OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS

JOHN CORNYN

September 4,2002

The Honorable Toby Goodman Chair, House Committee on Juvenile Justice and Family Issues Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 Opinion No. JC-0552

Re: Whether a county is required to establish a certificate of registration program for dangerous wild animals, andrelated questions (RQ-0525JC)

Dear Representative Goodman:

You have requested our opinion regarding the duty ofacommissioners court to register and regulate dangerous wild animals in accordance with the provisions of subchapter E of chapter 822 of the Health and Safety Code.’ See TEX. HEALTH & SAFETY CODE ANN.$8 822.101-.116 (Vernon Supp. 2002). For the reasons set forth below, we conclude that the commissioners court of every county that has not entirely prohibited the “ownership, possession, confinement, or care” of dangerous wild animals within itsjurisdictionsee id. 8822.116, isrequired tohave adopted, no later than December 1, 2001, an order “necessary to implement and administer the certificate of registration program” established by subchapter E of chapter 822. See Act of Apr. 25,2001,77th Leg., R.S., ch. 54, 9 6(c), 2001 Tex. Gen. Laws 90, 96. A commissioners court may not exempt from the requirements of subchapter E any person or organization not specifically excepted under section 822.102(a). See TEX. HEALTH

&SAFETYCODEANN.

4822.102(a)(Vemon Supp. 2002). Any resident of the county may bring an action in mandamus in adistrict court ofthe county to compel the commissioners court to adopt the certificate ofregistration program.
House Bill 1362, enacted by the Seventy-seventh Texas Legislature, amended chapter 822 of the Health and Safety Code by adding subchapter E. See Act of Apr. 25,2001,77th Leg., R.S., ch. 54, 2001 Tex. Gen. Laws 90. Section 822.103 provides that “[a] person may not own, harbor,
or have custody or control of a dangerous wild animal for any purpose unless the person holds a certificate ofregistration for that animal issued by an animal registration agency.” TEX. HEALTH & SAFETY CODE ANN. 5 822.103(a) (Vernon Supp. 2002). A dangerous wild animal is defined to include a lion, tiger, cougar, leopard, cheetah, jaguar, bobcat, lynx, serval, caracal, hyena, bear, coyote, jackal, gorilla, baboon, chimpanzee, an orangutan, and an ocelot, or any hybrid therefrom. See id. 5 822.101(4). “Animal registration agency” is defined as “the municipal or county animal

‘See Letter from Honorable Toby Goodman, Chair, House Committee on Juvenile Justice and Family Issues, Texas House of Representatives, to Honorable John Cornyn, Texas Attorney General (Mar. 18, 2002) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable Toby Goodman - Page 2 (JC-0552)

control office with authority over the area where adangerous wild animal iskept or acounty sheriff in an area that does not have an animal control office.” Id. tj822.101(l).

Section 822.104 specifies the requirements for obtaining “an original orrenewal certificate of registration for a dangerous wild animal,” including the particulars of the application. Id. tj 822.104. Certain documents must accompany the application, such asproof of liability insurance,
acolor photograph ofeach animal being registered, aphotograph and astatement ofthe dimensions of the primary enclosure in which each animal is to be kept as well as a scale diagram of the premises, and, if the applicant holds a dealer or exhibitor’s license issued by the United States Department of Agriculture, “a clear and legible photocopy of the license.” Id. 5 822.104(c). An application for renewal must include astatement signed by alicensed veterinarian to the effect that he or she has inspected the animal within thirty days ofthe date offiling the renewal application and “finds that the care and treatment of each animal by the owner meets or exceeds the standards prescribed under this subchapter.” Id. 6822.104(d). Acertificate ofregistration “isnot transferrable and isvalid for one year after its date ofissuance orrenewal unless revoked.” Id. 8822.103(b). The statute permits the animal registration agency to charge a reasonable fee for the “application, issuance, and renewal ofacertificate ofregistration,” not to exceed “$50 for each animal registered” and not to exceed “$500 for each person registering animals, regardless of the number of animals owned by the person.” Id. 0 822.103(c).

Section 822.102 lists eleven exceptions to the applicability of subchapter E.* You first ask whether a county is required to register and regulate all dangerous wild animals kept within its

*“This subchapter does not apply to: (1) acounty, municipality, or [an] agency ofthe state or.
..ofthe United States or an agent or official of a county, municipality, or agency acting in an official capacity; (2) aresearch facility,
as that term is defined by Section 2(e), Animal Welfare Act (7 U.S.C. Section 2132), and its subsequent amendments, that is licensed by the secretary of agriculture of the United States under that Act; (3) an organization that is an accredited member of the American Zoo and Aquarium Association; (4) an injured, infm, orphaned, or abandoned dangerous wild animal while being transported for care or treatment; (5) [or]

. . .while being rehabilitated, treated, or cared for by a licensed veterinarian, an incorporated humane society or animal shelter, or a person who holds a rehabilitation permit issued under Subchapter C, Chapter 43, Parks and Wildlife Code; (6) a dangerous wild animal owned by and in the custody and control of atransient circus company that is not based in this state if: (A) the animal is used as an integral part ofthe circus performance; and (B)

. ..is kept within this state only during the time the circus isperforming in this state or for aperiod oftime not to exceed 30 days while the circus isperforming outside the United States; (7) a dangerous wild animal while in the temporary custody or control of a television or motion picture production company [that is] filming

. . .in this state; (8) a dangerous wild animal owned by and in the possession, custody, or control of acollege oruniversity solely as amascot.

..;(9) adangerous wild animal while being transported in interstate commerce through the state in compliance with the Animal Welfare Act (7 U.S.C. Section 213 1et seq.) and its subsequent amendments and the regulations adopted under that Act; (10) a nonhuman primate owned by and in the control and custody of aperson whose only business is supplying nonhuman primates directly and exclusively to biomedical research facilities and who holds a Class “A” or Class “B” dealer’s license issued by the secretary of agriculture of the United States under the Animal Welfare Act (7 U.S.C. Section 2131 et seq.) and its subsequent amendments; and (11) a dangerous wild animal that is: (A) owned by or in the possession, control, or custody of a person who is aparticipant in a species survival plan ofthe American Zoo and Aquarium Association for that species; and (B) an integral part ofthat species survival plan.” TEX.HEALTH& SAFETY CODEANN. 9822.102(a) (Vernon Supp. 2002).The Honorable Toby Goodman - Page 3 (JC-0552)

borders by anyone and under any circumstance other than those exempted under section 822.102. See Request Letter, supra note 1,at 1.

On the one hand, subsection 822.116(b) ofthe Health and Safety Code permits acounty by order to entirely prohibit “the ownership, possession, confinement, or care of a dangerous wild animal.” TEX.

HEALTH

& SAFETY

CODE ANN.0822.116(b) (Vemon Supp. 2002). On the other hand, ifacounty opts not to bar absolutely the keeping ofdangerous wild animals, section 6ofHouse Bill 1362 provides that “[n]ot later than December 1,2001, each municipality and county shall adopt any ordinance or order necessary to implement and administer the certificate ofregistration program.” Act ofApr. 25,2001,77th Leg., R.S., ch. 54,§ 6(c), 2001 Tex. Gen. Laws 90,96 (emphasis added). Section 311.016(2) of the Government Code declares that, “unless the context in which the word

.

..appears necessarily requires adifferent construction orunless adifferent construction is expressly provided by statute

. . . ‘[slhall’ imposes a duty.” TEX.GOV’TCODE ANN.5 311.016(2) (Vernon 1998). Thus, a plain reading of House Bill 1362 requires a county, unless it has prohibited the keeping of dangerous wild animals within its jurisdiction, to have established a certificate of registration program by December 1, 2001. In fact, as we have noted, an “[alnimal registration agency” is defined as, inter alia, “a county sheriff in an area that does not have an animal control office.” TEX.HEALTH& SAFETYCODEANN. 5 822.101(l) (Vernon Supp. 2002). Although subsection 822.116(a) provides that “[tlhis subchapter does not affect the applicability of any other law, rule, order, ordinance, or other legal requirement of this state or apolitical subdivision ofthis state,” see id. 5 822.116(a), this provision may not be used by acorntnissioners court to ignore the clear directive ofsection 6ofHouse Bill 1362, which requires acounty to implement and administer
acertificate ofregistration program. See Act ofApr. 25,2001,77th Leg., R.S., ch. 54,§ 6(c), 2001 Tex. Gen. Laws 90, 96. We conclude that every county that has not entirely prohibited the “ownership, possession, confinement, or care of adangerous wild animal” within itsjurisdiction is required, by December 1,2001, to have adopted an order “necessary to implement and administer the certificate ofregistration program” established by subchapter E, chapter 822 ofthe Health and Safety Code. See TEX. HEALTH

&SAFETY

CODE ANN.4822.116(b) (Vernon Supp. 2002); Act ofApr. 25,2001,77th Leg., R.S., ch. 54, 66(c), 2001 Tex. Gen. Laws 90,96.

You next ask whether acounty may exempt from the requirements ofsubchapter E aperson ororganization other than those specifically exempted under section 822.102(a). SeeRequest Letter, supra note 1, at 1. As we have indicated, section 822.102(a) lists eleven exceptions to the registration requirements of subchapter E. See supra, note 2. It is a well established rule of construction that where a statute contains express exceptions, no other exceptions may be implied. See State v.Richards, 301 S.W.2d 597,600 (Tex. 1957); R.R. Comm ‘nv. Olin Corp., 690 S.W.2d 628, 631 (Tex. App.-Austin 1985, writ ref d n.r.e.) (“When there are specific exceptions in a statutory definition, no other exceptions aretobepresumed.“). Thus, acounty may not exempt from the requirements of subchapter E aperson or organization not specifically exempted under section 822.102(a). Finally, you ask who has standing to enforce the mandate ofHouse Bill 1362, which directs
acounty to implement and administer acertificate ofregistration program, and what remedies are available to enforce that mandate. See Request Letter, supra note 1, at 1. As we have observed,The Honorable Toby Goodman - Page 4 (JC-0552)

section 6(c) of House Bill 1362 imposes a duty on counties to create a certificate of registration program. In our view, the appropriate remedy in such a situation is mandamus. “There are three requisites for a mandamus: a legal duty to perform a nondiscretionary act, a demand for performance, and arefusal.” Doctors Hosp. Facilities v.Fifth Court ofAppeals, 750 S.W.2d 177, 178 (Tex. 1988); see also In re Bailey, 975 S.W.2d 430, 432 (Tex. App.-Waco 1998, no pet.) (“Mandamus will issue when there is alegal duty to perform anondiscretionary, ministerial act, a demand for performance ofthat act, and arefusal.“). Because, aswe have determined, House Bill 1362 requires acounty to implement and administer acertificate ofregistration program, doing so is a“nondiscretionary, ministerial act.”

A suit formandamus must be prosecuted by areal party ininterest. SeePorth v. Currie, 613 S.W.2d 534, 538 (Tex. Civ. App.-Tyler 1981, no writ). A “real party in interest” is one who can “show that he has ajusticiable interest in the subject matter in litigation, either in his own right or in a representative capacity.” Id. A justiciable interest is manifest when there is “an actual controversy between parties who have conflicting personal stakes.” Hanna v. Godwin, 876 S.W.2d 454,457 (Tex. App.-El Paso 1994, no writ). If acommissioners court has not complied with the directive of House Bill 1362 and is unwilling to do so, any resident of the county may have a justiciable interest in compelling that body to act. Original mandamus jurisdiction over county officials is vested in the district court in the “exercise of its general supervisory control over the orders of the commissioners court.” Vondy v. Comm ‘rsCourt, 620 S.W.2d 104, 109 (Tex. 1981). We conclude that, where a commissioners court has not barred outright the keeping of dangerous wild animals within itsjurisdiction, any resident ofthe county may bring an action in mandamus in
adistrict court of the county to compel the commissioners court to implement and administer the certificate of registration program established by subchapter E of chapter 822 of the Health and Safety Code.The Honorable Toby Goodman - Page 5 (JC-0552)

SUMMARY

The commissioners court ofevery county that has not entirely prohibited the “ownership, possession, confinement, or care” of dangerous wild animals within itsjurisdiction is required to have adopted, no later than December 1, 2001, an order “necessary to implement and administer the certificate of registration program” established by subchapter E of chapter 822 of the Texas Health and Safety Code. See Act of Apr. 25, 2001, 77th Leg., R.S., ch. 54, 5 6(c), 2001 Tex. Gen. Laws 90’96; TEX. HEALTH

& SAFETY

CODE ANN. 0822.116(b) (Vemon Supp. 2002). A commissioners court may not exempt from the requirements of subchapter E any person or organization not specifically excepted under section 822.102(a). Any resident ofthe county may bring an action in mandamus in adistrict court of the county to compel the commissioners court to adopt the certificate ofregistration program.
Your very truly, 

# 4 (
okJOHN CORNYN Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General -General Counsel

SUSAN DENMON GUSKY Chair, Opinion Committee

Rick Gilpin Assistant Attorney General, Opinion Committee