacture and sale of commercial feed and requires guarantees and labeling to protect the people who buy it. Two earlier Attorney General opinions, one from 1963 and one from 1976, had said no. The senators asking wanted to know if those opinions got it right.

The Attorney General said they did, and declined to change course. The heart of it is a distinction between selling something and providing a service. The Feed Control Act is aimed at protecting people who buy feed. If a rancher walks into a store, buys sacks of feed, and hauls them home to feed his own herd, he is a purchaser, and the Act's labeling and guarantee rules protect him. But a feed lot is doing something different. When a rancher hands his cattle over to a feed lot to be kept and fed, the rancher is not buying feed. He is buying a service, the keeping of his animals. In old legal language this arrangement is called "agistment," which is just the boarding of animals for grazing or feeding, and it is a kind of bailment, meaning the feed lot is holding someone else's property and owes duties over it. The rancher is still protected, but by a different body of law: if his animals are harmed, the feed lot has to prove the harm was not its fault. So the rancher does not fall through the cracks; he is simply covered as a bailor rather than as a feed purchaser.

What really cemented the answer was 25 years of legislative silence. Since the 1963 opinion, the legislature had met in regular session many times and never amended the Act to say it covers feed lots. It amended the Act once, on an unrelated fee point, and later folded the whole thing into the Agriculture Code, both times leaving the feed-lot interpretation alone. Texas courts treat that kind of inaction as approval: when lawmakers know how an agency has read a statute and keep re-passing it without change, they are presumed to have blessed that reading. The Attorney General also swatted down an argument that the recodification had quietly widened the law through a tweaked definition of "distribute," pointing out the key "otherwise supply" language had been in the statute all along, and that what a feed lot supplies is a service, not feed. If Texas wants feed lots regulated under this Act, the opinion said, that is a decision for the legislature to make openly, not something to be read into a subtle change in definitions.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

This opinion rests heavily on the state of the Agriculture Code and the Commercial Feed Control Act as they stood in the late 1980s, and on decades of legislative inaction up to that point. The legislature has met many times since, and the feed, commercial-feed-lot, and animal-agriculture statutes have been revisited, so the specific section numbers in chapter 141 and the scope of regulation should be checked against the current Agriculture Code and the rules of the state agency that administers feed regulation today. The underlying legal ideas here, that a bailment for keeping and feeding animals is a service rather than a sale, and that long legislative acquiescence supports an agency's construction of a statute, remain sound, but anyone operating or regulating a feed lot now should confirm the current statutory scheme rather than rely on the 1988 provisions cited here.

Who this opinion affected (as of 1988)

Commercial feed lot operators: The opinion confirmed they were not subject to the Feed Control Act's requirements or its criminal penalties when they merely kept and fed an owner's stock, leaving them governed by agistment and bailment law instead.

Ranchers and livestock owners: The opinion clarified that when they board animals at a feed lot, they are protected as bailors (with the feed lot bearing the burden on any damage claim) rather than as feed purchasers.

The legislature: The opinion made clear that extending the Act to cover feed lots is a policy choice for lawmakers to make expressly, and that its past silence had been read as approval of the existing interpretation.

Common questions

Is a feed lot that boards my cattle regulated under the Feed Control Act?
No. The Attorney General concluded that a feed lot keeping and feeding an owner's stock is providing a service, not selling or distributing feed, so it falls outside the Act.

Am I unprotected if the feed lot is not covered by the Act?
No. You are protected under the law of agistment as a bailor. If your animals are damaged, the feed lot as bailee has the burden of proving the damage was not caused by its negligence.

Didn't moving the Act into the Agriculture Code change the definition of "distribute" enough to cover feed lots?
No. The Attorney General found the codification made no substantive change. The "otherwise supply" language was already in the original statute, and what a feed lot supplies is the service of keeping stock, not feed.

Why did decades of legislative inaction matter so much?
Because when the legislature repeatedly re-enacts or amends a statute without changing an interpretation the Attorney General has placed on it, courts treat that as the legislature ratifying that interpretation.

Could feed lots ever be brought under the Act?
Yes, but that is a policy decision for the legislature. The opinion said if lawmakers want to protect stock owners beyond their status as bailors, they can amend the statute to say so.

