Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENER.L\L . STATE OF TEXAS

JOHN CORNYN

August 7,2002

The Honorable Tony Goolsby Opinion No. JC-0539

Chair, Committee on House Administration

Texas House of Representatives Re: Whether a slaughterhouse in Texas that

P.O. Box 2910 slaughters, processes, possesses, sells, or trans-

Austin, Texas 78768-2910 ports horse-meat to foreign countries to be

consumed by humans there violates section

149.002 or 149.003 of the Agriculture Code, and

related questions (RQ-05 12-JC)

Dear Representative Goolsby:

Under section 149.002 of the Agriculture Code, a person who sells horse-meat as food for

human consumption or who possesses horse-meat intending to sell it as food for human consumption

commits a criminal offense. See TEX. AGRIC. CODE ANN. 8 149.002 (Vernon Supp. 2002); see id.

5 149.005 (prescribing penalty). Similarly, under section 149.003, a person who “transfers

horse[-Imeat to a person who intends to sell” it as food for human consumption or who knows or

reasonably should know that the person receiving the horse-meat intends to sell it as food for human

consumption commits a criminal offense. Id. 8 149.003; see id. 5 149.005 (prescribing penalty).

You ask whether these sections and other portions of chapter 149 “apply to horse slaughter plants

in Texas [that] process, possess, sell[,] and transport horse[-]meat to foreign countries as food for

human consumption in those countries.“* Assuming that the plant operators have the requisite intent

or knowledge, we conclude that the sections apply.

Ifwe conclude that chapter 149 applies to horse slaughter plants, you ask whether federal law

preempts “or in any way limit[s]” prosecution. See Request Letter, supra note 1, at 1. We do not

believe that the federal Meat Inspection Act, 21 U.S.C. ch. 12, preempts enforcement of the state

statutes. See 21 U.S.C. ch. 12 (2000). You ask finally which state agency has “power to enforce

violations of’ chapter 149-the Texas Department of Agriculture (the “Department”) or some other

entity. Request Letter, supra note 1, at 1. The Department has no authority to investigate or assist

in prosecuting violations of chapter 149. Rather, local prosecutors may investigate and prosecute

alleged violations of chapter 149. The Texas Commissioner of Health also has some authority to

‘Letter from Honorable Tony Goolsby, Chair, Committee on House Administration, Texas House of

Representatives, to Honorable John Comyn, Texas Attorney General (Feb. 13,2002) (on file with Opinion Committee)

[hereinafter Request Letter].

The Honorable Tony Goolsby - Page 2 (JC-0539)

inspect slaughterhouses that kill horses for human consumption, but no authority to prosecute a

criminal action under chapter 149.

We understand that, in part because of foot-and-mouth disease in Europe, European countries

where humans eat horse-meat are turning to North America for a substitute for beef and lamb. See

Amy Worden, Foot-and-Mouth Disease Boosts Demand for U.S. Horse[-]Meat Exports,

PHILADELPHIAINQUIRER, Apr. 25,2001, available at http://www.purefood.ornlmadcow/horse4250 1.cfm

(last visited July 17, 2002) [hereinafter Worden]; Demand for horse[-Jmeat on the rise (WBTV

article), available at http://www.wbtv.com/~lobal/Frameset.asp?P=/Global/sto~.asp?s=338305

[hereinafter WBTV Article]. While many people in this country consider horse-meat “a decidedly

unromantic commodity” and even “revolting,” it “is considered a delicacy to its devotees in France”

and elsewhere. Air France v. Owens, 689 F. Supp. 663,663-64 & n.1 @I.D. Tex.), afyd on other

grounds, 845 F.2d 544 (5th Cir. 1988); Hill Packing Co. v. City ofNew York, 56 N.Y.S.2d 548,550

(NY. 1945), affb, 61 N.Y.S.2d 380 (N-Y. App. Div. 1946). Because ofthe increased demand, the

sale ofhorses for slaughter has become correspondingly lucrative. See Aaron Lake, 1998LegisZative

