JIMMAlTOX AttorneyGeneral

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AnEqualODD~rt~nilyl Allirmatlve Action EF’Dtovn

# TheAttorney General ofTexas

December31, 1984

Eonorable MarkWhit<% Governor of Texas P. 0. Box 12428, Capitol Station Austin, Texas 

### 7871.1

Dear Governor White:
Your request Letter describes a series of events which occurred over the course of several months last winter and vhich caused the starvation of numa~oushorses. Youindicate that Opinion No. JM-294
Re: State authority to destroy privately owned starving or diseased animals

[allthough the situation seems to have nowabated s-hat, your opinion is needed In order to be ready tcl taka prompt action if the present situation. becomes aggravated and to determine vhat, if any. new legfslatfon maybe needed to alleviate! suffering of animals which might be trapped in.similnr circumstances in the future. Fortunately, the situation did not become aggravated and, because of generous help ~frclm manyconcerned individuals andassociations. the situation was actually alleviated shortly after we received your letter. Nevertheless, your letter expressed concern for much more than just informs:1 advice about immediate. emergency .action. Your 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 seek .auch information. in part, legislation maybe needed.

. . .‘I “to determine vbat, if any, new Although this office cannot suggest newlegislation an,dno proposed legislation has been submitted to us for legal consider 

### a,tion, wecan set forth the parameters of the lawas it presently exists.
The on19 state agency with clear authority to identify andorder the deatruction~ certain animals is the Texas Animal Health Commission. There wasnever anyquestion about whether the Cammission may order the dwtruction of “diseased” animals; there Is clear authority for aucll action. See Tex. Agric. Texas Animal Eeall:b Commlaaio~ Code 1161.041; Cluck v. 501 S.W.2d 412 (Tex. Civ. App. - San Antonio 1973, w&: ref ’d n.r.e.1; Nunley v. Texas Animal Health

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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 andthat 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. Animal Health Commission, in Code 4161.041; Nunley v. Texas 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). statutory terms such as “disease” Accordingly, 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.” Noone sugge:rts that starvation is itself a communicable disease. Additionally, tbr cosasisaion. in its discretion. “mayact 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 wecannot 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

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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 schemeof 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, wemust construe the commicwion’s authority over “disease” within the context of the meaning of t,h.eterm intended by the legislature in the Agriculture Code andwith%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&. 1914. writ ref

’d). 172S.W. 550 (Tex. Civ. App. - Aus=

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 andFourteenth Amendments to the United States Constftution because acompelling public interest exists. See Nunleyv. Texas AnimalHealth Commission. supra; Attorney General Opinions H-148 (19v3); 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. Austin v. Teague. eupra at 393. city of

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 awillingness to dispense with the requirement of a hearing, particularly

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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:Lingpublic interest present and because the admlnistrative declslon ‘KPSbased onatest 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” maydiffer 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 haspbeen provided, presumably to protect the due process an&property Interests of the animal owners involved. SeeV.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, weconclude 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 elfwhether 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 someauthority to do so. See V.T.C.S. - art. 182a. Article 182a. V.T.C.S, :, authorizes certain actions to prevent cruelty to animals. Theact: 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

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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 mayapply to a justice court in the county where the-animal is located for awarrant 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 thewal’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 ownerof 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 madeat 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 apublic 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 1x1the owner.

. . . . [Sec. 31 (c) ‘If the officer is unable to sell the animal at au&on. he maycause the animal to be destroyed or 121~give the animal to anonprofit animal shelter,- pound, or society for the Protection of an:$&. (Emphasis added).

p. 1318Honorable MarkWhite - 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 anecessary 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

TheTexas 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 tdealwith 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 ,dyingof starvation.

JIM MATTOX **Attorney** General of Texas
TOEGREEN First Assistant **Attorney** General

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DAVIDR. RICHARDS Executive Assistant **Attoruey** General
RICKGILPIN Chairman, Opinion Committee Prepared by Jennifer Riggs Assistant **Attorney** General
APPROVED: OPINIONCOMITTEE Rick Gilpin, Chairman SusanGarrison TonyGuillory SusanEenricks JimHoellinger Jennifer Riggs

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