Background and statutory framework

The Texas Commercial Feed Control Act of 1957 was enacted to protect purchasers of feed. Its emergency clause recited that existing laws were inadequate to regulate the manufacture and sale of commercial feed, that raisers of livestock, poultry, and other animals need uniform guaranties and labeling of feeds offered to them, and that Texas law should conform to feeders' and manufacturers' practices and afford maximum protection to purchasers of feed (Acts 1957, 55th Leg., ch. 23, § 21). The Act was originally found at article 3881e, V.T.C.S., and is now codified as chapter 141 of the Agriculture Code; it was amended only once, on an inspection-fee point with no bearing on coverage (Acts 1977, 65th Leg., ch. 641), and the codification was without substantive change (Agriculture Code § 1.001).

Six years after passage, Attorney General Opinion C-105 (1963) determined that the Act does not apply to a commercial feed lot that contracts with a stock owner to keep and feed the stock. The basis was that rather than selling feed to a purchaser, a feed lot performs a service, the keeping of stock, for which feeding is incidental. Feed lot operators are engaged in agistment, the bailment of animals for grazing and pasturing (Barclay v. Burge, 245 S.W.2d 1021 (Tex. Civ. App. - Beaumont 1952, no writ)). The sale-service distinction separates those subject to the Act from those who are not, and it is consistent with the Act's protective policy: a rancher who buys feed for his own stock is protected as a purchaser, while a rancher who contracts with a feed lot is protected instead under agistment law as a bailor, with the feed lot as bailee bearing the burden of showing that any damage was not caused by its negligence (Barclay v. Burge, 245 S.W.2d at 1022-23).

Although a close question, the Attorney General emphasized this was not a first interpretation. In the quarter century since C-105, no court had rejected the office's reading, and the legislature had not amended the Act to cover feed lots despite meeting in fifteen regular sessions. That inaction was treated as dispositive legislative sanction. The point was reinforced by Opinion H-895 (1976), which reaffirmed C-105 just before the 1977 session, after which the 65th Legislature (the only one ever to amend the Act) declined to amend it to reject C-105; amending an act in some respects while leaving an Attorney General construction untouched is strong evidence of legislative sanction (San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995, 998 (Tex. 1947)). The 67th Legislature then adopted the Agriculture Code revision without amending the Act, and reenactment without change presumes ratification of prior constructions (Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex. 1968); Federal Crude Oil Co. v. Yount-Lee Oil Co., 52 S.W.2d 56, 62 (Tex. 1932); Acts 1981, 67th Leg., ch. 388). Because the Act carries criminal sanctions (Agriculture Code ch. 141, subchapter G), only the most compelling reasons would justify changing the office's view.

The Attorney General rejected the argument that codification broadened the Act by omitting a definition of "sell" and defining "distribute" to include "otherwise supply" (Agriculture Code § 141.001(6)). The former article 3881e, § 3, already defined "distribute" to mean to offer for sale, sell, barter, or otherwise supply commercial feeds, so both versions always applied to feed that was otherwise supplied; C-105 simply held that what a feed lot supplies is not feed but the service of keeping stock. Such a significant change as broadening the Act's scope cannot be inferred from so subtle a revision. Finally, the argument that the sale-service distinction makes no sense for modern feed lots failed because modern lots share with older ones the characteristic of being bailees of the stock they keep; whether to protect stock owners beyond their status as bailors by subjecting feed lots to chapter 141 is a policy matter for the legislature (Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex. 1963)).