Review, 5 ANIMAL LAW 89,104 (1999) (“Many horses were sold to slaughter houses for as much as

$1000 in 1998.“); Worden, supra p. 2; WBTV Article, supra p. 2. National media report that at

least two of the slaughterhouses killing horses to be eaten by humans in Europe and elsewhere

are located in Texas. CNN has reported, for example, that horses auctioned in California “are often

trucked to Texas slaughterhouses, and eventually end up in European and Asian meat markets and

restaurants.” Don Knapp, California to vote on sale of horsef-Imeat, CNN, July 18,1998, available

at http://wwwcnn.com/HEALTH./9807/18/horse.meat/ (last visited July 17,2002); see also Worden,

supra p. 2 (stating that in first quarter of 2001, 11,000 horses were killed in Texas, “home to two

slaughterhouses,” compared with 8,600 in the last quarter of 2000). See generaZZy OFFICE OF HOUSE

BILL ANALYSIS, BILL ANALYSIS, Tex. H.B. 1391,77th Leg., R.S. (2001) (providing background on

current law that prohibits sale of horse-meat and noting increase in practice of slaughtering horses

in Texas to be consumed by humans).

Chapter 149 of the Agriculture Code criminalizes the slaughter of horses and sale of horse-

meat for human consumption.2 See TEX. AGRIC. CODE ANN. 8 149.001 (Vernon Supp. 2002)

(defining horse-meat as “flesh of an animal of the genus equus”). Section 149.002 makes the sale

or possession of horse-meat as food for human consumption a criminal offense:

A person commits an offense if:

(1) the person sells, offers for sale, or exhibits for sale

horse[]meat as food for human consumption; or

2We find nothing in state law that criminalizes the slaughter of horses and sale of horse-meat for purposes other

than human consumption. CJ: OFFICEOFHOUSE BILL ANALYSIS,BILL ANALYSIS, Tex. H.B. 1391,77th Leg., R.S. (2001)

(stating that horses may be rendered, “which turns horse carcasses into products such as paint thinner, soap, or pet

food”).

The Honorable Tony Goolsby - Page 3 (JC-0539)

(2) the person possesses horse[-]meat with the intent to sell

the horse[-]meat as food for human consumption.

Id. 8 149.002; see also 7 MICHAEL J. MCCORMICK,THOMASD. BLACKWELL, & BETTY BLACKWELL,

TEXAS PRACTICE: CRIMINAL FORMS & TRIAL MANUAL 5 32.32 (1995) (setting out complaint or

indictment form for sale of horse-meat). Section 149.003 similarly criminalizes the transfer of

horse-meat to a person who intends to sell it as food for human consumption:

A person commits an offense if the person:

(1) transfers horse[-]meat to a person who intends to sell the

horse[-Imeat, offer or exhibit it for sale, or possess it for sale as food

for human consumption; and

(2) knows or in the exercise of reasonable discretion should

know that the person receiving the horse[-]meat intends to sell the

horse[-Imeat, offer or exhibit it for sale, or possess it for sale as food

for human consumption.

TEX. AGRIC. CODE ANN. 8 149.003 (Vernon Supp. 2002); see also 7 MICHAEL J. MCCORMICK,

THOMASD. BLACKWELL, &BETTY BLACKWELL,TEXAS PRACTICE:CRIMINALFORMS& TRIALMANUAL

8 32.33 (1995) (setting out complaint or indictment form for transfer of horse-meat). See generally

Gordy v. State, 268 S. W.2d 126 (Tex. Crim. App. 1953) (regarding prosecution for unlawful transfer

of horse-meat to person when transferor knew or should have known meat was intended for human

consumption). A first offense may be punished by a fine of $1,000 or less, a jail term ranging from

thirty days to two years, or both. See TEX. AGRIC. CODE ANN. § 149.005(a) (Vernon Supp. 2002).

