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January 23, 2007

Texas Horse Slaughter Plants Ruled Ilegal 5th Circuit Court of
Appeals!

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Texas Horse Slaughter Plants Ruled Ilegal 5th Circuit Court of
Appeals!

"The lone cowboy riding his horse on a Texas trail is a cinematic
icon," wrote Judge Fortunato Benavides in the ruling. "Not once in
memory did the cowboy eat his horse."

With that the 5th U.S. Circuit Court of Appeals in New Orleans ruled
January 19, 2007 that horse slaughter is illegal in the state of
Texas. It overturned a lower court decision that invalidated a 1949
Texas law banning the sale of horsemeat for human consumption.

Read Texas Law:

http://www.equineprotectionnetwork.com/legislation/txlaw.htm

The court found that the law stood on its own merits and was still
enforceable. This negated a federal district court ruling in 2006
that said the law was invalid because it had already been repealed by
another statute and pre-empted by federal law.

If the law is enforced, the two Texas slaughterhouses, Dallas Crown
in Kaufman and Beltex in Fort Worth. The third slaughter plant is
Cavel International located in DeKalb, Ill.

The fight to Save America's Horses is not over yet! We still need to
pass the American Horse Slaughter Prevention Act, reintroduced on
January 17, 2007 by the U.S. House of Representatives and Senate
simultaneously. The Act would prohibit horse slaughter for human
consumption.

Contact your U.S. Senators (2) and your U.S. Congressman and ask them
to co-sponsor and support the American Horse Slaughter Prevention Act!

In 2006, the bill passed the House by a vote of 263-146, but was not
acted upon by the Senate before it adjourned for the year.

The entire court opinon can be read here:

http://www.ca5.uscourts.gov:8081/isysquery/irlac51/1/doc#bmk2


Court Opinion:

January 19, 2007


Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS



FOR THE FIFTH CIRCUIT


No. 05-11499

EMPACADORA DE CARNES DE FRESNILLO, S.A. DE C.V.;

BELTEX CORPORATION; DALLAS CROWN, INC.,


Plaintiffs-Appellees,

v.


TIM CURRY, District Attorney Tarrant County

Texas, Et Al.,


Defendants,

TIM CURRY, District Attorney Tarrant County Texas,

Defendant-Appellant.


Appeal from the United States District Court for the

Northern District of Texas, Fort Worth


Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

BENAVIDES, Circuit Judge:


The lone cowboy riding his horse on a Texas trail is a cinematic
icon. Not once in memory did the cowboy eat his horse, 1 but film is
an imperfect mirror for reality.

Texas is home to two of the three slaughterhouses in the United
States that process horsemeat for human consumption, with the third
operating in Illinois. After several decades of operations, the Texas
Attorney General informed them that Texas is one of a handful of
states that prohibits their activities. Whether he informed them
correctly is the subject of this case.

We VACATE the district court's permanent injunction barring the
prosecution of slaughterhouses for processing, selling and
transporting horsemeat for human consumption. We hold that Texas
Agriculture Code Chapter 149 has not been repealed or preempted by
federal law. Tex. Agric. Code Ann. §§ 149.001-.007 (Vernon 2004)
("Chapter 149"). We also find that, as applicable to the parties'
activities before us, Chapter 149 does not violate the dormant
Commerce Clause.

I. FACTS AND STANDARD OF REVIEW

The Appellees are three slaughterhouses ("the slaughterhouses") that
process and sell horsemeat. While the horse byproducts go to various
uses—including animal feed, fertilizer and baseball leathers—a
substantial majority of the horsemeat is sold and shipped abroad for
human consumption. None of the meat is sold domestically for human
consumption.

Both Beltex and Dallas Crown operate slaughterhouses in Texas.
Beltex owns a controlling interest in the third Appellee
slaughterhouse, Empacadora de Carnes de Fresnillo ("Empacadora").
Empacadora operates in Mexico, but sells and transfers its meat to
Beltex in Texas, which then sells it abroad. While Empacadora
currently operates in Mexico, it has speculated that it will one day
come into Texas to handle distribution, sales, and export matters
instead of dealing its product through Beltex. The companies have
been marketing horsemeat for human consumption as far back as the mid-
1970s, but recently the legality of the practice was called into
question.

In 2002, Texas State Representative Tony Goolsby requested that the
Texas Attorney General clarify the enforceability of Chapter 149,
which on its face prohibits the processing, sale or transfer of
horsemeat for human consumption. The Attorney General issued an
opinion stating that Chapter 149 was applicable to the
slaughterhouses in Texas and was not preempted by federal law.

When the slaughterhouses learned of the opinion, and that Beltex and
Dallas Crown were facing imminent prosecution, they brought this
case. They sought a declaration of legal rights and responsibilities
and to enjoin any potential prosecution against them under Chapter
149. They argue that Chapter 149 has been repealed, is preempted by
federal law, and violates the dormant Commerce Clause.

The facts of the case are all stipulated, and both parties filed
motions for summary judgment. The district court ruled in favor of
the slaughterhouses and permanently enjoined Tarrant County District
Attorney Tim Curry ("Curry") from prosecuting the companies under
Chapter 149. The court held that Chapter 149 (1) was repealed, (2)
was preempted by the Federal Meat Inspection Act, and (3) violated
the dormant Commerce Clause. We disagree as to each point.

While we review a district court's grant or denial of a permanent
injunction for an abuse of discretion, Peaches Entm't Corp. v. Entm't
Repertoire Assoc. , 62 F.3d 690, 693 (5th Cir. 1995), we review all
three issues of law supporting the district court's injunction de
novo . Twin City Fire Ins. Co. v. City of Madison , 309 F.3d 901, 904
(5th Cir. 2002).

II. DISCUSSION

Before we can consider potential constitutional infirmities in
Chapter 149, we must determine whether it is in force. If it has been
repealed then we need not address the constitutional concerns the
statute raises. See Elkins v. Moreno , 435 U.S. 647, 661-62 (1978).
While it is generally preferable to avoid such constitutional issues,
courts "cannot press statutory construction `to the point of
disingenuous evasion' even to avoid a constitutional question."
United States v. Locke , 471 U.S. 84, 96 (1985), quoting Moore Ice
Cream Co. v. Rose , 289 U.S. 373, 379 (1933).

A. REPEAL

It is unchallenged that Chapter 149 prohibits the activities of the
slaughterhouses if it is in force. The statute reads:

A person commits an offense if:

(1) the person sells, offers for sale, or exhibits for sale
horsemeat as food for human consumption; or

(2) the person possesses horsemeat with the intent to sell the
horsemeat as food for human consumption .

Tex. Agric. Code Ann. § 149.002. It is also an offense to transfer
horsemeat to a person one knows or should know intends to do those
prohibited activities. Id. at § 149.003. This statute was first
enacted in 1949, 1949 Tex. Gen. Laws 78. While this statute was
recently codified as Chapter 149 in 1991, the slaughterhouses contend
that it was repealed by a provision last codified two years earlier
in 1989.

We first find that the Texas Meat and Poultry Inspection Act
("TMPIA") has not implicitly repealed Chapter 149 by way of an
irreconcilable conflict. See Tex. Health & Safety Code Ann. § 433.033
("Section 433.033"). Alternatively, even if the statutes are
irreconcilable, Chapter 149, as the one more recently codified, is
controlling.

1. Chapter 149 and Section 433 are not Irreconcilable

Section 433.033, titled "Equine Products," states:

A person may not sell, transport, offer for sale or transportation,
or receive for transportation, in intrastate commerce, a carcass,
part of a carcass, meat, or meat food product of a horse, mule or
other equine unless the article is plainly and conspicuously marked
or labeled or otherwise identified, as required by rule of the
commissioner, to show the kind of animal from which the article was
derived.



Id. (emphases added). The slaughterhouses argue that this
implicitly permits the sale of horsemeat for human consumption under
certain conditions, and thereby repeals Chapter 149.

Implicit repeals are not favored, but if two acts are in
irreconcilable conflict the latter controls. Jackson v. Stinnett ,
102 F.3d 132, 136 (5th Cir. 1996). Statutes are in irreconcilable
conflict only if there is a "positive repugnancy" between the
statutes, such that one is eviscerated by the other. See Tenn. Valley
Auth. v. Hill , 437 U.S. 153, 189-90 (1978).

The district court agreed with the slaughterhouses that Section
433.033 recognizes the legality of selling horsemeat for human
consumption under certain conditions, and thereby repealed Chapter
149's prohibition of the activity. It made a special note that
Section 433.033 applies to "meat food products," which it stressed
are defined in the Act as "capable of use as human food." Tex. Health
& Safety Code Ann. § 433.003(13). The district court read this to
mean that, because horsemeat is "capable for use as human food," it
is implicitly legalized for such a purpose. See Order Granting
Plaintiffs Motion for Summary Judgment at 6 n.5 (Aug. 25, 2005)
("Summary Judgment Order").

The district court misreads Section 433.033. The TMPIA is concerned
with meat inspection, labeling, packaging, slaughter, transportation,
and various other standards of producing meat. It never purports to
legalize for human consumption the meat products covered therein. For
instance, the Act places numerous regulations on "livestock," which
covers a variety of meats ranging from domestic rabbits to exotic
animals. Tex. Health & Safety Code Ann. § 433.003. Under the
slaughterhouses' approach to reading the Act, this would implicitly
legalize the sale of all exotic animals and domestic rabbits for
human consumption, overriding any statute to the contrary.

The better reading is that the TMPIA is indifferent as to which
meats are legal for public sale, but provides general regulations
that may be applied to those that are. Just as it did not legalize
the sale of all exotic animals for human consumption, it does not
legalize the sale of horsemeat by repealing Chapter 149's
unanmbiguous language to the contrary. It does not reach the high
standard of irreconcilability required for an implicit repeal.

Furthermore, that a horse "meat food product" is "capable of use as
human food" does not mean the product can be legally sold for human
consumption. The Act explicitly defines "capable of use as human
food" as "not naturally inedible by humans." Id. at § 433.003(2). It
does not imply that all edible meats are legal for sale as human
food, as evidenced by other provisions in the Act that specifically
deal with "meat food products" that are "not intended for use as
human food." See, e.g. , id. at § 433.029(b). 2 Human brains are "not
naturally inedible by humans," but that does not mean the TMPIA
authorizes roadside vendors to start selling them.

Nobody suggests that horsemeat is naturally inedible by humans, just
that Chapter 149 makes it illegal to sell for human consumption.
Section 433.033 is reconcilable with Chapter 149 by reading it as
applying only to horsemeat used for other legal purposes, such as
animal feed.

Chapter 149 prohibits the sale of horsemeat for human consumption.
That does not conflict with the regulatory purposes of Section
433.033 or its recognition that horsemeat is "not naturally inedible
by humans."


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