Citations

Statutory authority:

• Texas Commercial Feed Control Act of 1957 (former V.T.C.S. article 3881e; now Agriculture Code chapter 141)
• Agriculture Code § 141.001(6) (definition of "distribute": sell, offer for sale, barter, exchange, or otherwise supply)
• Agriculture Code § 1.001 (codification without substantive change)
• Agriculture Code chapter 141, subchapter G (criminal sanctions)
• Acts 1957, 55th Leg., ch. 23, § 21, at 46 (original act and emergency clause); Acts 1977, 65th Leg., ch. 641, at 1629 (inspection-fee amendment); Acts 1981, 67th Leg., ch. 388, at 1012 (Agriculture Code revision)

Cases (all Texas state courts):

• Barclay v. Burge, 245 S.W.2d 1021, 1022-23 (Tex. Civ. App. - Beaumont 1952, no writ) (feed lot as bailee/agister; burden of proof on damage)
• San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995, 998 (Tex. 1947) (Texas Supreme Court; amending an act while leaving a construction untouched signals legislative sanction)
• Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex. 1968) (Texas Supreme Court; reenactment without change presumes ratification of prior constructions)
• Federal Crude Oil Co. v. Yount-Lee Oil Co., 52 S.W.2d 56, 62 (Tex. 1932) (Texas Supreme Court; same principle)
• Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex. 1963) (Texas Supreme Court; policy choices belong to the legislature)

Prior Attorney General materials reconsidered and reaffirmed: C-105 (1963); H-895 (1976).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-922
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0922.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

June 24, 1988

Honorable Roy Blake
Chairman, Senate Administration
Texas State Senate
P. O. Box 12068
Austin, Texas 78769

Honorable Bill Haley
Chairman, Public Education Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78722

Opinion No. JM-922

Re: Whether commercial feed lots are subject to the Texas Feed Control Act of 1957 (RQ-1314)

Gentlemen:

You ask that we examine Attorney General Opinions C-105 (1963) and H-895 (1976) to determine whether they correctly decided that commercial feed lots are not subject to the Texas Commercial Feed Control Act of 1957.

The Texas Commercial Feed Control Act of 1957[1] was enacted to protect the purchasers of feed. In setting out the public necessity for the act in the emergency clause, the legislature noted:

The fact that present laws are not adequate to regulate the manufacture and sale of commercial feed in Texas; the fact that raisers in Texas of livestock, poultry, and other animals need uniform guaranties and labeling of feeds 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 feeders and feed manufacturers, and to afford maximum protection to the purchasers of feed, create an emergency and imperative public necessity . . . .

Acts 1957, 55th Leg., ch. 23, § 21 at 46.

[1] The act was originally found at article 3881e, V.T.C.S., but is now codified as chapter 141 of the Agriculture Code. The act has been amended only once. Acts 1977, 65th Leg., ch. 641 at 1629. That amendment, relating to the inspection fee provided by the act, has no bearing on what transactions are covered by the act. Revision of the act as chapter 141 of the Agriculture Code was without substantive change. Agric. Code § 1.001.

Six years after the passage of the act, the attorney general was called upon to advise whether the act's provisions apply to a commercial feed lot that contracts with the owner of stock to keep and feed the stock at the feed lot. Attorney General Opinion C-105 (1963) determined that it did not. The basis for the holding in C-105 is that rather than selling feed to a purchaser, a commercial feed lot performs a service, the keeping of stock, for which feeding is incidental. In traditional terms, feed lot operators are engaged in "agistment," the bailment of animals for the purpose of grazing and pasturing. See Barclay v. Burge, 245 S.W.2d 1021 (Tex. Civ. App. - Beaumont 1952, no writ). The distinction between sale and service separates those who are subject to the act from those who are not. Feeding animals as part of agistment is not "distributing feed" within the meaning of the Texas Commercial Feed Control Act of 1957.

The distinction between sale and service is often inexact. In this context, however, when the distinction as applied is considered against the background of the act's policy, it stands to reason. As set out in the act's emergency clause, the policy behind the act is to protect the purchasers of feed. When a rancher buys feed to give directly to his own stock, he is protected as a purchaser by the act. When a rancher contracts with a feed lot to keep and feed his stock, he is not protected by the act, since he is not a purchaser, but he is protected under the law of agistment as a bailor. If the stock is damaged, the burden of proof is upon the feed lot as bailee to show that the damage was not caused by negligence on the feed lot's part. Barclay v. Burge, 245 S.W.2d at 1022-23. So the sale-service distinction as applied is consistent with the policy behind the act.