A subsequent offense may be punished by “imprisonment in the institutional division of the Texas

Department of Criminal Justice for” two to five years. Id. 5 149.005(b); see id. 8 149.006 (requiring

court to enjoin convicted slaughterer from “slaughtering animals, selling meat, transporting meat,

or in any manner purveying meat to the public as food for human consumption”). Chapter 149 does

not affect municipal ordinances regulating the sale or possession of horse-meat or the licensing of

horse-meat dealers unless the ordinance “directly conflicts” with the chapter. Id. fj 149.007.

To answer your first question, we conclude that chapter 149 of the Agriculture Code applies

to horse slaughter plants in Texas that process, possess, sell, or transport horse-meat to foreign

countries as food for human consumption in those countries. You ask specifically whether

“[clhapter 149 of the Texas Agriculture Code appl[ies] to horse slaughter plants in Texas [that]

process, possess, sell[,] and transport horse[-]meat for human consumption in those countries.”

Request Letter, supra note 1, at 1. Section 149.002 explicitly makes it a crime to sell, offer to sell, or

possess intending to sell horse-meat for human consumption. See TEX. AGRIC. CODEANN. 8 149.002

(Vernon Supp. 2002). Likewise, section 149.003 explicitly makes it a crime to transfer horse-meat

to a person who intends to sell, offer for sale, or possess for sale the meat for human consumption

or to transfer horse-meat to a person who, the seller should know “in the exercise of reasonable

The Honorable Tony Goolsby - Page 4 (JC-0539)

discretion,” intends to sell, to offer for sale, or to possess for sale the meat for human consumption.

See id. 8 149.003; see also TEX. GOV’T CODE ANN. 9 3 11.005(2) (Vernon 1998) (defining “person”

generally to include corporation, partnership, association, and individual). Neither section 149.002

nor section 149.003 hinge upon the location where the horse-meat will be consumed, be it in Texas

or elsewhere.

Assuming that a slaughterer has the intent or knowledge specified in section 149.002 or

149.003, he or she may be prosecuted for violating these sections of the Agriculture Code. “A

person acts intentionally, or with intent, with respect to the nature of [certain] conduct or to a result

of [the] conduct when” the person consciously desires to “engage in the conduct or cause the result.”

TEX. PEN. CODE ANN. 8 6.03(a) (Vernon 1994). “A person acts knowingly, or with knowledge, with

respect to the nature of [certain] conduct or to circumstances surrounding [it] when [the person] is

aware of the nature of [the] conduct or that the circumstances exist. A person acts knowingly, or

with knowledge, with respect to a result of [certain] conduct when [the person] is aware that [the]

conduct is reasonably certain to cause the result.” Id. 8 6.03(b). As this office does not find facts

in attorney general opinions, we cannot ascertain whether a person has the requisite intent or

knowledge in a particular situation. See, e. g., Tex. Att’y Gen. Op. Nos. JC-0480 (2002) at 5 (stating

that determining whether person commits act intentionally or knowingly generally exceeds attorney

general opinion’s scope); DM-500 (1998) at 5 (stating, as matter of law, that whether publisher

possesses requisite criminal intent in particular situation depends upon facts); Tex. Atty. Gen.

LO-94-087, at 2 (stating that, to determine whether requisite intent, knowledge, or purpose are

present, requires finding facts and cannot be performed in opinion process).

Given this conclusion, you ask whether “prosecution for violations under [clhapter 149 [is]

preempted or in any way limited by federal law.” Request Letter, supra note 1, at 1. We conclude

that the federal Meat Inspection Act, 21 U.S.C. ch. 12 (sections 601-695), does not preempt or limit

prosecution under chapter 149 of the Texas Agriculture Code. The Department has suggested to you

that sections 602, 6 10, 619, 644, 645, and 661, 21 U.S.C., which are within the federal Meat

Inspection Act, preempt or limit state enforcement. See id. at 2. In a letter to us, however, the

Department does not address preemption because the Department concludes that it lacks jurisdiction

to enforce chapter 149.3 We consider preemption under the federal Meat Inspection Act only. See

21 U.S.C. ch. 12 (2000).

Federal law may preempt state law expressly, see Hyundai Motor Co. v. Alvarado, 974

S.W.2d 1,4 (Tex. 1998); Tex. Att’y Gen. Op. No. JC-0093 (1999) at 3 (quoting Hyundai Motor Co.,

974 S. W.2d at 4), or implicitly if the federal statute’s scope “indicates that Congress intended federal

law to occupy the field exclusively or when state law actually conflicts with federal law.” Hyundai

Motor Co., 974 S.W.2d at 4; Tex. Att’y Gen. Op. No. JC-0093 (1999) at 3 (quoting Hyundai Motor

Co., 974 S.W.2d at 4); see Chicago-MidwestMeat As&n v. City ofEvanston, 589 F.2d 278,282 (7th

3Letter from Martin A. Hubert, Deputy Commissioner, Texas Department of Agriculture, to Honorable

John Comyn, Texas Attorney General, at 4 (Mar. 28,2002) (on file with Opinion Committee) [hereinafter Department

Briefl.

The Honorable Tony Goolsby - Page 5 (JC-0539)

Cir. 1978)’cert. denied, 442 U.S. 946 (1979). Under the Supremacy Clause, article VI of the United

States Constitution, the laws of the United States “shall be the supreme Law of the Land . . . any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST. art.

VI, cl. 2. State law that conflicts with federal law is preempted and “‘without effect.“’ Cipollone

v. Liggett Group, Inc., 505 U.S. 504,516 (1992) (citingM’Culloch v.Maryland, 17U.S. 316 (1819))

(quoting Maryland v. Louisiana, 45 1 U.S. 725, 746 (1981)). State law that is not expressly

preempted, but that actually conflicts with federal law to the extent that a private party cannot

comply with both state and federal law, is implicitly preempted. See Chicago-Midwest Meat Ass ‘n,

589 F.2d at 282; Hyundai Motor Co., 974 S.W.2d at 4 (citations omitted); Tex. Att’y Gen. Op. No.

JC-0093 (1999) at 3. State law that stands as an obstacle to accomplishing and executing Congress’

purposes and objectives is analogously implicitly preempted. See Chicago-Midwest Meat Ass ‘n,

589 F.2d at 282; HyundaiMotor Co., 974 S.W.2d at 4 (citations omitted); Tex. Att’y Gen. Op. No.

JC-0093 (1999) at 3. Federal law may not supersede a state’s “historic police powers . . . unless”

Congress clearly and manifestly intended it to do so. Hyundai Motor Co., 974 S. W.2d at 5 (citations

omitted).

To protect the public health and welfare, the federal Meat Inspection Act regulates

the inspection, labeling, and packaging of “meat and meat food products.” 21 U.S.C. 9 602

(2000); accord Chicago-Midwest Meat Ass’n, 589 F.2d at 282 (quoting 21 U.S.C. 5 661(a))

(“Congress . . . designed the [Meat Inspection] Act to ‘protect the consuming public from meat and

meat food products that are adulterated or misbranded.“‘). Each animal, including a horse, entering

a “slaughtering, packing, meat-canning, rendering, or similar establishment in which [it is] to be

slaughtered” for human consumption “and the meat and meat food products thereof. . . to be used

in commerce” must be inspected. 21 U.S.C. 8 603(a) (2000); see id. 8 641 (prohibiting subchapter

. I inspection at establishment for slaughter of horses if meat or meat food product is “not intended

for use as human food”). Inspected meat and meat food products must be labeled and packaged

according to federal requirements. See id. 5 607(a)-(c). Neither live animals (including horses) that

will die by means other than by slaughter nor animal carcasses may be received or transported in

commerce except in compliance with federal regulations assuring that the animals, “or the

unwholesome parts or products thereof, will be prevented from being used for human food

purposes.” Id. 8 644. The United States Secretary of Agriculture may develop and administer a

meat inspection program in conjunction with an appropriate state agency. See id. 9 661(a)( 1). A

state is barred from “developing regulations ‘in addition to, or different’ from federal regulations

applicable ‘to [plremises, facilities and operations of any establishment”’ that must be inspected

under the federal law. Chicago-Midwest Meat Ass’n, 589 F.2d at 283 (quoting 21 U.S.C. § 678).

