Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 19,2004
Bob Hillman, D.V.M. Opinion No. GA-0191
Executive Director
Texas Animal Health Commission Re: Whether the Texas Animal Health Commission
Post Office Box 12966 may charge a fee for reviewing and processing
Austin, Texas 7871 l-2966 health certificates after their completion by a
private practitioner (RQ-0140-GA)
Dear Dr. Hillman:
You ask whether the Texas Animal Health Commission (the “Commission”) may charge a
fee for reviewing and processing health certificates after their completion by a private practitioner.’
Chapter 161 of the Agriculture Code relates generally to the Texas Animal Health
Commission. See TEX. AGFUC.CODE ANN. 5 161.001-.149 (Vernon 1982 & Supp. 2004).
Subchapter E thereof, which provides for the “regulation and importation of animals,” contains
section 161.081 authorizing the Commission to “regulate the movement . of livestock, exotic
livestock, domestic animals, domestic fowl, or exotic fowl into this state.” Id. f$161.081 (a) (Vernon
Supp. 2004). “The commission by rule may provide the method for inspecting and testing animals
before and after entry into this state.” Id. 5 16 1.08 1(b). Furthermore, “[tlhe commission by rule may
provide for the issuance and form of health certificates and entry permits. The rules may include
standards for determining which veterinarians of this state, other states, and departments of the
federal government are authorized to issue the certificates or permits.” Id. 5 161.081(c). “The
commission shall charge a fee of 25 cents for each health certificate.” Id. 5 161.081(d). You
indicate that a Commission-approved veterinarian ‘writes a certificate ofveterinary inspection after
examination and testing, as appropriate, of animals to be shipped. Once a certificate of veterinary
inspection is completed, a copy is then submitted to this office for review and processing.” Request
Letter, supra note 1, at 2. You ask whether the Commission may “charge an inspection fee for
reviewing and processing the health certificates after completion by a private practitioner.” Id.
You ask this question in light of a statutory provision adopted in 2003 by the Seventy-eighth
Legislature. In House Bill 3442, the legislature enacted the following provision:
‘See Letter from Bob Hillman, D.V.M., Executive Director, Texas Animal Health Commission, to Honorable
Greg Abbott, Texas Attorney General, at 2 (Dec. 1, 2003) (on tile with opinion Committee, also availabienf
http://www.oag.state.tx.us) [hereinafter Request Letter].
Bob Hilhnan, D.V.M. - Page 2 (GA-0191)
SECTION 5. ANIMAL HEALTH COMMISSION. (a) Subchapter
C, Chapter 161, Agriculture Code, is amended by adding Section
161.060 to read as follows:
Sec. 161.060. ZNSPECTZONFEES. The commission may charge a
fee,as provided by commission rule, for an inspection made by the
commission.2
Act of June 1,2003,78th Leg., R.S., ch. 200,§ 5,2003 Tex. Gen. Laws, 784,785. Section 161.060
is not included within subchapter E of chapter 161 of the Agriculture Code, which describes the
process for the issuance of health certificates relating to the importation of animals and authorizes
the Commission to charge a fee of 25 cents for each certificate. Rather, it has been placed in
Subchapter C, which describes the general powers and duties of the Commission. See TEX. AGRIC.
CODE ANN. §$ 161.041-,060 (Vernon 1982 & Supp. 2004) (subchapter C).
Subchapter C contains two references to “inspections” that the Commission is authorized to
perform. Section 161.048, for example, permits “[a]n agent of the commission . . to stop and
inspect a shipment of animals or animal products being transported in this state[.]” Id. 5 161.048(a)
(Vernon Supp. 2004) (emphasis added). Likewise, section 161.049 authorizes the Commission to
“inspect and copy the records of a livestock, exotic livestock, domestic fowl, or exotic fowl dealer
that relate to the buying and selling of these animals.” Id. 5 161.049(d) (emphasis added). And
section 161.047 permits “[a] commissioner or veterinarian or inspector employed by the
Commission [to] enter public or private property for the exercise of an authority or performance of
a duty under this chapter.” Id. 5 161.047(a) (Vernon 1982) (emphasis added). The inspections
authorized by subchapter C are the only Commission-authorized inspections contained within
subchapter C of chapter 161.3 With regard to the health certificates about which you inquire, you
indicate that the Commission “does not perform an actual physical inspection of the animals
represented on the certificate.” Request Letter, supra note 1, at 2. Rather, “[tlhe agency is providing
oversight in that we evaluate the information on the certificate to determine the health status of the
animal and assure the animal is in compliance with applicable health requirements.” Id.
In our opinion, an “inspection” of a health certificate is not the kind of inspection
contemplated by section 161.060. First, nowhere in chapter 161 is the word “inspection” used with
regard to the issuance and review of health certificates. Second, section 161.060 was specifically
included in subchapter C rather than in subchapter E of chapter 161. The only reference to
“inspections” in subchapter E, as we have noted, has to do with the actual physical inspection
of “inspecting and testing animals before and after entry into this state.” TEX. AGRIC. CODE ANN.
5 161.081(b) (Vernon Supp. 2004). Finally, the legislative history reveals a statement to the Senate
*Italicization indicates new language
‘As we have noted, section 161.081(b) declares that “[t]he commission by rule may provide the method for
inspecting and testing animals before and after entry into this state.” TEX. ACRE. CODE ANN. 5 161.081(b) (Vernon
Supp. 2004). This provision, contained within the same section as the Commission’s authority to “provide for the
issuance and form of health certiticates,” refers only to the actual inspection of animals. Id. $ 161.081(c).
BobHil1manD.V.M. - Page 3 (GA-0191)
Finance Committee by House Bill 3442’s Senate sponsor, Honorable Rip Averitt, explaining the
purpose of section 161.060:
Section 5 allows the Animal Health Commission to charge a fee for
inspections. This is permissive; it does not require any fees, but it is
within authority in case it ever happens.
Hearings on Tax. H.B. 3442 Before the Senate Finance Comm., 78th Leg., R.S. (May 23,2003)
(statement by Honorable Kip Averitt, Senate sponsor) (emphasis added). The use of the language
“in case it ever happens” provides convincing evidence that the word “inspection” as used in section
161.060 is not intended to refer to the “inspection” of health certificates. According to the
information you have provided us, the review of health certificates is a routine activity performed
by the Commission. It is not the kind ofphysical inspection contemplated by section 161.048 and
is not a prescribed duty of the Commission. See TEX. AGRIC. CODE ANN. 5 161.048 (Vernon Supp.
2004) (providing that “the commission is entitled to stop and inspect . . . and may detain a shipment
of animals”) (emphasis added). We conclude, therefore, that the Animal Health Commission is not
authorized to charge a fee for reviewing and processing health certificates after their completion by
a private practitioner.
Bob Hillman, D.V.M. - Page 4 (GA-0191)
SUMMARY
The Texas Animal Health Commission is not authorized to
charge a fee for reviewing and processing health certificates after
their completion by a private practitioner.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee