2. Background of the Case and Controversy

2.1. The issue is whether Texas can prohibit the commercial activities that involve the purchase, transport, and sale of horsemeat for human consumption, where the consumers are outside of Texas and the United States. There are only two processors of horsemeat for human consumption operating in the United States. Both are located in Texas-Beltex Corporation and Dallas Crown, Inc. Their product is processed in Texas, is transported in Texas, and is shipped to foreign destinations from Texas. Plaintiffs make no sales of horsemeat for human consumption in the United States.

2.2. Horses and cattle, which had for centuries been raised and eaten in Europe, were first introduced into this continent about 500 years ago, with the Spanish conquests in the central and southern Americas. While horsemeat, like beef, poultry, and game has long been consumed in Europe, in the United States the human consumption of horsemeat has never been popular enough to warrant commercial sales. Nonetheless, the presence of millions of horses on this continent has justified commercial processing of horsemeat for human consumption abroad, and, therefore, slaughterhouses have profitably operated since the advent of refrigeration and means to safely transport meat.

2.3. The Texas Meat Inspection Law was passed by the Texas 49th Legislative Session in 1945. This act delegated to the State Health Officer the authority to regulate the processing and sale of the edible meat of cattle, calf, sheep, swine, or goat. Its purpose was to "prohibit and prevent the sale of food for human consumption of meat from criminals . . . and to provide adequate and uniform regulations for inspection of meat and meat produces intended for human consumption." Section 18 provided that "[i]t shall be unlawful to sell for food for human consumption meat from the carcasses of horses, dogs, mules, donkeys, cats or other animals not normally used for human food." The 51st Legislature in 1949 passed what is now Chapter 149, and expressly repealed Section 18 of the Act quoted above, as to horses, replacing that prohibition with a broader and more punitive prohibition. The original purpose of that Meat Inspection Act was to protect the public from unhealthy meat, but, as to horsemeat, the Legislature concluded that healthy or not, people should not sell horsemeat to others because that was not the kind of meat "normally used for human food."

2.4. In 2000, worldwide export of horsemeat from the twelve largest exporting countries was 131,963 metric tons. The United States exported 10,061 metric tons of processed meat, Mexico exported 2,159. Worldwide production of horses in 2000 was 672,109 metric tons, with Mexico being the second largest processor with 156,000 metric tons, and the United States having processed 20,500 metric tons of horses. In 2001, 11,940 metric tons of processed horsemeat was exported from the United States, worth more than $41 million.

2.5. In the United States there are only two horsemeat processors, both Plaintiffs, and they process approximately 50,000 horses a year for foreign sales. Approximately 70% of the horses they slaughter are purchased from owners in other states, and transported in interstate commerce to the processing plants. Horses sent for slaughter are typically older, neglected, displaced or retired animals no longer useful for saddle, ranch, recreation, breeding or racing activities. These horses are often purchased by commercial horse-buyers at auctions for between $300 to $700, and are transported to slaughterhouses that are regulated by state and federal agencies. Those who purchase horses and transport them to slaughterhouses are subject to extensive federal regulation. 21 U.S.C. ' 601 et. seq.

2.6. Like cattle, the horses are killed using humane methods, as required by the Humane Methods of Slaughter Act, 7 U.S.C. ' 1901 et. seq., with United States Department of Agriculture (USDA) inspectors on site during all operating hours. 21 U.S.C. ' 603 et. seq. The Texas operations are subject to state supervision and regulation under TEX. AGRICULTURE CODE Ch. 148, which requires registration, the purchase of only marked or branded animals purchased with a bill of sale, with records kept as prescribed, and with payment of a $2.00 fee to the Texas Agriculture Extension Service and $4.00 to a designated state agency "for each horse purchased for slaughter."

2.7. In addition to the sale of horsemeat for human consumption, most parts of the horse carcass can be sold for other purposes, including baseball covers, shoes, leather products, pharmaceuticals used in open heart surgery, violin bows, pet food, fertilizer, and to feed zoo animals, some of which are endangered species dependent on horsemeat. Numerous organizations or persons will be irreparably injured if the Plaintiffs are not permitted to process horsemeat. Here are but a few examples. The Texas Animal Health Commission, an agency of the state, is permitted to have a technical representative at the facilities to test for equine disease. The authority for this is found in the Texas Agriculture Code, Chapters 161 through 168. Specifically, surveillance is undertaken for "equine infectious anemia," an incurable disease caused by a virus and spread to animals by bitting flies. Laboratory tests are done on the horses, in order to monitor this condition. Any tests that prove positive are traced back to the herd of origin through the record keeping required by the state and federal governments, so that herds can be handled according to appropriate regulations. Members of the Sheriffs Association of Texas contact the meat processors in their efforts to recover stolen horses. Beltex Corporation has served as coordinator in several USDA funded equine projects with the School of Veterinary Medicine of the University of California, Davis. These studies rely on samples, for various physiological studies examining basic immunological and stress mechanism and pathological processes. Texas A&M College of Veterinary Medicine is supplied equine reproduction tracts and feet for instruction to students in examination of abnormalities, nerve block procedures, and reproduction tracts for abnormalities and pregnancy determinations. Horse shoeing schools are provided cadaver legs to be used by students to learn proper hoof preparation for the application of shoes as well as for dissection for the study of the anatomy of the hoof and leg. Central Nebraska Packing, Inc. relies upon horsemeat products for diets which it prepares and sells mainly for exotic animals housed in zoos throughout the United States. These animals require a nutritionally balanced diet, which closely resembles the diet they would receive in the wild. If the two horse plants in Texas were closed this product would not be available. Among the customers purchasing horsemeat for their animals are the Dallas Zoo, Fort Worth Zoo, Houston Zoo, Austin Zoo, New York Zoological Society, Ziegfried & Roy, Denver Zoo, Miami Zoo, Baltimore Zoo, Ringling Brothers, Indianapolis Zoo, Little Rock Zoo, Oklahoma City Zoo, University of California, and many others. The Texas and Southwestern Cattle Raisers Association has inspectors at the facilities pursuant to state legislation, their purpose being to inspect and try to apprehend stolen horses and to build a data base for prevention of horse theft. Edwards Life Sciences L.L.C. is a global leader in products and technologies to treat advanced cat cardiovascular disease and the leading heart valve company in the world. Its products are sold in 80 countries, and it uses equine pericardia for the manufacture of life saving products including the equine pericardial patch, valve replacement, cardiopulmonary bypass, left-ventricular assist device implantation, and numerous other procedures. Oklahoma State University has collected mare tracts utilized for teaching reproductive physiology and other equine courses.

2.8. Those who presently oppose the slaughter of horses for human consumption seek to protect the public solely from the possible offensiveness that might arise from foreigners eating horsemeat, which the Legislature considers meat not normally consumed by humans. No legitimate health or safety issues are involved, because the industry is subject to the identical regulations and inspections procedures applicable to other types of meat that are sold for human consumption. But there are people who oppose, and who would prohibit, the slaughter of horses for sale for human consumption, and the vehicle they seek to employ is TEX. AGRICULTURE CODE Ch. 149, by prosecuting those who process horse meat intended for human consumption, and enjoining their businesses from operation.

2.9. On February 13, 2002, a Texas State Representative requested from the Texas Attorney General an opinion about the enforceability of Chapter 149. In March 2002, letters urging the Attorney General to uphold the provision were submitted by lawyers representing the Society for the Prevention of Cruelty to Animals of Texas, Inc., the Humane Society of the United States, the Humane Society of Greater Dallas, and other groups with concerns for animals and horses. No brief submitted to the Attorney General suggested horsemeat posed health hazards to those who consume it, or that horsemeat was deceptively marketed. In response, the Texas Department of Agriculture suggested to the Attorney General that Chapter 149 "was likely preempted by federal law" and that it was not authorized to enforce Chapter 149. On August 1, 2002, the Attorney General, in Opinion No. JC-0539, opined that Chapter 149 was not preempted by the federal Meat Inspection Act, 21 U.S.C. ch. 12, and that only county or criminal district attorneys could investigate and prosecute alleged violations of Chapter 149.

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