We conclude, based on our review of federal law, that 2 1 U.S.C. chapter 12 does not preempt

sections 149.002 and 149.003 of the Agriculture Code. Federal statutes do not require a state to

permit the slaughter of horses within the state for human consumption in that state or elsewhere,

even though horse-meat may be included within that class of meat that is “capable of use as human

food” under federal law. See 21 U.S.C. 5 601(j), (k) (2000). The state laws prohibiting the

slaughtering of horses for human consumption are not additional to or different from federal statutes

relating to a slaughterhouse’s premises, facilities, or operation; rather, the state laws relate to the

The Honorable Tony Goolsby - Page 6 (JC-0539)

production, sale, and transfer of horse-meat. Also, the federal inspection and labeling requirements

do not implicitly preempt the Texas prohibition. The federal statute’s scope does not clearly indicate

that Congress intended to occupy the field with respect to determining the kinds of animals that may

be slaughtered for human consumption. Instead, in those states that permit horse-meat to be

produced or sold as food for human consumption, the meat must comply with 2 1 U.S.C. chapter 12.

In this way, a regulated party may comply with both federal and state statutes with respect to horse

slaughter. See Chicago Midwest Meat Ass ‘n, 589 F.2d at 282 (stating that state law conflicts with

federal law when private party cannot comply with both).

Finally, you ask whether the Department may “enforce violations of chapter 149 of the Texas

Agriculture Code.” Request Letter, supra note 1, at 1. If it does not, you continue, “which state

agency has that power?” Id. We conclude that the Department has no power to enforce violations

of chapter 149 of the Agriculture Code. Rather, a local prosecutor may investigate as well as

prosecute alleged violations, and the Commissioner of Health may inspect slaughterhouses that are

alleged to be killing horses for human consumption. Because chapter 149 itself does not designate

an enforcer, however, we find our answer outside chapter 149.

We have received several briefs suggesting that section 12.001, which requires the Depart-

ment to “execute all applicable laws relating to agriculture,” requires the Department to enforce the

violations.4 The Department disagrees, stating that the term “applicable” in section 12.001 does not

include every law that may be related to agriculture: “the term ‘applicable’ would be superfluous

if the legislature meant that the department is to execute every law relating to agriculture.” See

Department Brief, supra note 3, at 3.

Although section 12.001 authorizes the Department to “execute” various laws, it does not

provide the Department with any authority, express or implicit, to prosecute a criminal action or to

investigate an alleged violation. A state agency has only those powers that are explicitly or

implicitly delegated to it. See R.R. Comm ‘n v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992);

6th & Neches, L.L.C. v. Aldridge, 992 S.W.2d 684,687 (Tex. App.-Austin 1999, pet. denied); Tex.

Att’y Gen. Op. Nos. JC-0418 (2001) at 6, JC-0416 (2001) at 5, JC-0324 (2001) at 1. To “execute”

means to “perform or complete.” BLACK’S LAW DICTIONARY589 (7th ed. 1999). The Department’s

4See Letter from Kevin L. O’Neal, Porter & Hedges, L.L.P., representing Habitat for Horses, Inc. to Honorable

John Cornyn, Texas Attorney General, at 6 (Mar. 26, 2002) ( on file with Opinion Committee); Letter from

Donald D. Feare, Attorney & Counselor at Law, representing Lone Star Equine Rescue, at 6-7 (Apr. 11,2002) (on file

with Opinion Committee) (arguing that Department of Agriculture is only agency with sufficient access and knowledge

to enforce horse-meat provisions); Letter from Robert L. Trimble, Attorney & Counselor, representing Texas Humane

Legislation Network, Texas Buckskin Horse Ass’n, and Common Ground Found., to Honorable John Comyn, Texas

Attorney General, at 8 (Mar. 26,2002) (on tile with Opinion Committee) (stating that because section 12.001 requires

Department of Agriculture to “execute . . . applicable laws relating to agriculture,” Department has implied powers to

do so); Letter from Dawn Elise Reveley, Attorney & Counselor, representing Favoring Winds Ranch, Silver Phoenix

Horses, Spirits of the Wind Equine Facility & Rescue, Texas Spirits of the Wind Equestrian Drill Team, Texas Wildfire

Express Drill Team, and Tres Oak Ranch, to Honorable John Comyn, Texas Attorney General, at 5 (Mar. 26,2002) (on

file with Opinion Committee) (stating that section 12.00 1 applies because chapter 149 relates to agriculture as commonly

defined).