Although this may be a close question, we are not interpreting the act for the first time. In the quarter of a century that has passed since Attorney General Opinion C-105 was issued, no court has rejected this office's interpretation of the act, and the legislature has not amended the act so as to make clear any intention to cover commercial feed lots. We view this legislative inaction as dispositive of this question of statutory interpretation. Since 1963 the legislature has met in regular session fifteen times. By failing to amend this act, the legislature has sanctioned the construction set out in Attorney General Opinion C-105.

Our conclusion, however, is supported by more than this twenty-five year failure to amend the act. In 1976, at the behest of the House Agriculture and Livestock Committee, this office reviewed Attorney General Opinion C-105. Just before the opening of the 1977 regular session of the 65th Legislature, this office advised the House Agriculture and Livestock Committee in Attorney General Opinion H-895 (1976) that it reaffirmed Attorney General Opinion C-105. Yet even though the 65th Legislature is the only legislature to ever amend the act (Acts 1977, 65th Leg., ch. 641 at 1629), it did not amend the act so as to reject Attorney General Opinion C-105. When an act is amended in some respect, but not amended to change a construction placed on the act by the attorney general, that is strong evidence of legislative sanction of the attorney general's construction. See San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995, 998 (Tex. 1947).

As further evidence of legislative sanction of this office's construction, the 67th Legislature adopted a revision of the statutes relating to agriculture, incorporating them into the Agriculture Code, and again chose not to amend the act. See Acts 1981, 67th Leg., ch. 388 at 1012. When the legislature reenacts a statute without change, the legislature is presumed to have ratified prior statutory constructions. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex. 1968); Federal Crude Oil Co. v. Yount-Lee Oil Co., 52 S.W.2d 56, 62 (Tex. 1932). Given all this evidence of legislative approval of this office's construction, we are not inclined to overrule Attorney General Opinion C-105.

Moreover, with respect to the Texas Feed Control Act of 1957, this office has for twenty-five years advised that commercial feed lot operators do not come within its terms and are therefore not subject to its criminal sanctions, found in subchapter G of chapter 141 of the Agriculture Code. Given this criminal liability, only the very most compelling reasons would cause us to change our view of the scope of the act.

As one reason, it is suggested that when the act was revised and incorporated into the Agriculture Code, its terms were changed so that they now cover commercial feed lots. The argument runs as follows: By omitting any definition of "sell" in section 141.001 and by defining "distribute" to mean "otherwise supply" in section 141.001(6), the legislature rejected the sale-service distinction and thereby subjected commercial feed lot owners to chapter 141 of the Agriculture Code.

In fact, however, the terms of the act were not changed by the adoption of the Agriculture Code. Former article 3881e, section 3, provided in pertinent part (emphasis added):

(b) The term "sell" or "sale" includes exchange.

(c) The term "distribute" means to offer for sale, sell, barter, or otherwise supply commercial feeds.

The Agriculture Code provides in section 141.001(6) (emphasis added):

"Distribute" means sell, offer for sale, barter, exchange, or otherwise supply.

Thus both the original version and the codification always applied to feed that was otherwise supplied. Attorney General Opinion C-105 simply held that what is being supplied by a commercial feed lot is not feed, but the service of keeping stock.

The revision of the Texas Commercial Feed Control Act of 1957, when codified as chapter 141 of the Agriculture Code, made no change in the law, as construed in Attorney General Opinion C-105. Moreover, we do not think that a change as significant as broadening the scope of the act can be inferred from such a subtle revision of the definitions of the statute.

It is also suggested as a reason for changing our interpretation that the sale-service distinction makes no sense in light of the operations of modern commercial feed lots. We have reviewed the materials submitted regarding modern commercial feed lots. Modern lots share with lots of thirty years ago the characteristic of being bailees of the stock they keep. If it is desirable, however, in light of modern operations to provide owners of stock protection beyond their status as bailors by subjecting commercial feed lots to chapter 141 of the Agriculture Code, that is a policy matter for the legislature. See Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex. 1963).

SUMMARY

Having reconsidered Attorney General Opinions C-105 and H-895, we again hold that the Texas Commercial Feed Control Act of 1957, now codified as chapter 141 of the Agriculture Code, does not apply to feed lots which merely keep and feed stock for the owner.

Very truly yours,

JIM 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 F. Scott McCown
Assistant Attorney General