Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 31, 1984
JIM MAlTOX
Attorney General
Eonorable Mark Whit<% Opinion No. JM-294
Supreme Court Building
P. 0. BOX 12548 Governor of Texas
Austin. TX. 7871 l- 2W P. 0. Box 12428, Capitol Station Re: State authority to destroy
51214752501 Austin, Texas 787 1.1 privately owned starving or
Telex 91olS74.13S7 diseased animals
TeIecODier 5121475.0266
Dear Governor White:
714 Jackson. Suite 700
Oallas. TX. 75202.4506 Your request Letter describes a series of events which occurred
2tU742~8944
over the course of several months last winter and vhich caused the
starvation of numa~ous horses. You indicate that
4824 Alberta Ave.. Suite 160
El Paso. TX. 79%5-2793 [allthough the situation seems to have now abated
915633.3484 s-hat, your opinion is needed In order to be
ready tcl taka prompt action if the present
.Jol Texas. Suite 700
situation. becomes aggravated and to determine
Houslon. TX. 77002-3111 vhat, if any. new legfslatfon may be needed to
7131223-5886 alleviate! suffering of animals which might be
trapped in. similnr circumstances in the future.
806 Broadway. Suite 312
Lubbock, TX. 79401.3479
Fortunately, the situation did not become aggravated and, because
8061747-5238 of generous help ~frclmmany concerned individuals and associations. the
situation was actually alleviated shortly after we received your
letter. Nevertheless, your letter expressed concern for much more
4309 N. Tenth. Suite B
than just informs:1 advice about immediate. emergency .action. Your
MeAllen. TX. 78!301-lSS5
SlZ’S52-4547 request called fox extensive research on the authority of the Texas
Animal Realth Cmission and “s other agency or official” to order
the destruction of privately-owned animals dying of starvation. YOU
MO Main Ptua, Suite 400 seek .auch information. in part, “to determine vbat , if any, new
San Antonio. TX. ?a2052797
legislation may be needed. . . .‘I Although this office cannot suggest
512122~4191
new legislation an,d no proposed legislation has been submitted to us
for legal consider a,tion, we can set forth the parameters of the law as
An Equal ODD~rt~nilyl it presently exists.
Allirmatlve Action EF’Dtovn-
The on19 state agency with clear authority to identify and order
the deatruction~ certain animals is the Texas Animal Health
Commission. There was never any question about whether the Cammission
may order the dwtruction of “diseased” animals; there Is clear
authority for aucll action. See Tex. Agric. Code 1161.041; Cluck v.
Texas Animal Eeall:b Commlaaio~ 501 S.W.2d 412 (Tex. Civ. App. - San
Antonio 1973, w&: ref’d n.r.e.1; Nunley v. Texas Animal Health
p. 1314
Honorable Mark White - Page :! (JM-294)
Commission, 471 S.W.2d 144 (Tex. Civ. App. - San Antonio 1971. writ
ref’d n.r.e.1.
The pivotal question raised by your letter is whether the term
“disease” encompasses atmvation. You refer to the comission’a
authority to order the desl:ruction of “starving z diseased animals,”
the word “or” suggesting alternative findings. Information supplied
la connection with your :cequest indicates that the starvation of
horses takes weeks and that there exists a “point of no return,” after
which veterinarians agree that the animal cannot be saved. After this
point, however, the animal. may suffer for several days more before
dying. Consequently, the primary concern expressed la for the
prevention of potential suffering during this period.
As indicated, there was never a question in this case about the
Texas Animal Realth Coarmisaion’s authoritv to order the destruction of
“diseased” animals. See ‘lex. Agric. Code 4161.041; Nunley v. Texas
Animal Health Commission, in With regard to the scope of the
commission’s authority to wt with regard to “disease.” the commission
is governed by the -fundalsental rul; that, in addition to express
powers, administrative agencies have only the powers necessary to
carry out reasonably the :lagislative purpose of the law that guides
the agency. Southwestern Savings and Loan Association of Houston v.
Falkner. 331 S.W.2d 917 I?ex. 1960); Housing Authority of City of
Dallas v. Higginbotham, 143 S.W.Zd 79 (Tex. 1940). Accordingly,
statutory terms such as “disease” must be read in the context of
leglalatlvely intended purposes.
Section 161.041(a) of the Texas Agriculture Code authorizes the
Texas Animal Bealth Commission to protect livestock from certain
s ecified diseases. and subsection (11) authorizes protection from
*iseases recognil:ed as cmnicable by the veterinary
profession.” No one sugge:rts that starvation is itself a communicable
disease. Additionally, tbr cosasisaion. in its discretion. “may act to
eradicate or control a12r disease that affects livestock . . .
regardless of whether the disease is communicable.” (Emphasis added).
Agric. Code 5161.041(b). Starvation and extremely adverse conditions
could clearly cause’ a t’zreat of communicable or non-communicable
disease upon which the cwrmission. in its discretion, could act
pursuant to the Agriculture Code’s grant of authority to “act to
eradicate or control say disease that affects livestock . . .
regardless of whether the disease is communicable.” (Emphasis added).
Id. Nevertheless, the nature and extreraity of circumstances
sufficient to warrant an exercise of the police power depend on fact
determinations which we cannot address in the opinion process.
Apparently, the veterinary profession Is, at present. unsettled
as to whether starvation Itself actually constitutes a “disease.”
Section 161.041(a)(ll) expressly ties the determination of what
p. 1315
Ronorable Mark White - Page 3 (JM-294)
constitutes a communicable disease to the standard practice of the
veterinary profession. Section 161.041(b) refers to 9 “disease,”
communicable or not. which affects livestock; it does not expressly
tie the meaning of “disease” to the standard practice of the
veterinary profession. Neu,ertheleas, reference to such expert advice
is implicit In the whole scheme of animal disease control set forth in
the Agriculture Code. The determination of whether starvation could
be a “disease” depends upor, adjudicative facts and agency expertise
which are outside the auth>,rity of this office to decide. Moreover,
we must construe the commicwion’s authority over “disease” within the
context of the meaning of t,h.e term intended by the legislature in the
Agriculture Code and with%1 constitutional limits on the exercise of
the powers conferred.
The coarmiaaion’a powr to control “disease” by ordering the
destruction of privately-owed. diseased animals involves an exercise
of the police power for the public welfare. Because the law in Texas
regards animals as private property, animal owners have all
traditional property rights in their animals; accordingly, both the
taking of property and th.e procedure involved in the taking are
relevant. See Nunley v. Texas Animal Health Commission. supra; see
also Dibrell City of Coli&. 172 S.W. 550 (Tex. Civ. App. - Aus=
1914. writ ref’d).
Exercise of the poli~:e power of the state in designating and
consigning to death diseased animals is not a “taking or damaging” of
property proscribed by ;;rticle I. section 17 of the Texas
Constitution, nor a “taklnf” under the Fifth and Fourteenth Amendments
to the United States Constftution because a compelling public interest
exists. See Nunley v. Texas Animal Health Commission. supra; Attorney
General Opinions H-148 (19 v3); WW-835 (1960). Since the Nunlee case
was decided, however. the Texas Supreme Court held, in another
context, that property ma:, not be taken without compensation under
certain circumstances, even in the exercise of the police power. See
City of Austin v. Teague, 570 S.W.Zd 389 (Tex. 1978); see also e
v. City of Waco. 396 S.W.2d 103 (Tex. 1965); San Antonio River
Authority v. Levis, 363 S.W.2d 444 (Tex. 1962). The constitutional
teat is whether the public need outweighs the private loss. city of
Austin v. Teague. eupra at 393.
With regard to the EF,cedure required, the court in Nunley v.
Texas Animal Health Coxnnission
-- stated that
In the area of health, where administrative
orders have as i.beir purpose the elimination of
disease or the prevention of its spread, the
courts have demor,strated a willingness to dispense
with the requirement of a hearing, particularly
p. 1316
Aonorable Mark White - Page #i (al-294)
where the administrative decision ia based on test
or inspection.
471 S.W.2d at 148. The exectzise of such power without a hearing was
upheld because of the compeIL:Ling public interest present and because
the admlnistrative declslon ‘KPS based on a test or inspection. -Id.
If the legislature had intended the term “disease” within the
Agriculture Code to include starvation, it would necessarily have
Included provisions for different administrative procedures. The
considerations applicable t.0 an administrative determination of
starvation as a “disease” may differ from the tests applicable to
traditional diseases. The procedural problem is compounded by the
danger that private property will be taken “solely” to alleviate
suffering. The Agriculture! Code provides the Texas Animal Health
Commission with “0 authorit>, to order destruction of stanting animals
solely on the basis of allev:‘.ating suffering. In the other instances
in which the legislature has authorized
_-- such action, a much more
extensive administrative procedure hasp been provided, presumably to
protect the due process an& property Interests of the animal owners
involved. -See V.T.C.S. art. 182a, 012(b), 4.
Consequently, given tlw unsettled status of starvation as a
“disease” within the context. of the Agriculture Code and given the
importance traditionally a,ccorded by the legislature to the
constitutional rights which are affected by the commission’s actions,
we conclude that the leglsl``ture did not intend the term “disease” to
encompass starvation alone as a disease as a matter of law. As’
indicated previously, howev ::e, depending upon the adjudicative facts
involved, starvation could clearly cause a disease threat upon which
the commission could act pursuant to Agriculture Code’s grant of
authority to “act to eradicate or control any disease that affects
livestock . . . regardless elf whether the disease is cmnlcable.”
5161.041(b).
Although the Agriculture Code fails to provide the Texas Animal
Realth Cos+ssion with tha! authority to order the destruction of
privately-owned starving animals for the purpose of alleviating the
animals’ suffering, a statate which is applicable to certain local
public officials does provide some authority to do so. -See V.T.C.S.
art. 182a.
Article 182a. V.T.C.S, :, authorizes certain actions to prevent
cruelty to animals. The act: provides, in pertinent part:
Section 1. In this Act ‘cruelly treated’ means
tortured, seriously overworked, unreasonably
abandoned, unreasonably
-- deprived of necessary
food, care, or slsm, cruelly confined. caused
p. 1317
Honorable Hark White - Page 5 (JM-294)
to fight with ancther animal, or otherwise cruelly
treated.
Sec. 2. (a) If a county sheriff, constable,
or deputy cons,ctble or an officer who has
responsibility Yor animal control In an
incorporated cir:; or town has reason to believe
that an animal -ias been or is being cruelly
treated, he may apply to a justice court in the
county where the-animal is located for a warrant
to seize the anLna1. On a showing of probable
cause to believe-chat the animal has been or is
being cruelly trcdlted. the court shall issue the
warrant and set a time within 10 days for a
hearing in the c.ourt to determine whether the
animal has been cruelly treated. The officer
executing the wal’rant shall cause the animal to be
impounded and sl``ll give .written notice to the
owner of the animal of the time and place of the
justice court hez.ring.
(b) If the owner of the animal is found guilty
in county court of a violation of Section 42.11,
Penal Code, invo:lving the animal, this finding is
.prima facie evidence at’ the hearing that the
animal has been cruelly treated. Statements of an
owner made at a hearing provided for in this Act
are not admissible In a trial of the owner for a
violation of Secl:ion 42.11. Penal Code. After all
interested partit!s have been given an opportunity
to present evide;ce at the hearing if the court
finds that the &ner of an animai has cruelly
treated the anirm?., the court shall order a public
sale of the animal by auction. If the court does
not find that th; owner of the animal has cruelly
treated the aniell. the court shall order the
animal returned 1x1 the owner.
. . . .
[Sec. 31 (c) ‘If the officer is unable to sell
the animal at au&on. he may cause the animal to
be destroyed or 121~ give the animal to a nonprofit
animal shelter,- pound, or society for the
Protection of an:$&.
(Emphasis added).
p. 1318
Honorable Mark White - Page 6 (.I%294)
Article 182a thus provLdes some local authority to work through
the justice court co order the destructionof privately-owned animals
dying of starvation. The (act, however, provides a necessary but very
time-consuming procedure to protect the interests of animal owners.
See also art. 182a. $4 (appeal by animal owner authorized).
Accordingly, the act provli.es little help for situations which require
more immediate action, such as the one presented here.
No other state or 10~1 agency or offlclal presently holds the
authority to order the destruction of privately-owned animals that are
dying of starvation. In article 182a, the legislature evidenced a
willingne& to view animals as something more than personal property
subject to the uncontrolled use or abuse of their owners. Until the
legislature views animals a,s something other than Inanimate personal
property, however, the constltutlonal protections to which their
owners are entitled may prevent Immediate emergency action to
alleviate suffering.
SIIMMARY
The Texas Animal Realth Commission has only the
authority to exercise powers reasonably necessary
to control and prevent "disease." Although
starvation and extremely adverse conditions could
clearly cause azhreat of "disease," star9etion is
not, as a matter of law, s disease within the
meaning of the Texas Agriculture Code, section
161.021 et seq.
Article 182a, V.T.C.S., authorizes specified
local government: officials to work through the
justice court to tdeal with privately-owned animals
dying of starva.tion. No other state or local
agency or offic:ial presently holds the authority
to order the destruction of privately-owned
animals that are ,dying of starvation.
JIM MATTOX
Attorney General of Texas
TOE GREEN
First Assistant Attorney General
p. 1319
Honorable Mark Uhlte - Page 7 (JM-294)
DAVID R. RICHARDS
Executive Assistant Attoruey General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINIONCOMITTEE
Rick Gilpin, Chairman
Susan Garrison
Tony Guillory
Susan Eenricks
Jim Hoellinger
Jennifer Riggs
p. 1320