Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GRO”ERSELLER*
ATTORNEY GENERAL
Honorable Claude A. Williams
Chairman end Executive Director
Texas Unemployment Compensation
Austin, Texas~
Dear Sir: Re: Opinion No.
Were service ed on turpen- tine farm e employment compensatio d r atea ?L questions.
We have your letter .L.
as r0u0w8:
lations and
the Cammiss
labor' lnolaaes all on a farm of thesc~l, in oonneo- the har- e raising, :f,eeding oti.
estoak, bees, and poultry; or etloy$th the iala;.' ioh were also the paoklng, paokaging, farm, transp~orting, or.marketlng of those materials
or artlole.8. Such servioes do not oonstituta
tagrloultural labor', however, unless they are -:.
Honorable Claude A. Wllllams, Page 2
performed by an employee of t&a 6wner OP tenant of the farm on whloh the materials ln their raw or natural state were produoed, and unless snoh prooessing, paoklng, paokaglng, transporting, or marketing-is carried on as an inoident to ordiaarg farming operations as distinguished tram manufao- turing or commercial operations.
‘As used herein the term ‘farm’ smbraoea the farm In the oralnarlly aooepted sense, and inoludes stock, dairy, poultry,. fruit and truck farms, plant- ations, The term renahe ,ranges, end oroharas.
‘farm* does not embraoe lumbering and roredtrp In- dustry ror the purpose of thie Act.”
*On Ju4 2~. 19 above r6gulatian ii an .,. lathn 25;, Regulation C&
‘The term *agrloultural labor’ includes all services pertormed . _’
(1) By an ~employee, on a E~ZIIL, in ‘~ooIqe0tl.o~ or the so&l& the harree@ nith l&e. oultlvatlon $eeaihg;:tar managemn “& of orops, or.th$ raieing, or llyeetqok, bees i and poultqt @r .,
(2) By an 5mploy5e in ootieotion ritli the prooeesIng of ag%lolen from mat5rial.n which rclre,~ prodaoed ti h 3arm, al50 the paoking, or marketing of thee5 m erlals or, r”--
trana ortlng, art10 as. P Sri&: servl~elr~do not oonatitute *agrLii oulteal formed by, an 5mplo~55 of the owner OT tenant of $abor’,.however, anlear theyz~5 p5.r~ in thdr raw or the farmxui whlah ,thexia~allhl.s natural~etate were podtied; and ~151~s suoh pro- oeselng, pasklng, paokaging, trans orting, q,~ marketing Is carried QII as e.n in01 ent to Or86narY x iarmIng opesatlons as dlstlngulshed rrom nanufao- turlng or oommerolal operations*
“As used herein the term ‘farm’ embraass the farm In the ordinarily, aooepted sense, and Innlades stook, dairy, ponltrp, rrult and truck farms,
., Honorable Clahde A. Williams, page
lantatlons, ranohes, ranges, and orohards. !&I e term *farm* dors net embraoa Jqmberlng and for the purpose of this Aot.t rorestrp industry Regulation 25
'Agricultural Packing and Marketing Assoola- tlons Sec. 19 (g1 (6) (D)
,The iaot t&t an lndlvldual is engaged ln handling farm proauots does not or ltselr make the services performed for him fagrloulturalt. Ser- does are often perrormea by employees in oon- nectlon with the paoklng, processing, packaging, transporting or marketing for sale to oonsumers or farm products whloh are~not a part of oralnary farmlag operations but a:part o$: aomierolal~.tm. operations. ~*ma&~s~h~-ser~le*r ~'
manitfaottiring Hi,:b$ ‘: are pertorpsd bye inbltld~ls~.~o'~ara:~~~~lo sn ae~oolation~cir ~prodaoclra,~-ef~,thB~~.:t 3; a"' produots in ~oonneotlonwith.whloh the seroloee
are perrormed were produoed by the members ,of suoh aeaooiatlon, the aerrloea of sooh employees are not exempt as agrioultural labor, since the indlrlduale are employers ,of the assoolatlon and not of a-partloular, produo5ti.t . .