The Honorable Tony Goolsby - Page 7 (JC-0539)

authority to execute laws relating to agriculture is not tantamount to authority to prosecute criminal

violations of that law. More importantly, the Texas Constitution places the authority to prosecute

with county, district, and criminal district attorneys. See TEX. CONST. art. V, tj 21; infra at 8.

Moreover, chapter 149 traditionally relates not to agriculture, but to public health. While the

term “agriculture” can be defined to encompass the raising of livestock, see TEX. AGRIC. CODE ANN.

$2.001(Vemon Supp. 2002) (defining “agriculture” to include “raising or keeping of livestock or

poultry”); I OXFORDENGLISHDICTIONARY267 (2d ed. 1989) (defining “agriculture” as “[tlhe science

and art of cultivating the soil; including the allied pursuits of gathering in the crops and rearing live

stock; tillage, husbandry, farming (in the widest sense),“5 the Department never has had authority

to enforce the substance of chapter 149. The substance of section 12.001, authorizing the

Department to execute applicable laws relating to agriculture, was adopted in 1907, and it originally

did not encompass laws relating to slaughterhouses. See Act of Apr. 4, 1907, 30th Leg., R.S., ch.

59, 8 11, 1907 Tex. Gen. Laws 127, 128. Most of the Commissioner’s twelve duties pertained to

the subject of products other than meat, such as grain, cotton, fruit, and wool. See id. at 128-30. The

Commissioner’s express duties vis-a-vis livestock consisted of “enquir[ing] into the subjects

connected with stockraising, dairying and poultry; the obtaining and rearing of such domestic

animals and fowls as are of most value; and the breeding and improvement of the same” and

“encourag[ing] the raising of fish and the culture of bees.” Id. at 129; cJ: TEX. AGRIC. CODE ANN. Ej

12.009(a) (Vernon 1995) (setting forth Department’s duty to “inquire into subjects relating to stock

raising”).

When the statutory predecessor to chapter 149 was originally adopted in 1949, the legislature

placed jurisdiction to investigate within the Board of Health’s powers as a matter related to the

public health. See Act of Mar. 8, 1949, 5 1st Leg., R.S., ch. 45, 8 9, 1949 Tex. Gen. Laws 78, 79.

The new law, codified as article 719e of Vernon’s Texas Penal Code (now repealed), was placed in

the midst of title 12, chapter 2, pertaining to public health. See Ned v. State, 229 S.W.2d 361,362

(Tex. Crim. App. 1950) (noting adoption of 1949 legislation and its effect on prior law). While the

1949 statute does not expressly authorize a particular entity to enforce it, a 1950 news article quotes

the “state health officer,” Dr. George W. Cox, as stating that the Department of Health was

prosecuting “every violator we could find.” Health Off leer Tells How to Stop Homer-IMeat Sales,

‘For other statutory definitions, see TEX. LAB. CODEANN. $5 1.003(b) (Vernon 1996) (defining “employment

in agriculture” with respect to prohibition of certain child labor as “engaged in producing crops or livestock” and

including “cultivating and tilling the soil”; “producing, cultivating, growing, and harvesting an agricultural or

horticultural commodity”; “dairying”; and “raising livestock, bees, fur-bearing animals, or poultry”); id. 9 62.002

(defming “agriculture” for purposes of minimum wage laws to include, among other things, “raising livestock” and “any

practice performed by a farmer or on a farm as an incident to or in conjunction with farming operations”); TEX. TAX

