* OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS JOHN CORNYN

October 3,200l

Mr. Ron Allen Executive Director Opinion No. JC-042 1
Texas Board of Veterinary Medical Examiners Re: Whether aveterinarian may refuse to return 333 Guadalupe, Suite 2-330 an animal if its owner is unable or unwilling to Austin, Texas 78701-3998 pay for the veterinary medical services rendered, and related questions (RQ-037%JC)

Dear Mr. Allen:
You have requested our opinion regarding the options available to aveterinarian ifthe owner of an animal is unable or unwilling to pay for veterinary medical services rendered to the animal. For the reasons explained below, we conclude that the veterinarian has alien on an animal for whom he has rendered medical services, but that the lien is not possessor-y. Furthermore, such an animal may not be considered “abandoned” forpurposes ofsection 801.357 ofthe Texas Occupations Code so long as the owner makes a good faith effort to reclaim it.
You first ask whether aveterinarian may refuse to return an animal to its owner ifthe latter is unable or unwilling to pay for the veterinary medical services rendered. For purposes of this question, we assume that the veterinarian has not mailed the notice required by section 801.357 of the Occupations Code. See discussion infia pp. 4-5.
Domestic animals are deemed to be personal property in Texas. Bueckner v. Hamel, 886 S.W.2d 368,370 (Tex. App.-Houston [lst Dist.] 1994, writ denied). The delivery by the owner of an animal into the custody of aveterinarian for purposes ofreceiving medical care is in the nature of a bailment. Four elements are necessary to create a bailment: (1) the delivery of personal property by one person to another in trust for a specific purpose; (2) acceptance of such delivery; (3) an express or implied contract that the trust will be carried out; and (4) an understanding under the terms of the contract that the property will be returned to the transferor or dealt with as the transferor directs. Yoakum Grain, Inc. v. Energy Indus., Inc., 511 S.W.2d 95, 98 (Tex. Civ. App.-Corpus Christi 1974, no writ). A mere bailment does not in itself create alien on property in the possession ofthe bailee. SeeAlice Pipe & Supply Co. v.Harroun, 195 S.W.2d 852,854 (Tex. Civ. App.-San Antonio 1946, writ ref d n.r.e.) (once purpose of bailment is fulfilled, bailee has obligation to return bailed property to owner, even in the absence of express requirement to do so). Thus, we must determine whether aveterinarian holds alien on an animal delivered to him for theMr. Ron Allen - Page 2 (JC-042 1)

purpose of medical treatment. Five types of lien are recognized in Texas: (1) contractual; (2) constitutional; (3) common law; (4) statutory; and (5) equitable. See 50 TEX.JUR.3DLiens $52,12, 41 (2000).
A lien may be created by contract. Creation of acontractual lien results fi-omthe language ofthe contract, and isbased upon the intent ofthe parties. Inwood N. Homeowners Ass ‘nv.Harris, 736 S.W.2d 632,634 (Tex. 1987). The language need not be explicit, but may be inferred from the parties’ statements and conduct. Edinburg Theatres, Inc. v.Richter, 367 S.W.2d 354,356 (Tex. Civ. App.-San Antonio 1963, no writ). Ifthe veterinarian and the owner ofthe animal create a lien on the animal by contract, they may include therein any conditions not prohibited by law, including a

. provision that the veterinarian may refuse to return possession ofthe animal until all charges have been paid. You do not indicate that you are concerned about liens created by contract.
Article XVI, section 37 of the Texas Constitution provides that “[mlechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor.” TEX.CONST.art. XVI, 837. A lien created under article XVI, section 37 extends to artisans who repair or otherwise enhance the value of personal property. Christian v. Boyd, 222 S.W.2d 157, 160 (Tex. Civ. App.-Fort Worth 1949, no writ). A veterinarian has never been held to be a “mechanic, artisan or material man” for purposes of this constitutional provision. In Cotton Belt State Bank, Timpson v. Roy H. Hatcheries, Inc., 351S.W.2d 325,326 (Tex. Civ. App.-Waco 1961, no writ), the court said that aperson whose business itwas to custom-hatch eggs was not entitled to alien under article XVI, section 37. In our opinion, the same may be said for veterinarians.
A common-law lien is aright in one person to retain that which is in his or her possession, but belongs to another, until certain demands of the person in possession are satisfied. City of Ingleside v.Johnson, 537 S.W.2d 145, 152 (Tex. Civ. App.-Corpus Christi 1976, no writ). This kind of lien arises by implication of law and is founded generally on the right to the lien as aresult ofthe established usage of aparticular trade. Id. Many ofthe cases recognizing common-law liens in Texas relate to the banking industry. See, e.g., San Felipe Nat ‘I Bank v. Caton, 668 S.W.2d 804, 805 (Tex. App.-Houston [14th Dist.] 1984, no writ). You do not indicate, and we have found no information that would suggest, that common-law possessor-y liens are part of the “established usage” of the veterinary profession.
The fourth category ofliens consists ofthose created by statute. Although statutory liens do not require possession in order tobe effective, many ofthem are deemed by statute tobe possessory. Byrne v. Williams, 45 S.W.2d 336,339 (Tex. Civ. App.-Amarillo 1931, writ ref d). Subchapter A, chapter 70 ofthe Property Code recognizes anumber ofpossessor-y liens, such asthose for laundry and dry cleaning, for storage of motor vehicles, and for items such as dies, molds and patterns left inthe custody ofaplastic fabricator. See TEX.PROP. CODE ANN.$070.002, ,004, ,009 (Vernon 1995 & Supp. 2001). The only statutory lien potentially relevant to a veterinarian is that created by section 70.003, which provides, in relevant part:Mr. Ron Allen - Page 3 (JC-0421)



### (a)A stable keeper with whom an animal is left for care the animal for the amount ofthe charges for the care. has alien on

We have been apprised of no case that suggests that a veterinarian may reasonably be denominated a“stable keeper.” A “stable,” in the context ofhousing for animals, is defined as “[a] building fitted with stalls, loose-boxes, rack and manger and harness appliances, in which horses are kept. Formerly used in awider sense: abuilding in which domestic animals, as cattle, goats, etc. arekept.” XVI OXFORD ENGLISHDICTIONARY43l(2d ed. 1989). Aveterinarian’s office would not inmost circumstances meet this definition of“stable.” We assume forpurposes ofthis opinion that your question refers to veterinarians who do not also operate stables. Furthermore, your question asks us to assume that the veterinarian has performed medical services on an animal. One court has held that alien under section 70.003 ofthe Property Code “allows liens for property that is stored, not for property on which work was performed.” Dob ‘sTire &Auto Ctr. v. Safeway Ins. Agency, 923 S.W.2d 715, 719-20 (Tex. App.-Houston [lst Dist.] 1996, writ dism’d w.0.j.). We thus conclude that section 70.003, which creates apossessor-y lien on certain items, does not apply to a veterinarian who performs medical services on an animal.
The last category of liens available in Texas is that of equitable liens. An equitable lien is aright to have particular property subjected to the payment of adebt. 50 TEX.JUR. 3DLiens $j15 (2000). Itis ordinarily based on an implied contract arising out ofthe relationship ofthe parties and the circumstances of their dealings. Richards v. Suckle, 871 S.W.2d 239, 241-42 (Tex. App.-Houston [14thDist.] 1994, no writ); seegenerally, Houston Nat ‘1 Exch. Bankv. De Blanc, 247 S.W. 897,900-01 (Tex. Civ. App.-Beaumont 1923, no writ). The purpose of an equitable lien isto enforce apurchase money obligation not otherwise secured. GXG, Inc. v. Texacal Oil & Gas, 977 S.W.2d 403, 427 (Tex. App.-Corpus Christi 1998, pet. denied). It is available only when the claimant has no adequate remedy at law. Hoarel Sign Co. v.Dominion Equity Corp., 910 S.W.2d 140, 143 (Tex. App.-Amarillo 1995, writ denied). In the absence of an express equitable lien, a court may declare that an implied lien exists, based on general considerations ofright andjustice as applied to the relations ofthe parties and the circumstances oftheir dealings. Richards, 871S.W.2d at241-42. Possession ordinarily remains with the debtor in an equitable lien. 50 TEX.JUR.3~Liens 8 15 (2000).
After reviewing these five types of lien, we conclude as follows: A veterinarian has neither aconstitutional, common-law, nor statutory lien on an animal for which he has performed medical services. Aveterinarian has acontractual lien for such services only ifhis contract with the animal’s owner specifically so provides. It follows that a veterinarian, in the usual circumstances, at most holds an equitable lien on the animal for those services. Because an equitable lien is not possessory, a veterinarian may not refuse to return the animal to the owner merely because the owner is unwilling or unable to pay for the medical services rendered. Furthermore, refusal to return the animal may amount to conversion. Conversion “occurs when one who isunauthorized wrongfully assumes and exercises dominion and control over another’s property, to the exclusion of the true owner’s rights, even though possession ofthe property may have originally been acquired by lawfulMr. Ron Allen - Page 4 (JC-0421)

