Empacadora De Carnes De Fresnillo v. Curry

• Decision Date: 19 January 2007
• Docket Number: No. 05-11499.,05-11499.
• Citation: 476 F.3d 326
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.3d 326

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.

No. 05-11499.

United States Court of Appeals, Fifth Circuit.

January 19, 2007.

R. David Broiles, Karin Knowles Cagle (argued), Cagle Broiles, Fort Worth, TX, for Plaintiffs-Appellees.

Ann Lusas Diamond (argued), Asst. Dist. Atty., Fort Worth, TX, for Curry.

Mary Ellen Roy, Phelps Dunbar, New Orleans, LA, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Texas.

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 We hold that Texas Agriculture Code Chapter 149 has not been repealed or preempted by federal law.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, 98 S.Ct. 1338, 55 L.Ed.2d 614 (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, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985), quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 77 L.Ed. 1265 (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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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 unambiguous 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...