*Gn Ihatlarr 1, 194Dphc4 Gommlt~elon rwoiuded Reg&tlon Z?& aad Regalatlok 25, abqljte. Thor6 ha8 been no~Gommlsaion Regulation 011 thle subjsot~ nlnoo the last mentioned-date.
l Dpa.the anaotment oi the Unamploflasnt Gompen- satlon Aot this Commlsslon began oolleotlng,taxes iron the &gate Haml Storea, Ino. Its oontinued to oolloot unemploymssat taxes rrom the named-employer until Sanuary 1; ~1940, when 10 relieved the employer of liability begiunlng January 1, 1940, in aooord- anoe with Its deoislon dated Maroh 19, 1940, tihloh in part: read8
*It la therein stated that *The Wieergata Naval Stores, Inoorporated, .operated what le~oanmonlp a turpentine farm near Wlergate, ln Newton called County Texas. The operation of a turpentine oamp consists or the making, ~gathering and stilling ‘Or crude gum into gum splrlts Andy resin. This opera- tion is accomplished by chipping a live pine tree
_’ ,~.’ Eonornble Claude Ai UIlllams,, Page &
and p q l olng th erion a oup. into whl.oh arude g u m Is oollsoted. ‘, Xh%s 5mtl5 ~gti 1s psrlodlo5lly gathered and transported to the anmp st$ll
where same la pzooessed into the gum spirits 01 turpentine and resin. The orude gum is ordinarily harvested or oollected during eight or nlne,montha of each calendar year. The persons performing the serrloe abovementioned are unskilled laborers who work urider the supervision oi a. foreman.”
Wpon the basis of the lnformatlon presented, it is the opInlon or this Commlsslon bnd it hereby that services perrormed for you, of the kind rules specified above are servloes which oome within the exoeptlon afrorded agrioultural 1,abor
l l. Under the T5xas Vn5m loyDient Ofimpensatlon Act and the Beg&t&O85 .-lea ed,‘~ w5$5 end a~ the perio2meQ for the &inplQytir ag210tit~lr~5 serrioee labor and st5mpt?
*2., If, suoh servioes bid oonati$utta agrloal- my a *sfti.na ture labor prior to January 1, 1940, of contributions pa14 be mad5 as to? .,(a] t+xes au0 .prSor to due after ADrIl 1. 19397, (b) taxes April 1, 191397 - --- In the event that a refund wexe due tier- "3. for taxes pald
gate Naval Stores, Inoorporatcd,
.
.
Honorable G1auds.A. WIlllams, Page 5
thi8. Commission whloh mire due prior to April 1, 1938, exoept ior’ the taot that Section 8 of the Unemployment Compenaatlon Aot , Ar tl 01s 5221b-6, Vernon’s Revised Civil Statutes. zrerented suoh r~efund, would an act of the legisiature .makIng appropriation or the amount or euoh refund and authorizing payment to the employer be valid?
*4. 1l Question No, 3 is answered ‘yes’ how would such payment be aooompllshed and out or what fund would it be paid?”
Article 5221b, Revised Civil Statutes of Texas, provides that servfoes performed for wages under oer.taln oiromastqoee constitute employment. under the Texas Dnem- ployment Gcapensatlon Ant .,. to the GosmiIleIoxi thst.;thep ~.: ; .: tloha iiom ~fhd A&.~ Among ~~ ,~~; 5221b Ie IJeotl~on 17 (g,)~:(5)
In view of this exemption the Commlsslon aotlng under the authority of Article 5221b, Seotlon 9, enacted the quoted regulations. The regulation dIaolosae tie Ga&esloa In- that
tdndsd to llmlt the~tapa:.ragrloultorar.labQr” to that .&?&ox pertormed on a farti,‘fia defined br~,ther; Xa all~,Inrrtanore it is held that the term *farmu Is to be uudrretood. Ix Its or- dinarr and. fo pular 8anae and that iz$‘~a traot o$ laud tissd tar ra aleg oroplr~ an& reari 804 ,Gkwdon- Y.
Buster, 257 8: W. 2201 ll3 %!a, ,3 3 Wo;de & Phrasds, 2) page 248.
The 8tat;es:::: of Golorado and Gounsotlout have adopted regulations wlth ~substantlally the sams wording as them rsgu- latlons of the Texas Unemployment Compensation %amleslon regaralng agrioultural X.:abor* %:a suit for the oolleatlo~ of taxes assessed against q oonoern operating mushroom sheds, styled Great Western EushroomGompany V. hIustr$al Gommlaslon, 82 Pao~; (26) 751, theSupreme~ .Gourt of Colorado said: think ,the promulgated regulation
“We~oannot is other than~ln keeping wlth ~the clear intent ai the enactment .v
__-.
Konorable Claude A, WUllama, Page
The oourt further disowaad the tact that the opera-. tions in question ware oarrled out throughout moqt 0r ths peer, : a&the parposs In the axamptlon of agrloultural labor was that it was seasonal work thus It should not be contended that the Legislature intended to exempt this type of anployment.
The court held that this was not agrloultural labor as defined by the Commission.
In the oase of Park Floral Company V. Industrial Commission, 91 Pao. 492, In the Supreme Court of Colorado, the demand was made upon a floral oompany for payment of taxes.
The company contended that this operation was within the exsmp- tion of agrloultural of the Commission ruling constituted labor and further that the promulgation
an arbitrary attempt by the Commission to restrlot and limit the ordinary meaning of the term *ag.rloultural labox”. The eorurt .thsrs said that this zonounocupent @f that ::..~ objeotlon.~Is by the reoent roreoloerd ,. cow-t l.q the oam of: (Priat We&em Mm, %I ,q,oq Qom ang,:*i ~Q.U~ ~. ~, g. ..~. thl~~,ins trial Ccmmlasl~,‘~su~ra~ ~~l%e ooart in anob:altWhdld to enaot r’uies and regu; that the’ dalegatlon’of the autherlty latlons was not an Invalid delegation of legislative authority. et al V. Tone, In the dase or Ii Duys 6c Co
5 Atl. &%%O~t held that (26) ,23, the Supmu& Court o? the regulation of the ConmIssion of Connedflout to~be valid, and that it did not riolats ths aqua2 protestion or due pro- oem olausas or the Ganstltutlon. 'Bte .ooart ti thXs opinlmi redswed the definition or *iarm laborer* and *agr$oulture*.
Aoting wider the s=e rule msklng p~wsr as lt 'pro- vided ,in the Colorado Unemployment .Watate, the Tsxai Comais- slon enaoted the mme regulation as that of Colorado,
Your regulations or Deosmber 5, 1936, and July 2, 1937, stated they lntsndsd the teSln wfarma to ambraoe, ihat end undpr this dethltlti the turpsntlhe industry would not The power or the Texas Commlsslan be *agrIoultural labor*. awtained
to ennaot their regulations-Is by the Ii. Duys k Corn- pany .snd Park Floral aaees, supra. However, the aotlcm of the CommIsalon an Maroh 19, 19J,O, In reaoinding its rsgulatlon, refleots a ohangs In their attitude. They must hare Intended that the term should have the broadest meaning in liner with the modern trend.
You have furnished a photostatlo oopy of the find- ings oi raot and oonoluslons of law of the Distriot’ Court of the United Statas for the Middle Distriot of Georgia in the oase’of Gso. I. Shelton, et al, plaintiffs, VS. Marion H. Allen.
Honorable Claude A. Wllllame, Page 7
The applloant oites the ruling or the oourt as a basis for the olaimed exemptioni But, let it be reoogulzed that the Statutes of Texaa.oontain no auoh exemption as that of Title 12, Section IlAlj, U. S. C. A. Further, this oaae was disposed of on prooedural grounds without passing on the merl ts.
In the oasa of United States Y. Turner Turpentine Company in 111 Fedi (26) IJM, an opinion of the Clroult Court of Appeals for the Fifth Clroult, holds that the producers of crude gum are engaged in agrioultural labor. We call your at- tention to ths raot that this deolslon is influenced, if not based upon the fact that Ceorgla in 1939 had enaoted a stat- ute providing that all orlglnsl produoars of crude gum and their employsas ware depaarad to be farmsrs’lnso $ar as any statutes or the Stats, ralata& ever been on $ha~~statuttc ~QQ : Ho euoh*~:s’tattita ox%&, or he
of Tsxal;‘.,i T@at~ aorfff .~s.f’ur.~~~~, ,~ ther lnfluenaad bl the Wdera Statuta,‘.on tki’ib stibfhti~ T
The dtstlnotion between farming and that of out&g and logging timber was reo,ognlzed by the Supreme Court of Tennessee In the oaee of Robinson V. Stacklay, 61 S. W. (Za) 677.
In the aasi Pratt ,v. .Clty oi,Maaan, 1% a.,&. .19lj > the Uourt of Ap,psals~ of Claorgia wasp ,oonstruing a mtinla2pal. .~ ordinsnae ‘,ot thr cltr or Yaeon, tilsh-r.aqulred
that mar&ants : or ‘others outside. the blty limits delir6rlng ~gooda la the City to take out a dray lloonsd fur eaoh w&g& used in the delivery. ln that oase were that %he lndlrldual Sn The facts question was a farm& ln ,that ha raised ‘truok. ohlakens and ducks on his farm. Also on said rarm was a m’ nara.?. water well from whloh the individual took the mineral water and delivered and aold, same ,wlthln the oity~ llmlts~ of ihe City of Maoon.
The court concluded that suoh license would have to be begtired under tha‘taota~ and stated as rollowst
‘1. That said mineral water wa:s not a farm product withln tha.meanl.ng ,of seotlon 1851 of the Civil Code of 1910 and that. the requirement of said ordlnanee as o taking out a lioense zas ap- TV
plloable to plaintiff In error.
“2. That the ract that plaintlfr in error drew and bottled sa,id wster from a well located on his own land, and that he was also engaged In raising truck, chickens, and ducks, whioh were
.
Honorable Claude A., ~llllama, Page 8
also delivered by means of, said truok, dld not
-relieve him from procuring the ‘dray’ or ooou-
patlon lloansa as required by said ordlnanoa.*
In the case of Great Western Mushroom Company vs. Industrial Comm., 82 Pao. (26) 751, the Supreme Court of Colorado 5.n construing a similar statute said that the Lagis- lature sought only to exempt seasonal labor suoh as farm labor. This applloant, by its own admission, opar.ates nine or ten months a year, and there is no showing that some work is not done throughout the tmlve months of aaoh year. Can it than be said that Is only seasonal labor as defined by the Commission1 a regulations?
The statutory authority ror the regulations of ~Deo, 5, 1936,. and’fuly 2, 1937, is asant sties. Artlola 522&b-9( a) .,, The oonstltutlonaUty.~ of .rubstan$l ar l$tha s+nw ~egtilatl&ik .: haa besn uphbld. by the. Suprama 36urt .af Ooldr~$ulo~ In. park Floral Co, v. Industrial Uomm.~, 91 Pa@. (26) 492, and by the yp;;;t.Court or Conneotlout in the oasa~of H. Duys & Company , 5 Atl. . (2d) 23.
The authorities cited, together with that of Great Western Hushroom Company, Y. Industrial Cokmlsslon, supra, give ample support for the regulation and determination of your Co~111&3slon prior to iknuary Jr 1940. The’oourts in the Park H. Duys & Company IQoraLand
oases, aupra, 5ay that by the evolutionary prooassse attend- ant upon our present day buaiuara methods many aotlvitles formerly ambraoad in tarmlng hava beoome spealalleod or ra- moved rrom the iarm.
Your rlrat question asksr
Wndar the Texas Unsmploymant Compensation Aat and the Regulat-lons lndlahtad, were and a.0 the sarvloas performed for the employer agrloul- ture labor and exempt?”
It la oar opinion that the dotermination of llabl- llty by the Commlsslon upon the taxes aoorulng prior to Jan- uary 1, 19&O, was supported by the resolutions quoted. That being true, there can be no refund. Therefore, it is unneoes- asry to answer your questions 2, 3 and J, regarding refunds.
,.% .;; ‘~ .‘. ..-
Honorable Claude. A. Wllllams, Page 9
A part 03 four rirst question ia an inquiry 0r the present llab5.l.lty .ot .,the Wlargata ,Haval Stoma. ror unatnplog- ment taxesa
There being no prrsant regulation darlnlng ‘agrim labors*, we must determine the soopa of that term. aultural The Commlaslon plaoes no llraltatlon on the term. In answar- Lng the queatlon of liability prior to January 1, 1940, we reoognlzad the llmltatlon you plaosd on the term *agrloul- tural laboP.by the Commlaslon~a regulations spaolfylng ser- vloea on a farm.’ The word l agrloulture* has a broader mean- ing than farming, In Ra Rodgers, 279 9. W. 800. Lowe Y. North Dakota Workmanta Compensation Bureau, 261, W. W. 867. Vna may be employed ln agriculture and yet not be a farmer ln the ordinary sense of the term, nor even a farm laborer as the term is used In our lien laws.” .._
Eciwk+a~~ ..lri
darining ~%gr~,atii&.~~~l
to that tam ;$hei Mead
Turner TarpaxitlnB ~aabe, ,supra,
ourlty Agency. This, latltade would support the ruling o?
the Commission of March 19, 1940, as refleotkd by thd photo-.
statlo aopy of latter of Orville S. Carpenter, Chairman and Eraoutlva Dlraotor , to,, the Wleqgata, Naval Stmes. ,-We .,do.n@ say that suoh a rullng.would~ be, coljlpat~lbla with ~opf regula- rapogt?d ~baol- :~ tlons arraotlva to~iianuarg ~1, X9&0. 3!&e on alon balng.in sup art or the broad&t &tort 0 .oone$!cuotlkm T
or *agricultural aborn,. pou’ara justified in tbllting that f: daoisltm when ,it doir ‘not oonillot with your own ragulatlons~
‘Iourp .varp truly APPROVED MAY 2, 194l ATTQRWEY GZWEftAL OF !iXXAS /s/ GRom? -
FIRST ASSI-, Yorrgu~o$~ BT /a/ ATTOEtNEy (fBM$RAL
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