means.” Bosworth v.GulfCoast Dodge, Inc., 879 S.W.2d 152,158 (Tex. App.-Houston [14th Dist.] 1994, no writ).
You next ask whether aveterinarian may, pursuant to section 801.357 of the Occupations Code, dispose of an animal on the grounds that ithas been “abandoned” by the owner. Specifically, you ask us to assume that “the owner makes agood faith effort to arrange with the veterinarian to make installment payments and otherwise insists that he wants the animal returned, but the veterinarian considers such arrangements to be unsatisfactory and refuses to return the animal tothe owner.“* Once again, forpurposes ofthis question, we assume that the veterinarian has not mailed the notice authorized by section 801.357 of the Occupations Code. See discussion infra pp. 4-5.
“Abandonment isthe relinquishment of aright by the owner [ofproperty] with the intention to forsake and desert it.” Tex. Water Rights Comm ‘nv. Wright, 464 S.W.2d 642,646 (Tex. 1971). “The term ‘abandoned’

. . . is a question of fact to be ascertained from all the facts and circumstances.” Fender v. Schaded, 420 S.W.2d 468,473 (Tex. Civ. App.-Tyler 1967, writ ref d n.r.e.); see also Lopez v.State, 797 S.W.2d 272,273 (Tex. App.-Corpus Christi 1990, writ denied). When the concept is applied to personal property, it includes an intent by the owner to leave the property free to be appropriated by another person. R.R. Comm ‘nof Tex. v. Waste Mgmt. of Tex., Inc., 880 S.W.2d 835,843 (Tex. App.-Austin 1994, no writ). Because you have asked us to assume that the owner “makes a good faith effort to arrange with the veterinarian to make installment payments and otherwise insists that he wants the animal returned,” we conclude as amatter of law that the owner in such circumstances has not “abandoned” his animal. Request Letter, supra note 1,at 1.
We next consider the options available to aveterinarian who has complied with the statutory notice requirements of section 801.357 of the Occupations Code. That statute provides:

(a) Aveterinarian may dispose ofan animal that is abandoned in the veterinarian’s care ifthe veterinarian: (1) gives the client, by certified mail to the client’s last known address, notice of the veterinarian’s intention to dispose ofthe animal; and (2) allows the client to retrieve the animal during the 12 days after the date the veterinarian mails the notice. (b) Aveterinarian may not dispose ofananimal under Subsection (a) if:

‘Letter from Mr. Ron Allen, Executive Director, Texas Board ofVeterinary Medical Examiners, toHonorable John Comyn, Texas Attorney General at 1(Apr. 25,200l) (on file with Opinion Committee) [hereinafter Request Letter].Mr. Ron Allen - Page 5 (JC-0421)

(1) a contract between the veterinarian and client provides otherwise; or (2) after notice is given under Subsection (a), the veterinarian and client agree to extend the veterinarian’s care of the animal. (c) The client’s contact of the veterinarian by mail, telephone, or personal communication does not extend the veterinarian’s obligation to treat, board, orcare for an animal unless the veterinarian and client agree to extend the veterinarian’s care of the animal. (d) An animal isconsidered abandoned on the 13th day after the date the veterinarian mails the notice under Subsection (a) unless an agreement is made to extend the care for the animal. (e) Notice given by a veterinarian under Subsection (a) does not relieve a client of liability to pay for treatment, boarding, or care provided by the veterinarian.
TEX.OCC.CODEANN. 4 801.357 (Vernon 2001). Subsection (a) of section 801.357 permits the owner to retrieve the animal “during the 12 days after the date the veterinarian mails the notice.” The statute does not specify that either payment or apromise to pay is a condition for retrieval during this period. Thus, even ifaveterinarian has complied with the statutory notice requirements, he must release the animal to its owner on demand during the first 12days after mailing the requisite notice, without regard to the owner’s inability orunwillingness to pay the accrued charges. As of the 13th day, however, the statute deems the animal tobe “abandoned.” Inthat case, the animal may be “appropriated by another person,” and accordingly, the veterinarian may dispose of the animal ashe sees fit. R.R. Comm’n of Tex., 880 S.W.2d at 843.
You also ask whether, during the period an animal isheld by aveterinarian for nonpayment of medical charges, the veterinarian is “obligated to continue medical treatment of the animal if required for the well being ofthe animal.” Request Letter, supra note 1,at 1. We note that we have determined that aveterinarian may not hold an animal fornonpayment offees ifthe owner demands his animal’s return. We thus limit our answer to those situations in which the animal’s owner has not demanded its return.
In abailment for the mutual benefit of the parties, and in the absence of a special contract, the bailee isheld to an ordinary orreasonable degree ofcare. See Trammel1 v. Whitlock, 242 S.W.2d 157, 159 (Tex. 1951). Section 42.09 of the Penal Code provides that aperson commits a class A misdemeanor [statejail felony] ifhe, inter alia, “fails unreasonably toprovide necessary food, care, or shelter for an animal in his custody.” TEX.PEN.CODEANN.842.09(a)(2) (Vernon Supp. 2001). One Texas court has said that the term “necessary food,’ means “food sufficient inboth quantity andMr. Ron Allen - Page 6 (JC-0421)

quality to sustain the animal in question, and the sufficiency ofthe quantity in terms ofpounds and bushels can only be determined in relation to the quality in terms ofnutrition.” Cross v. State, 646 S.W.2d 514,5 16(Tex. App.-Dallas 1982, writ ref d). By analogy, we believe that “necessary care” includes whatever medical care is necessary “to sustain the animal in question.” Finally, you ask whether a veterinarian who provides “necessary treatment
. . . and also boarding fees” may charge the owner for such services “[dluring the period that [the] animal isheld by the veterinarian for nonpayment of.

. . medical fees.” Request Letter, supra note 1, at l-2. Again, we note that a veterinarian may not hold an animal for nonpayment of fees if the owner demands the animal’s return. As discussed above, when the veterinarian has furnished notice to the animal’s owner in accordance with section 80 1.357 of the Occupations Code, the statute itself provides that such notice “does not relieve aclient ofliability topay for treatment, boarding, orcare provided by the veterinarian.” Even when aveterinarian has not provided notice, we believe it is clear that because a veterinarian is obligated by law to provide necessary care to the animal, including medical and boarding services, he may recover from the owner expenses for performing those services, and that he may have an equitable lien on the animal for payment. As previously noted, the purpose of an equitable lien is “to enforce a purchase money obligation not otherwise secured.” GXC, Inc., 977 S.W.2d at427. Thus, aveterinarian who provides “necessary treatment” to an animal in his custody is entitled to recover from the owner the veterinarian’s reasonable charges for performing that treatment, as well as boarding fees.Mr. Ron Allen - Page 7 (JC-0421)

SUMMARY
Ifaveterinarian has complied with the notice requirements of section 801.357 ofthe Texas Occupations Code, he must, during the first 12 days after mailing the notice, release to the owner upon demand an animal for which he has performed veterinary medical services, without regard tothe inability orunwillingness ofthe owner topay the accrued charges. On the 13th day after the veterinarian has mailed the notice, the animal is deemed “abandoned,” and the veterinarian may dispose of the animal as he sees fit. If the veterinarian has not complied with the statutory notice requirements, he may not at any time refuse to return the animal to its owner upon demand. A veterinarian may have an equitable lien on an animal for which he has performed medical services, but such lien is not possessory. Aveterinarian isrequired by both common and criminal law to continue medical treatment for an animal inhis custody ifsuch care is required for the animal’s well-being. A veterinarian who provides necessary treatment to an animal inhis custody is entitled to recover from the owner the veterinarian’s reasonable expenses in performing that treatment and boarding the animal.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General
NANCY FULLER Deputy Attorney General -General Counsel
SUSAN D. GUSKY Chair, Opinion Committee
Rick Gilpin Assistant Attorney General, Opinion Committee