CODEANN.$23.42(d)( 1) (V emon 2001) (defming “agriculture” for purposes of determining whether land qualifies for

agricultural-use tax benefit as “the use of land to produce plant or animal products . . . under natural conditions,” but not

including “the processing of plant or animal products after harvesting”); TEX.WATERCODEANN. § 11.002( 12) (Vernon

Supp. 2002) (defming “agriculture” for water-rights purposes to mean, among other things, “raising, feeding, or keeping

animals for breeding purposes” or to produce food and “raising or keeping equine animals”); id. 5 36.001(19)(C), (F)

(same for purposes of groundwater conservation districts).

The Honorable Tony Goolsby - Page 8 (JC-0539)

DALLAS MORNINGNEWS, Mar. 17, 1950. A 1952 news article also quotes the same Dr. Cox, “state

health officer,” as saying that sausage containing horse-meat “can’t be sold in Texas”: “We have

labeling laws in this state that are going to be enforced by the State Health Department.” Neigh?

Nay! Texans Can ‘t Horse Around with Sausage, DALLAS MORNING NEWS, May 23, 1952. The

substance of article 7 19e was transferred in 1973 to the Revised Civil Statutes and again placed with

statutes related to public health. See Act of May 24, 1973,63d Leg., R.S., ch. 399, 1973 Tex. Gen.

Laws 883,996~ (former article 4476-3a of the Revised Civil Statutes). The statute was codified as

chapter 149 of the Agriculture Code in 1991, but its codification was intended to be nonsubstantive.

See Act ofMar. 25, 1991,72d Leg., R.S., ch. 16, $4 1.01(l), 2.01, 1991 Tex. Gen. Laws 244,244-

46.

Having determined that the Department has no authority to investigate or prosecute alleged

violations of chapter 149 of the Agriculture Code, we conclude next that a county or district

prosecutor may investigate and prosecute alleged criminal violations of chapter 149. Because

section 149.005 of the Agriculture Code establishes a penalty for a violation of chapter 149 of a

maximum fine of $1000, a jail term of thirty days to two years, or both, the crime is a Class B

misdemeanor. See TEX. PEN. CODE ANN. 8 12.41(2) (Vernon 1994). Original jurisdiction of such an

offense lies in a county court or, concurrently, a criminal district court. See TEX. CODE CRIM. PROC.

ANN. arts. 4.01,4.05,4.07 (Vernon Supp. 2002); TEX. GOV’T CODEANN. $5 24.901,24.9 10,24.920,

26.045 (Vernon 1988 & Supp. 2002). A county, district, or criminal district attorney represents the

state in criminal actions in the lower courts, depending upon the particular attorney’s statutory

authority. See TEX. CONST. art. V, 0 21; TEX. GOV’T CODE ANN. chs. 43-45 (Vernon 1988 & Supp.

2002); Saldano v. State, 70 S.W.3d 873,876 (Tex. Crim. App. 2002) (en bane) (stating that duty of

criminal prosecution in trial courts of records belongs to county attorney, district attorney, or

criminal district attorney); Aguirre v. State. 22 S.W.3d 463,469 (Tex. Crim. App. 1999) (en bane)

(stating that county attorney has right and duty to prosecute in county court). For example, the

Tax-rant County Criminal District Attorney represents the state in all criminal matters before

the county’s criminal district courts and the Tar-rant County Court. See TEX. GOV’T CODE ANN.

tj 44.320(a) (V emon 1988). A county or criminal district attorney may request the attorney general’s

assistance in a prosecution. See id. 8 402.028 (Vernon 1998).

Local prosecutors have access to numerous, on-going records related to the slaughter of

horses within a county that may provide evidence of a violation of chapter 149. Under chapter 148

of the Agriculture Code, a slaughterer must register his or her name and intent to engage in business

as a slaughterer with the county clerk. See TEX. AGRIC. CODE ANN. 8 148.002(a) (Vernon 1982). A

slaughterer must keep a record, in a bound volume, of all livestock “purchased or slaughtered,”

describing the livestock “by kind, color, sex, probable age, [and] any marks or brands”;6 identifying

the name and address of the person from whom the slaughterer purchased or acquired the livestock;

‘jMarks and brands are registered with the county clerk of the county in which the animal is located. See TEX.

AGFUC.CODEANN.$6 144.001(b), .041(b) (Vernon Supp. 2002) (p ermitting horse owner to use identifying marks and

requiring horse owner to register identifying mark with county clerk); TEX.LOC.GOV’TCODEANN. $5 118.011 (a)(9),

.020 (Vernon 1999 & Supp. 2002) (requiring county clerk to charge $5 fee for registering brand).

The Honorable Tony Goolsby - Page 9 (JC-0539)

in certain circumstances, to identify the individual who delivered the livestock, along with “the

make, model, and license plate number of the vehicle in which the livestock was delivered”; and

indicate the date the livestock was delivered to the slaughterer. Id. 8 148.011 (Vernon Supp. 2002).

A slaughterer must report “[a]t each regular meeting of the county commissioners court” “the

number of animals slaughtered” since the last meeting; each animal’s “color, age, sex,” and

identifying marks and brands; “a bill of sale or written conveyance for each animal purchased

for slaughter”; and “a notation of any slaughtered animals” that the slaughterer raised. Id. fj 148.0 12.

A horse slaughterer in particular must file a similar monthly report with the county clerk. See id.

8 148.012(c); see also id. 8 148.012(d) (re q uiring slaughterer to file monthly report on first day of

each month with county clerk where horses were slaughtered).

Because the Texas Commissioner of Health has limited authority to inspect slaughterhouses,

he or she may be able to assist a local prosecutor. Chapter 433 of the Health and Safety Code

authorizes the Commissioner of Health to inspect slaughterhouses producing meat, “solely for

intrastate commerce,” for human consumption. See TEX. HEALTH & SAFETY CODE ANN. ch. 433

(Vernon 2001& Supp. 2002); see also 25 TEX. ADMIN. CODE 8 221.13 (2001) (Tex. Dep’t of Health,

Meat Safety Assurance) (prescribing administrative penalties for violations of Health and Safety

Code chapter 433). While the Commissioner may not inspect “an establishment for the slaughter

of livestock or the preparation of carcasses, parts of carcasses, or products of livestock if the articles

are not intended for use as human food,” TEX. HEALTH& SAFETYCODEANN. 5 433.029( 1) (Vernon

2001), the question you pose presumes that the horses are intended for human consumption, although

the meat is for interstate, not intrastate, commerce. Request Letter, supra note 1, at 1. We further

understand that the Texas Department of Health may inspect meat bound for interstate commerce

in federal plants on behalf of the United States Department of Agriculture. See TEX. DEP’T OF

HEALTH, MEAT SAFETY’ ASSURANCEDIV., POLICY&PROCEDUREGUIDE92-93 (Oct. 2001) available

at http://www.tdh.state.tx.us/bfds/msa/pdf/pguide.pdf (last visited July 17,2002); see also 2 1 U.S.C.

8 661 (a)( 1) (2000) (authorizing United States Secretary of Agriculture to cooperate with “the

appropriate State agency” to develop and administer state meat inspection program). The

Commissioner of Health does not appear to have any authority to prosecute a criminal action for a

violation of chapter 149 of the Agriculture Code, however.

The Honorable Tony Goolsby - Page 10 (JC-0539)

SUMMARY

Chapter 149 of the Agriculture Code applies to slaughter-

houses in Texas that process, possess, sell, or transport horse-meat to

foreign countries as food for human consumption if the slaughterer

has the requisite intent. The federal Meat Inspection Act, 21 U.S.C.

ch. 12, does not appear to preempt prosecution for violations of

chapter 149.

The Texas Department of Agriculture lacks authority to

investigate and prosecute alleged violations of chapter 149. A county

or criminal district attorney may investigate and prosecute alleged

violations of chapter 149.

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

NANCY FULLER

Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee