JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin. TX. 7871 l- 2W 

51214752501 

Telex 91olS74.13S7 

TeIecODier 5121475.0266 

714 Jackson. Suite 700 

Oallas. TX. 75202.4506 

2tU742~8944 

4824 Alberta Ave.. Suite 160 

El Paso. TX. 79%5-2793 

915633.3484 

.Jol Texas. Suite 700 

Houslon. TX. 77002-3111 

7131223-5886 

806 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

8061747-5238 

4309 N. Tenth. Suite B 

MeAllen. TX. 78!301-lSS5 

SlZ’S52-4547 

MO Main Ptua, Suite 400 

San Antonio. TX. ?a2052797 

512122~4191 

An Equal ODD~rt~nilyl 

Allirmatlve Action EF’DtovnThe Attorney General of Texas 

December 31, 1984 

Eonorable Mark Whit<% 

Governor of Texas 

P. 0. Box 12428, Capitol Station 

Austin, Texas 787 1.1 

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~ous horses. You indicate that 

Opinion No. JM-294 

Re: State authority to destroy 

privately owned starving or 

diseased animals 

[allthough the situation seems to have now abated 

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 may be 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 many concerned individuals and associations. 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 may be needed. . . .‘I 

“to determine vbat , if any, new 

Although this office cannot suggest 

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 

it presently exists. 

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. 

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 

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. 

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.” 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&. 

1914. writ ref’d). 

172 S.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 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. 

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 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: 

OPINION COMITTEE 

Rick Gilpin, Chairman 

Susan Garrison 

Tony Guillory 

Susan Eenricks 

Jim Hoellinger 

Jennifer Riggs 

p. 1320